When the Law Can Seem a Bit Much, Mutch Explains

August 30, 2016
posted by Bob Bauer

In this pre-Labor Day period when blogging will be light, here are a few notes:

1. Robert Mutch, who has written extensively about the history of campaign finance, has now published a guide to law and rules, Campaign Finance: What Everyone Needs to Know, just published by Oxford University Press. He means “everyone.” It is a citizen’s manual, with accessible explanations of abstruse statutory regulatory, and case law material, a chronology of major developments, and a glossary of key terms. He also provides throughout comments on the campaign finance reform debate. Mutch has a point of view on reform issues--who doesn’t?--but it is not harmful to his project. It adds a little zest to the discussion and more interest, therefore, for the general reader.  That reader has long deserved a resource like this, and here it is, courtesy of Robert Mutch.

2. That same general reader might want to puzzle over some of features of the well-worn law that is Mutch’s subject. An interesting case now on appeal to the Supreme Court, which goes by the name of a plaintiff with an unambiguous politics--Stop Reckless Economic Instability Caused by Democrats--questions why it is that political committees in existence for at least six months, so-called “multicandidate” committees, may give upon passing out of their infancy more to candidates but less to political parties (provided they also meet other minimal conditions on the level of support received and given).  The multi-candidate committee satisfying this 6-month waiting period can give a candidate another $2300 per election, for a total per election limit of $5,000. But its contributions to national and state parties are substantially cut from $32,400 to $5,000 and from $10,000 to $5,000, respectively.

Trump, Taxes, and the Choice of Law or Politics

August 18, 2016
posted by Bob Bauer

Mark Patterson observes that Donald Trump refuses to make the personal tax disclosure that is routinely and without exception expected of senior federal officials. He describes Congress’ strict enforcement of this obligation, which includes the deep probing of returns by the Senate Finance and other congressional committees that, in Patterson’s words, require “answers [to] dozens of detailed questions about sources of income, deductions, investments, tax treatment (and immigration status] of domestic employees and other topics.” Yet Trump says that in his case, it is “none of your business,” and so he is relying on the absence of any legal requirement of disclosure to deny the public what the senior officials he would appoint if President would have to provide. Patterson recommends that either the law be amended to compel presidential candidates to release this information or to provide it to congressional committees for review followed by a public assessment. (Note: Mark is one my colleagues at Perkins Coie.)

Why would presidential candidates, charged with reporting specific categories of financial information, not have to include their tax returns? The choice now is deemed to be theirs: a choice determined only by the pressures, or incentives or disincentives, of the political “marketplace”, or a personal sense of ethical obligation.

Committing this question to a purely political resolution represents a judgment that voters will set and enforce the transparency standard. They will either reward disclosure or punish candidates for resisting it, but one way or the other, voter will is what counts, and there is no need or place for a legal requirement. In fact, on this theory, it is better for the question to be referred to the voters, because they are the ones to ‘vet” the presidential candidate and to insist on what information they should have to meet their “vetting” function.

Corporate Regulation of Internet Politics

August 15, 2016
posted by Bob Bauer

Nate Persily has written intriguingly about the “dangers” and “opportunities” presented by the increasing prominence, and perhaps eventual dominance, of Internet platforms as outlets for paid political speech. We’re not in a television age anymore, he cautions. Now we have portals that have fundamental decisions to make about whether and how to apply policies devised for commercial speech to political communications. Those decisions concern standards of tone, fairness, accuracy and content, e.g. hate speech, but also those of transparency, such as requiring more complete disclosure than the just an organization’s name might provide of the true sources of financing for its paid ad.

The opportunity Professor Persily sees is for these Internet platforms to effect policies beyond the constitutional authority and probably the political reach of the government. The danger he points out is that private organizations may use their market power to engage in censorship practices and to do so without full transparency or accountability.

This is a timely, insightful call for attention to a transition in the political marketplace that might otherwise escape full and searching notice. A major problem is the one of trying to have it both ways. We might ask these Internet platforms to be restrained in the exercise of their power in some respects, but less in others, depending entirely on variable judgments of the worthiness of the goals. Professor Persily has suggested measures to address what he describes as “well-known pathologies of the campaign finance system.”

The Seventh Circuit insists that the district court in the Wisconsin ID litigation was too lenient with the option of an affidavit for voters who could not with reasonable effort obtain a qualifying photo ID. So the Court directs that this relief be limited to the class of voters in genuine need, and it is seeking from the court below “objective standards” election officials could use in determining what constitutes “genuine difficulties” in obtaining ID.  To support its position, the Seventh Circuit cites a portion of Crawford, offering this selection:

Yet the Supreme Court held in Crawford v. Marion County Election Board, 553 U.S. 181, 198 (2008), that “the inconvenience of making a trip to the [department of motor vehicles], gathering the required documents, and posing for a photograph surely does not qualify as a substantial burden on the right to vote, or even represent a significant increase over the usual burdens of voting.” A given voter’s disagreement with this approach does not show that requiring one trip to a governmental office is unreasonable.

The Seventh Circuit chooses to omit the opening three words of this sentence in Crawford: “For most voters…” In other words, the Supreme Court in Crawford does not say that the inconveniences are minor for all voters, but more generally for most voters. It does not even suggest that the number of voters for whom these inconveniences would be significant are small or trivial in number, only that it is a “limited number” and that “most voters” don’t confront the problem. Crawford suggested that the limited number may include elderly persons born out of state and those economic and unspecified “personal” limitations. 553 U.S. 199.

Political Morality and the Trump Candidacy: Part II

August 8, 2016
posted by Bob Bauer

Donald Trump doesn’t have any particular feeling for irony and so he misses it altogether in his recent suggestion that the coming election is likely to be rigged against him. Of course he’s now doing the rigging: he’s rigging the post-election assessment of the results. If he wins, it reflects the will of the electorate; if he loses, that will has been thwarted, by a rigging.

This raises the question discussed here of whether, if there are limits to ends-justifies-the-means political ethics--if it is accepted that there are superior and inferior types of political morality-- Trump has exhibited clearly a moral style that is both distinctive and troubling.

It does not seem that there is a clear and shared view of when political ethics have become unacceptable, and so, in Trump’s case, the analysis has now shifted to issues of mental health. It is not suggested that his lying exceeds the limits of the ethically permissible but that we have departed from the domain of ethics altogether.