Reform and the “Chaos Syndrome,” Part II

June 24, 2016
posted by Bob Bauer

Jonathan Chait disagrees with the Jonathan Rauch’s point about the bite-back effects of modern reform as one explanation for political dysfunction. The problem Chait sees is that the GOP has gone mad and that a reversal of course on reform—e.g. opening up more resources for the parties—won’t make any significant difference.

Rauch does not dispute that there is a limit to what can be expected of his reform-the-reforms program. He also looks for the source of the problem in wider causes, though his emphasis is not on the qualitative difference between the major parties’ styles, tone and tactics. He does suggest that the 1970’s reforms, including but not limited to the passion for full transparency, can make it harder to achieve constructive discussion and compromise even when this healthier politics might otherwise be possible.

Chait cites studies validating his case that the resistance to compromise with a reviled opposition has advanced to a destructive degree within the GOP. But there is evidence to suggest that this hyper-partisanship may be spreading and there may be less to distinguish partisans on this score over time if the current trend holds. Pew has just published a study concluding that “partisans’ views of the opposing party are now more negative than at any point in nearly a quarter of a century.” Among its findings: “Exactly half of Republicans and 46 percent of Democrats said they find talking politics with a member of the opposing party to be ‘stressful and frustrating.’”

Reform and the “Chaos Syndrome”

June 21, 2016
posted by Bob Bauer

In an article just published in Atlantic, Jonathan Rauch argues that modern political reform has contributed to a disastrously weakened capacity for responsible, functional self-governance.The damage has been done to critically needed intermediary institutions, such as parties, whose effectiveness depend on allowances and practices now associated with old-style politics: less transparency in the conduct of government business, more resources for parties and their leadership, more of a role for party leaders and elites in screening candidates, and more flexibility for congressional leaders to utilize tools like "pork" to induce cohesion in the legislative ranks. The result of the change has been what he calls “chaos syndrome.”

Rauch does not claim that the reforms all without merit, or that we can or should leapfrog back to the end of the 19th or early 20th century. But, he says, by scaling back or adjusting certain of these reforms, something can be done to restore functionality to our politics—to contain the “chaos.”

Writing perceptively about this problem of reform’s “unintended consequences, ” Rauch recognizes that there are “other, larger trends” in the political culture responsible for this syndrome. For example, he cites the “politphobes” among voters who are convinced that there are clear remedies, beyond reasonable disagreement, to the nation’s ills, and that only the politicians and their political shenanigans and dark conspiracies have gotten in the way. He faults the reforms, for exacerbating this and other problems, just as he appreciates that revisions in the 1970’s reform model won’t somehow alone bring order out of the chaos.

It would be mistake, and maybe a trap, if Rauch’s analysis were taken to call only for re-evaluation of reforms already enacted. The argument taken primarily in that direction is sure to activate the same tired debates, feeding into the standard fear that politicians, "rolling back" reforms,  are taking care of themselves at everyone else’s expense. No less important is bringing Rauch’s analysis into a discussion of the proposal of new reforms.

One question recently raised here is whether in thinking about campaign finance reform, New York Times editorialists and their followers would place a limit on how much would be spent, and how negatively, to keep Donald Trump out of the White House. The Times believes him to dangerous to the country, entirely unfit for office, at the same time that it counsels that the process by which he or any candidate is evaluated must include restrictions on expenditures to urge defeat (or election). It is fair to note these tensions, testing reform principles and intuitions in the concrete conditions of electoral competition where there are found real candidacies, meaningful choices, and serious consequences.

A similar test might be conducted in the case of limits directed toward the timing of certain speech. Under campaign finance jurisprudence, the First Amendment recognizes a difference between fully protected “issues” speech and the speech with the effect or purpose of influencing elections that may be regulated to prevent corruption or its appearance. The reforms of recent years have whittled away at the distinction, regulating electioneering communications on policy issues that may contain a reference to a candidate and so, being close to an election, could sway voters. The usual formula ropes this speech into regulatory control within thirty or sixty days of an election.

The reform theory has been that the purpose of such communications is likely to influence an election, and if not the purpose, then its effect, and records have been assembled to establish that the spenders have in mind to make a mockery of the law and that stricter enforcement is therefore essential. In the thick of the election, it is argued, the candidate/issue line distinction does not hold, and the aims of campaign finance laws, both limitations and disclosure, should control. The Supreme Court has trimmed back this theory, and a now complex jurisprudence allows for election season-specific regulation of communications “susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate.” Wisconsin Right to Life v. Federal Election Commission, 551 U.S. 449, 469-470 (2007).

In the current election, the Trump candidacy will test acceptance of the basic reform tenet about the election season regulation of issues speech.  With the debate about Trump has come a debate about the package of stances that has come to be known as “Trumpism.” A number of his supporters have defined it as “ secure borders, economic nationalism, interests-based foreign policy, and above all judging every government action through a single lens: does this help or harm Americans?” It is recognized that the program cannot be argued, for or against, without reference to Trump: “For now, the principal vehicle of Trumpism is Trump.”  And Trump critics, ones as severe as Paul Krugman, recognize the “Trumpism” behind Trump.

The Supreme Court will soon decide whether to take up a major case about disclosure and this has received little attention—far less than it should. At issue is the clarification of how far government authority extends in requiring the disclosure of the financing of “issues speech”--speech or just information about candidates’ positions that does not involve engaging in advocacy of their election or defeat. There are reasons why the case might have been overlooked: it involves a small organization in a small state, and the activity concerns state and local, not federal (much less presidential), candidates. Perhaps, also, because it is “just” about disclosure, this case might be supposed to pose little danger of harm to anyone’s rights or legitimate expectations.

This is serious business. As the states move along with their own reform programs, and as litigation proceeds under different standards applied by different circuits and diminishing consistency in the treatment of federal and state or local-level enactment, disclosure doctrine is losing its coherence, and key constitutional distinctions once taken for granted are being rapidly eroded. One disturbing result: the “big” and sophisticated spenders at the federal level are more protected than the “little guy” at the levels below.

In the case in question, Delaware Strong Families v. Denn, the speech took the form of a Voter Guide that reproduced positions supplied by the candidates themselves, or in the case of candidates who declined to cooperate, their stated positions drawn from the public record. DSF is a 501(c)(3) barred from endorsing candidates, unlike an affiliated (c)(4) that may and does. There is no allegation that the (c)(3) is evading the prohibition on partisan speech. Delaware has enacted a disclosure law that applies to this Guide, requiring the disclosure of DSF donors who have given over $100 over a four- year period. The law covers all speech referring to candidates, whether by broadcast, mail or Internet, within 30 days of a primary election or 60 days of a general. It is triggered by the expenditure of more than $500 without regard to the size of the audience.

DSF sued and won in district court, then suffered a reversal of fortune in the Third Circuit Court of Appeals. The short opinion issued by the Third Circuit is striking in its breadth and, one might say, daring. It looks past the critical Buckley distinction between express and issue advocacy, apparently in the belief that, on this point, the 1976 decision has been overtaken by the decisions in McConnell and Citizens United, especially the latter, which it reads to allow for the regulation of any issues speech that could influence voter choice. So, on the assumption that its position is well supported by recent developments in the constitutional law, the Third Circuit embraced this view:

By selecting issues on which to focus, a voter guide that mentions candidates by name and is distributed close to an election is, at a minimum, issue advocacy. Thus, the disclosure requirements can properly apply to DSF’s Voter Guide…”

793 F.3d 304, 309 (July 16, 2015)

The State of Delaware has joined with reform organizations to defend this proposition. It concedes that the statute is expansive in reach, sweeping in smaller organizations and small-scale spending. But it justifies aggressive disclosure policy in a state the size of Delaware, where a little spending goes a long way. It contends that states have the right to decide how much spending is effective in the local conditions in which it occurs, taking in account the size of the electorate and other factors, and to apply disclosure requirements accordingly.   And the states can conclude that issues speech—in this case, the duplication of material the candidates supply –triggers mandatory disclosure of small donors in the interests of an informed electorate.

Ominous Uncertainty at the FEC, The Sequel

June 8, 2016
posted by Bob Bauer

The Republican Commissioners have now explained why they would not agree to investigate claims that a company pressured employees to make political contributions. Their joint Statement is a skillful piece of work and, on certain of the specific evidentiary issues in this case, it scores a point or two.

But:

These Commissioners understand that they are both disposing of the particular case and making a broader statement about the law, and what comes across in their analysis is the narrowest of readings of the protections against coercion. To them, this is a First Amendment issue—the right of a company to promote employee giving, so long as a) it faithfully includes anti-coercion language as required by law in all written solicitations, and b) applies heavy pressure without explicit threats. The Republican Commissioners have mapped out a path for employers to badger those who work for them into making contributions. Nowhere in their analysis do they display much interest in the First Amendment interests on the other side of this relationship, among the employees-- except for this sentence, which makes a lonely appearance at the beginning and appears to have little effect on the balance of the analysis: “The coercion of a person’s political contributions to a [PAC]…is a grave interference of a person’s core constitutional rights.”

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