Perspectives on Campaign Finance Reform in the Next Phase

December 15, 2014
posted by Bob Bauer
The Washington Post sensibly suggests that campaign finance reform policy must be recast and that this a job for Congress. The paper’s perspective on the current state of affairs is bleak. Post editors are unhappy with the permissive rulings of the Supreme Court and about the expanded realm of what is often, usually imprecisely, referred to as "dark money." But their emphasis is on "new ways" to improve the law and its enforcement. They suggest a focus on transparency and they call on Republicans who will soon control the Congress to reconsider their reversal on disclosure policies.

A “Third Approach” to Reform?

December 9, 2014
posted by Bob Bauer

To Michael Malbin’s credit, he is taking seriously the political parties’ complaint about the terms under which they must compete for resources and influence with “outside” or independent groups. He accepts that a “rebalancing” is in order, and he proposes a compromise: more room for parties to coordinate their spending with candidates, in return for tighter enforcement of coordination rules against independent expenditure groups. He calls this a “third approach” to reform that which rejects both full de-regulation of party spending and any frontal challenge to the constitutional protections for independent spending.

The authors of the Bright Line Project proposal for ferreting out and regulating 501(c)(4) political intervention have given the matter a considerable amount of thought and have submitted to the IRS a detailed proposal. In a number of respects, the approach that they originally announced has changed. Its purpose, however, remains one of offering clarity where now there is very little, much to the frustration of practitioners looking to offer clear guidance to their clients. It is a worthy project and addresses a major problem: no one knows what distinguishes social welfare from electioneering activity, and the consequences of the confusion have been plain for all to see.

At the same time, the proposal has to answer the question of whether it is possible for the Internal Revenue Service to tackle questions like this with a reasonable prospect of general public acceptance and confidence. There is reason to doubt it. For as noted in analysis of an earlier Bright Line Project proposal, and as seems still true in this revised version, the agency would have considerable discretion in deciding whether 501(c) communications have crossed into the restricted political zone. And this task—operating within the political world—is one which tax agency officials are not trained or well suited for, nor expected to be.

The Van Hollen Case

December 1, 2014
posted by Bob Bauer

In a second round, at the second level of the Chevron test, a federal district court has struck down the FEC's attempt to read a "purpose" requirement into the “electioneering disclosure” rule. Van Hollen v. Federal Election Commission, No. 11-0766 (ABJ), 2014 WL 6657240 (D.D.C. November 25, 2014). The general view is that the Court probably got this right and that to the extent that the issue has remained unresolved for this long, the FEC (once again) should take the blame. Those adopting this position point to Judge Jackson's opinion, in which she lays out in some detail the obscure route by which the FEC arrived at its position.

But, as so often, the FEC is paying handsomely for the complexity of the issue and the sins of others. A fair share of the responsibility for this disclosure controversy lies with the Supreme Court's garbled jurisprudence, which has produced confusion about the constitutionality of campaign finance requirements applied to “issues speech”.

Contribution Regulation and Its Critics

November 25, 2014
posted by Bob Bauer
When the Supreme Court took up the McCutcheon case, and again when it was decided, commentators suggested that the Court might be poised to reconsider the constitutional foundations of contribution regulation. The Justices had done what they needed to do to expand and solidify the right to independent spending; now they would turn their attention, in the same deregulatory spirit, to contribution limits, perhaps laying the foundation for invalidating them. McCutcheon does not by its terms really justify this fear. It did direct attention to the question of how—and not whether—contributions are regulated. And other cases percolating in the court system have begun to confront those questions.