The Lessig-Mann Dust-Up

August 31, 2015
posted by Bob Bauer

Larry Lessig is not the first single-issue candidate in American presidential history, but from Tom Mann’s perspective, he picked the wrong issue.  Mann says that to isolate money-in-politics, to treat it as the key to solving all other problems, is to “dumb down” politics.  He takes this to be a disservice to voters, a deception, and a diversion from the discussion of other issues that have to be tackled and the successful resolution of which will not decided by campaign funding.

It is a harsh attack, and a surprising one from Mann, a stalwart supporter of campaign finance reform.  Lessig has responded by suggesting that Mann is in no position to accuse him of gross oversimplification: he notes that Mann has singled out the Republican Party as the culprit in the dysfunctional polarization of national politics, and this, Lessig contends, is an even “simpler story” than campaign finance about what ails the country.

Larry Lessig, articulate and impassioned, keeps at the task he has set himself in arguing the case for political reform. It has led him to experiment: as in setting up a Super PAC, which is not what a campaign finance reformer would be expected to do. Now he is on to something new, considering a run as a Referendum President who would bid for a mandate for political reform and then, if successful, serve only as long as needed to bring the reform about. Then power would pass to the Vice President and he, Lessig, would depart the stage.

This “referendum” candidacy is also a reform proposal, a call to evaluate on exceptional criteria the merits of a Presidential campaign and the performance of a President. It can be considered separately from the soundness of the specific measures that, as President, he would press Congress to adopt on campaign finance, voting rights and redistricting. The question the candidacy raises is how he proposes to campaign for those measures, and what sort of Presidency he is arguing for, and one has to assume that he is promising a candidacy, then a Presidency, that meets fundamental expectations for a better, reformed politics. It would take the voters seriously, engaging them in a substantive exchange on the merits of this way of thinking about the election of a President.

The Question of Super PACs in the Post-Buckley World

August 3, 2015
posted by Bob Bauer

The court’s worst blunder, she said, was its 2010 decision in Citizens United "because of what has happened to elections in the United States and the huge amount of money it takes to run for office.”

This is what Justice Ginsburg has said, but is not clear without a bit of guesswork which she means.  But it seems to be about “what has happened to elections", including cost, and not so much how the conduct of elections translates into bad or corrupt government.  One cannot read too much into it: the comment is short, but her few words describe a problem with the electoral process.

Distortion of that process, or the interference with its ideal functioning, is a major worry for those observing money in politics, separate from any consequences for the integrity of government that the politicians, once elected, are responsible for running. This electoral corruption of elections is different from the quid pro quo corruption of government that animates the strictly constitutional and legal debate.

In Friday’s New York Times, Stuart Stevens refers to just the electoral impacts of campaign finance when discussing the effects of Super PACs in altering the character of Presidential primary competition.  A number of the now 17 candidates entering the Republican Presidential primary have jumped in with the confidence that, with a Super PAC at their side, they have the resources to hang in there for a spell. Doing well in the first primaries is no long an invariable condition of viability.  Stevens is not all that worried about it: he likes the free-for-all.  Others are less sure.

These understandings of “corruption” can be, and often are, conflated, but are very different.  The case against Super PACs as agents for electoral corruption is straightforward: a handful of individuals can float a candidacy lacking in more general public support and keep it artificially alive.  The costs increase for other candidates; debate stages are crowded with contenders who are not truly viable over the long-term; and the mechanism by which public preference is measured is skewed.

Perhaps for this reason, it goes unnoticed that arguments directly related to government corruption—and proposals for reform based on them—seem, by contrast, increasingly clouded and tenuous.

Questions of Criminal Enforcement

July 28, 2015
posted by Bob Bauer

In the wake of the Wisconsin case, and in the arguments more generally about “’coordination,” it has been suggested that not too much should be made of the dangers of criminal investigation in campaign finance cases.  Hard-charging investigative techniques employed in the service of creative theories of liability are staples of white-collar criminal enforcement.  Why, critics such as Rick Hasen ask, should campaign finance law enforcement be different?

The question of whether criminal campaign finance investigations are just like any other is worth careful consideration, detached from a lively, high-stakes conflict like Wisconsin’s.  The federal experience is instructive.

The Seventh Circuit decision in Blagojevitch is an intriguing example of judges trying to draw careful distinctions between what is criminal, and what might be acceptable, in the conduct of politicians. Their aim is to protect standard political “logrolling” from criminal prosecution. Among other counts on which he was convicted, the former Governor was charged with trading an appointment to a Senate seat for a position, for himself, in the Cabinet.   The United States threw the book at him—Hobbs Act extortion, honest services fraud, and bribery with public funds-- but where the prosecutors saw perfidy, the Court found only the ways of politics. It specifically rejected the government’s emphasis on Blagojevich’s logrolling for his own benefit—this is how the prosecution would separate political logrolling from impermissible self-interestedness, but the Court was not convinced.

The opinion is short and does not bring to the surface all of its implications. One question it explicitly left open was what in this analysis remains of 18 U.S.C. §599, which prohibits a federal candidate from promising appointments "to any public or private position or employment" in return for "support in his candidacy.” This was not an issue in the case, but the Court left no doubt that it presents a First Amendment question for another day.

A broader and difficult question is what precisely separates acceptable political “logrolling” from impermissibly personal self-dealing. There is something curious or at least not fully explained in the Court’s analysis, which treats a deal made with campaign money differently from one closed with an offer of a public position. Blagojevich was convicted of trying to sell a Senate appointment for cash but found not guilty of trading it for a government job for himself. In each case he was acting for his own political advancement and proposing to pay with an official act, but the outcome depended on whether campaign cash was thrown into the suggested bargain.