“Not Authorized”

November 29, 2015
posted by Bob Bauer

Right now the basic complaint about Super PACs is that they can enlist the and endorsement support of their favored candidates, as in fundraising, and still claim they are “independent” and spend without limit.  But the Supreme Court—not the FEC, not wily campaign finance lawyers—is the reason why this is possible.  In Buckley, the Court tied “independence” to the coordination of specific expenditures with candidates. Without this coordination, the Buckley Court determined, the candidate runs the risk that the expenditure could be unhelpful or counterproductive and is not fairly charged with a “contribution” subject to limits.

No candidate request, control or involvement means, therefore, no spending limits.  The independent committee's public advertising then must contain a specific statement that the candidate did not "authorize" the communication. 11 C.F.R. §110.11(b)(3). This may be true, but the voter checking the committee’s formal registration with the FEC will find that the committee declares itself, and not just a specific expenditure, to be unauthorized.

In a technical sense, this is true: the committee is “unauthorized” because it is an independent committee whose expenditures are made without the candidate’s direction or involvement.  But the absence of control over or involvement in particular independent committee expenditures does not mean the absence of any contact with the committee.  The candidates can applaud an independent committee’s formation and operation for their benefit, and they may appear at the committee's events as guests or featured speakers and assist with its fundraising.

Voters may well be perplexed.

The Reform Debate and the Parties

November 24, 2015
posted by Bob Bauer

The reform debate about the political parties is getting stuck on the question of whether, or to what extent, deregulation will improve the tone and ideological cast of national politics.  Some have argued that relieving parties of this or that restriction will alleviate pressures toward polarization and perhaps promote more centrist, moderate politics, in large measure by giving party leaders more influence.  There is some evidence for this, but it is naturally being disputed in a fight between the “purists” who resists deregulation and the “pragmatists” who favor it, and neither side to this debate is likely to score a decisive victory.  So if there can be no clear outcome, there is every reason to hope that not too much is riding on one.

When one day it has more or less run its course, the scholarship will likely show the party leaders with more money at their disposal can use it for better and for worse.  In some cases they will have the will and the means to check the extremes and expand their capacity to negotiate with opponents and move productive legislation. In others, this will not be the case.  Which of these alternative scenarios comes to pass in any state, in any time, will depend on a range of factors, including differences in states and regions and their politics, differences between the parties, the complexities of what is sometimes called the "issue environment,” and other factors.  As Lee Drutman has noted, “polarization is a function of many, many things,” and campaign finance may be only one such thing.

Before all these questions is another one: the difficulty of pinning down what one means by centrist or moderate politics, or even by a civil tone (notwithstanding some contemporary, notable examples of grotesque excess).  And another question: whether the moderate position is in all circumstances the most desirable one, if the policy described as “moderate” is just a product of splitting the difference.  The policies born of getting something done just for its own sake are not always distinguished by their effectiveness.

It is a better bet – – and a bet it is – that some of the time, empowered party leadership with stronger parties behind them can better perform their jobs. Right now they compete for their political influence with candidates who can build their own fundraising bases, and with outside groups (some of which, like Super PACs and (c) organizations, can be indistinguishable from the rest of a candidate’s, well, “support network.”).  To put parties at a disadvantage in this transformed political battlefield should require sound, well-supported policy justification.  Four years now, the justification has fallen entirely on the parties’ supposed role in fomenting corruption, the result of their (once) unique intimacy with candidates.

The FEC and Late-Night Comedy

November 20, 2015
posted by Bob Bauer

FEC Chair Ravel is not the first former or present Commissioner to turn to Comedy Central to lampoon her own agency.  Trevor Potter, once also a Chair, came to run a major reform organization that collaborated on bits of high comedy with Stephen Colbert. He even would emerge for his performance in a shower of dollars from something called the Mazda Scandal Booth. But he was out of the agency then and Ms. Ravel is still running it, and she decided that she had had enough of the FEC’s dysfunction and would play it for laughs. One of her colleagues was not amused.

Chair Ravel defended her appearance as free speech and as the only way now, all else having failed, to make her point. The problem for the FEC in any resort to high comedy is that the audience may misunderstand the joke. It is not a far cry from laughing at the agency to laughing at the law and concluding that politicians will never make or enforce rules against their own interest. The same ridicule can and has been directed at reform proposals.

The quips at the FEC’s expense depend on clever bits of exaggeration and oversimplification that, in the best humor, expose some measure of truth. The tricky part is keeping the exaggeration under control so that it does not overwhelm the routine and strike a false note. Does the audience come away both entertained and better informed, or at risk of being misled?

Disclosure Wars

November 16, 2015
posted by Bob Bauer

Sometimes those who disagree about campaign finance are almost deliberately talking past each other, dreading any concessions because, they think, to give an inch is to surrender a mile.  This seems increasingly the case in arguments about disclosure and a good example are the opposing reactions to the Supreme Court's recent decision to decline review of California's 501(c)(3) disclosure requirements upheld by the Ninth Circuit in Center for Competitive Politics v. Harris, 784 F.3d 1307 (9th Cir. 2015).

Here is one fundamental difference: the belief on the part of decision proponents that it was a victory for campaign finance disclosure, and reply by critics that it had nothing to do with campaign finance at all.  And indeed, in technical terms, the case is not a campaign finance case – – it does not involve electoral activities, which 501(c)(3)'s may not conduct, and the information that the government is asking for is not in theory to be made available to the general public but only for the use of authorities for law enforcement.

To those who favor the State of California’s position, however, its significance goes well beyond its holding viewed in the most narrow terms.  If the case did not concern campaign finance, they seem to be saying, it was close enough: it involved a privately funded nonprofit advocacy organization, and a court willing to invalidate those disclosure rules might be tempted to export this critical attitude to the sphere of campaign finance.  There is a fear at work here that if a crack opens in disclosure requirements anywhere, they could expand to swallow up the campaign finance rules. On this theory, the court should be favorable to disclosure of political activity all kinds, to avoid damage down the line to rules of one particular kind.

The discussion of the parameters of compelled disclosure has become, in this sense, politicized.  Anxieties about the collapse of the campaign finance laws are gathering around all roughly similar disclosure requirements as a sort of last stand.  Rick Hasen has written that "campaign finance disclosure laws are under attack" and that much of the criticism has been "offered disingenuously with the intention to create a fully deregulated campaign finance system." Richard L. Hasen, Chill Out: A Qualified Defense of Campaign Finance Disclosure Laws in the Internet Age, 27 J.L.& Pol. 557, 559 (2012).  In his view, because the questioning of disclosure requirements is in many cases "pretextual”, id. at 559, this Court must be closely watched, because if it appears to move away from transparency in any case involving public advocacy, the end could be near. The Court could be poised to water down the disclosure commitment expressed in Citizens United.

Meanwhile, the important doctrinal question of how to measure the costs as well as the benefits of compelled disclosure is passing out of focus.  There is general acceptance that harassment is a cognizable injury threatened by disclosure of a nonprofit association's members and donors, and that in Buckley v. Valeo, 424 U.S, 1 (1976) and Brown v. Socialist Workers ’74 Campaign Committee, 459 U.S. 87 (1982), the Supreme Court provided a remedy through exemptions that can be granted in particular cases to endangered speakers.  But on the question of how this exemption should be structured or operate, the differences are wide.

Justice Kennedy at Harvard

November 9, 2015
posted by Bob Bauer

Visiting Harvard Law School, Justice Kennedy answered a question about Citizens United by saying "what happens with money in politics is not good."  And he tied certain of these unfortunate effects to that case: the "result is not happy."  Frank Wilkinson of Bloomberg News wondered if the Justice was having “second thoughts” about his campaign finance jurisprudence.

The Justice did not say clearly what about the use of money in politics is not good, or in what particular respects the results of Citizens United are not happy.  Part of the problem, he said, was disclosure, which is too slow.  With faster, Internet-speed reporting, voters could decide whether a candidate receiving certain sources and amounts of money deserve their vote.  This is as far as he would explicitly go, but there were hints of other reservations that he would still have about undoing Citizens United.