The Campaign Legal Center and Democracy 21 have filed and published with a press release comments on a matter, scheduled tomorrow for FEC consideration, involving political party financing of national conventions.  These organizations have strong views on the alternatives before the Commission, as would be expected. But their choice of arguments says much about contemporary campaign finance debates.  (Note: I am counsel to one of the parties that filed the request for an Advisory Opinion).

The Commission is considering two drafts, one of which would authorize the parties to raise money under a separate limit and with disclosure for the conventions, and the other which would not. It will shock no seasoned observer of the scene to learn that Campaign Legal Center and Democracy 21 object to any additional, if limited and disclosed, funding for party convention activity.  What is most interesting in their comments are two specific contentions. One is an argument about fact, and the other a theory about the exercise of agency interpretive authority.

The  Question of Fact:

Much is made in these critical comments about the exclusive focus of conventions on presidential and vice presidential campaign activity. This view of conventions seems to miss a great deal about their function.

Yes, certainly presidential conventions nominate presidential and vice presidential candidates—that is, they validate the choice made previously by voters in competitive primaries, as well as the further choice the presidential nominee-designate makes of a running mate.  But party candidates up and down the ticket, for federal and state office, are everywhere to be found at conventions. Any number of them are showcased on the convention program or at events organized during the convention period, and onsite. Speaking opportunities for candidates and party officials are sought and provided. Other party business, such as the development of platforms and the establishment of rules, is conducted. Conventions don’t represent the moment of selection of a presidential ticket. And outside the selection of this ticket, there takes place other activity of broader significance to the party and its candidates.

What is the error in this analysis? It appears to be entirely a question of the perspective of these organizations. Rather than see the conventions whole, in all their dimensions, the commenters begin from the standpoint of their studied commitment to campaign finance restrictions, and then focus on which candidates will receive special—in their view, dangerous—funding dispensation if the Commission allows for an additional source of limited contributions. The commenters do not begin the analysis with attention to the activity as a party activity and ask in what way the campaign finance law would sensibly be applied; they begin with their vision of a well-defended legal framework and ask how the funding of convention activity can, on some theory, weaken it.

And it is at this point that their theory of agency decision-making—the “slippery slope” theory—enters into the analysis.

The Theory of Agency Decision-Making:

The commenters argue that should the agency approve Draft B, authorizing an additional limit for party funding within hard money limits and with disclosure, it will invite a proliferation of national party committees, each dedicated to a different party function and claiming special spending rights. They write:

[T]here would be nothing to prevent the formation of a separate national committee (with yet another separate contribution limit) for each party committee activity, such as fundraising, paying administrative costs, “supporting voter registration and get-out-the vote drives,” “publicizing issues of importance to the party and its adherents throughout the nation,” or establishing a national office and State affiliates.

Not only do these commentaries rely on a slippery slope argument, they refer to it explicitly as a slippery slope argument—an extension of the “one long slippery slope” they charge the Commission with constructing for many years.

There is very little in the way of a successful answer to any advocate committed to this kind of argument: she will insist that something terrible will come of a decision, and no amount of reassurance will appease her. But these commenters also do not detect that the same slippery slope line of reasoning can be turned around and used to call into question their own position. For if, because of the fear of slipping down the slope, an agency resists one interpretation, then it must resist for the same reason any other—including interpretations urged by the reform  organizations.  After all, the slope can be slippery in two directions.  And so an agency might be concerned that, without a limiting principle to the slippery slope line of reasoning, the restrictive positions advocated by these organizations will bind its hands in the future, on other issues, regardless of the soundness of the policy or legal reasoning.

This is one function of this slippery slope theory of agency decision-making—a default to “no.”  But a contrary view would be that the Commission is not in business to adopt restrictive interpretations solely because of a generalized fear that in some future cases these will be misapplied on a different set of facts.

The Commission comes to the case well aware that political parties are under considerable pressure in these times to establish competitive parity with nonparty organizations that are not subject to the same regulatory limits and reporting requirements. The opinion request now pending, filed by the Democratic and Republican parties, is only looking to secure limited hard money funding with full disclosure, of a core party function—the conventions—which do not yet fall within the mandate and liberalized spending rights of Super PACs or 501(c)s.

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