The State of the Debate

May 18, 2015
posted by Bob Bauer

The Supreme Court has been asked to consider whether the Attorney General of California may require tax-exempt organizations to produce donor information normally provided only to the Internal Revenue Service. The petitioner, the Center for Competitive Politics, argues that the Ninth Circuit has improperly upheld this requirement by giving the State ready access to this information on a slim-to-none showing of need.  The Attorney General has asserted that the information will be useful to the State’s attempts to enforce the law, such as the protections against self-dealing or improper loans.  Others apparently suspect that there is more going on, namely, a move to discourage the sort of politically shaped tax-exempt activities associated with the Koch brothers.

This is an important case, now before Justice Kennedy.  It is the latest turn in a troubled reform debate.   First there is the fight over disclosure, which is relatively new. For years this was supposed to be the common ground that camps badly divided over other forms of regulation could occupy: but no more.  And just as reform communities have suspected political actors of cheating on the law, engaging in “circumvention,” now skeptics of regulation fear that, in the absence of consensus on legislative reform, state actors are resorting to extralegal administrative remedies.

Over the weekend, on the election law listserv, a snippy exchange quickly developed about the California case and what it represented.  In some part, the views fired back and forth reflected the widespread assumption that positions on reform can be explained primarily by reference to their proponents’ political objectives.  It is believed that reformers want regulation to advance progressive policies, or that their antagonists oppose regulation because they wish to surrender political power to the marketplace.

Also, as the comments on the listserv illustrate, it remains the belief of many supporting reform that it would be possible but for the disinclination of politicians and regulators to “do anything about it.” The argument goes like this: the FEC could do something about this, but it is dysfunctional; politicians could do something about this, but they are hypocritical.  It is just a matter of will, they insist. This is the standing journalistic and editorial narrative.  Right in the middle of a fierce disagreement, it is somehow imagined that the unflinching exercise of political power can overcome it.  But if McCain-Feingold teaches anything, it is that the question cannot be forced, any more than 5-4 decisions of the Supreme Court can be persuasive to the losing side.

In this environment, each side will take what it can get without worrying too much about whether what it gets is worth having.  A good example is the Supreme Court’s recent performance on judicial campaign finance, in Williams-Yulee. Progressives were delighted with an opinion that is not a model of clear reasoning, consistency with precedent, or rigor.  In some respects this decision mirrors everything unsatisfying about the campaign finance debate

What the Chief Justice had to say about judges not being politicians was wildly overdrawn.  It is too flattering to elected judges and lets regular politicians too much off the hook.  It is wrong to deny that judges are sometimes politicians. As Burt Neuborne has pointed out, it is also a mistake to pretend that regular politicians should not sometimes act like judges and put to the side the wheeling and dealing.

And the Court’s decision does something that modern campaign finance law and enforcement is generally criticized for: it enshrines sharp practices by which that which is prohibited directly can be done indirectly, hardly a gain for public confidence in the integrity of the “system.”   There is no reason to believe that the judge hiding behind a campaign committee that she established and controls, and whose fundraising returns she is free to scour, and whose donors she is free to thank, is anymore distant from the sources of financial support and less corruptible by them than if she personally asked for the contributions. Among the Chief Justice’s strained attempts to defend this position was a labored analogy to the way Girl Scouts sell their cookies.

Yet progressives will take their victory where they can and here they were pleased with the results and willing to overlook or welcome the road by which the Court had to travel to get there.  But this brings us back to the fights ahead. The question that will have to be asked of progressives is whether tactical victories accomplished outside the legislative process serve the long-term interests of their cause.  And both they and their conservative or libertarian critics will have to decide whether there is any common ground anywhere left, or it is a zero sum game.

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