When the Law Can Seem a Bit Much, Mutch Explains

August 30, 2016
posted by Bob Bauer

In this pre-Labor Day period when blogging will be light, here are a few notes:

1. Robert Mutch, who has written extensively about the history of campaign finance, has now published a guide to law and rules, Campaign Finance: What Everyone Needs to Know, just published by Oxford University Press. He means “everyone.” It is a citizen’s manual, with accessible explanations of abstruse statutory regulatory, and case law material, a chronology of major developments, and a glossary of key terms. He also provides throughout comments on the campaign finance reform debate. Mutch has a point of view on reform issues–who doesn’t?–but it is not harmful to his project. It adds a little zest to the discussion and more interest, therefore, for the general reader.  That reader has long deserved a resource like this, and here it is, courtesy of Robert Mutch.

2. That same general reader might want to puzzle over some of features of the well-worn law that is Mutch’s subject. An interesting case now on appeal to the Supreme Court, which goes by the name of a plaintiff with an unambiguous politics–Stop Reckless Economic Instability Caused by Democrats–questions why it is that political committees in existence for at least six months, so-called “multicandidate” committees, may give upon passing out of their infancy more to candidates but less to political parties (provided they also meet other minimal conditions on the level of support received and given).  The multi-candidate committee satisfying this 6-month waiting period can give a candidate another $2300 per election, for a total per election limit of $5,000. But its contributions to national and state parties are substantially cut from $32,400 to $5,000 and from $10,000 to $5,000, respectively.

The plaintiff raises the question of how these adjusted limits relates to the objective of preventing corruption and its appearance. The district court held for the FEC, finding that new committees formed on the eve of elections pose a risk of “circumvention” of the legal limits, and it was unimpressed with the answer that these rules favored established interests over grassroots, election-specific activity. The court noted that a “young” committee was free at any time, well before the 6 month test had been met, to spend independently, and outside the limits altogether. It did not explain why a new committee that could give a certain sum to a party, presumably within the limits intended to protect against corruption, would lose that right at the 6 month marker and now have to give less.

On appeal, the Fourth Circuit concurred with the FEC that since the plaintiffs were each now 6 months old, they had no case anymore. 93 F. Supp. 3d 416 (E.D. Va. 2015), aff’d in part, vacated, in part, 814 F. 3d 321 ( 4th Circ. 2016).

This is an example of a structural feature of the law that could benefit from review. There are others. These are not, however, the sort of issues the reform debate is usually concerned with.

3. Campaign finance does tend to center on limits, or their absence, in the case of Super PACs—that is, until now, when the amount spent by these PACs, or overall, stirs little interest. As noted before, what counts as excessive spending is often a matter of purely political perspective: the usual critics now seem to think that, all things considered, a lot may not be all that much, at least this year, with the stakes seen to be unusually high. The Super PACs themselves have seemed a little less Super: As Mutch writes, “billionaire support did not determine candidate strength in 2015, and that was a continuing surprise.”( 93).

How we got to this point is a complicated story, and it will be helpful to the baffled to have Mutch at hand while trying to follow it.

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