Archive for the 'Contribution limits' Category

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.

A Legal Note from the World of Conventions

July 26, 2016
posted by Bob Bauer

In 1984 there was a flap over the funding of delegates slates. The Mondale campaign, it was charged, had cheated on the campaign spending limits by putting the money into convention delegate selection. Delegate financing hasn’t been an issue since then, and it still really is not, except that it is worth noting a case recently and successfully brought to loosen the limits on delegate financing. The case, settled with the FEC, frees delegates to accept contributions from nonprofit corporations. It is a step in the right direction in making the laws more sensible, admittedly on an obscure point, but it is still better to have legal reform happen whenever possible.

The Pillar Law Institute noted that individuals can contribute without limits to delegates, to fund convention-related expenses, but corporations, including nonprofit corporations, cannot. The Institute proposed to help delegates without means to attend the Republican convention, to supply them with educational materials, and to offer them legal support pro bono if necessary to defend them against litigation threats (e.g. from Donald Trump). It sued for a declaratory judgment and injunctive relief.

To the extent that large contributions are given to secure a political quid pro quo from current and potential office holders, the integrity of our system of representative democracy is undermined. Although the scope of such pernicious practices can never be reliably ascertained, the deeply disturbing examples surfacing after the 1972 election demonstrate that the problem is not an illusory one. 

Buckley v. Valeo, 424 U.S 1, 27.  

This was the magnitude of the conclusion that the Supreme Court drew about the prevalence or appearance of corruption when it upheld the contribution limitations of the Federal Election Campaign Act. The corruption problem was “not… illusory” but its scope could ‘never’ be pinned down.  The Court then cited to the decision of the court below that had offered a few example of pernicious behavior with campaign funds in the 1972 presidential election. That was enough.

In the years following, enough has not proven to be as good as a feast.  And in search of the feast, anyone with a point to make about the campaign finance laws has been pursuing conclusive data to support it.  Corruption, or the absence of corruption, or the different definitions and measures of corruption, have all occasioned argument about the evidence, as has the related but different project of proving the “appearance” of corruption.  Argument about the evidence has yet to be settled and there's every reason to believe that they never will be.

The related but still distinguishable argument about political inequality has meant the same search for clinching proof that policy follows money and makes for a “rigged” system.  This week, the Center for Competitive Politics took after a widely reported paper about the correlation between the aspirations of the wealthy and the manufacture of public policy.  Noting that Rick Hasen and Larry Lessig had made use of the paper in arguing for a political equality theory of regulation, the CCP cited to critics of the scholarship and its conclusions.  In this critical view, which CCP evidently favors, there is substantial agreement across income groups about policy.  So the study that purportedly shows that we have a democracy of the rich cannot survive close scrutiny. CCP suggests that this should bring sharply into question the “lofty solutions” of reformers.

Louisiana is arguing with the help of the indefatigable Jim Bopp that McCain-Feingold cannot limit “federal election activities”, such as GOTV and voter registration, that state and local parties conduct independently, without coordinating with their candidates. Democracy 21, the Campaign Legal Center and Public Citizen reply in a brief filed as amici that this claim is clearly foreclosed by existing precedent: the soft money limits on state parties under McCain-Feingold are contribution limits, not spending limits, and there is no protection gained from claiming to conduct independently the activities paid with these contributions.

The litigating team representing these leading reform organizations is top-notch, and so it is not a surprise in reading their brief that they do a fine job with the materials at hand. But one also sees that there is a problem—not with the advocacy, but with the state of the law.

The Director of New America’s political reform program, Mark Schmitt, continues to ask for a fresh and realistic debate about campaign finance, and this is notable because his reform credentials cannot be questioned and because he states his case well and thoughtfully.  In an op-ed appearing today in The New York Times, he argues, correctly, that the reversal of Citizens United would not be as consequential as some assume. The questions about the role of money in politics would not be settled: in the cause of limiting the role of money and opening up the political process to the widest range of speech (and candidacies), the demise of CU would be a “minor step.”  He argues for the more central importance of other means of accomplishing core reform goals, such as public financing on the model of enactments in New York City and Seattle.

Schmitt does not discount effects, both direct and indirect, of CU, but he points out that it is just one of a long line of decisions limiting Congressional authority to regulate campaign finance, all the way back to Buckley.  In one way or another, the First Amendment unavoidably narrows the path reform can travel.

But this does not mean that that path is so narrow that it is for all practical purposes impassable. One of the lines of attack on CU is that it puts in doubt the constitutional support for any effective campaign finance regulation.  This critique holds that contributions limits—ordinary, regular contribution limits—may be next on the chopping block.  The McCutcheon case is then cited as evidence—at least as a signal—that the end may be near.

Of course, the more dramatic reading of CU, a turn away from Buckley, could turn out be to the case.  A Supreme Court willing to go as far as it did—and farther than it needed to –could well look for other opportunities to bring down the Buckley framework.

On this question, it has been useful to consider Judge Merrick Garland’s record on campaign finance.  He wrote for an en banc Court of Appeals in Wagner v, Federal Election Commission, 793 F.3d 1 (2015), upholding a complete ban on contributions to candidates by individual federal contractors. It is a thorough, scholarly piece of work, and the Court was united behind it.