Archive for the 'Contribution limits' Category

Republishing Romney

December 14, 2015
posted by Bob Bauer

The Campaign Legal Center was pleased that the Federal Election Commission had fined the independent Romney Super PAC for republishing a Romney campaign video, but it was disappointed that the penalty, $50,000, was low.  Still, there was enforcement, as my colleague Marc Elias pointed out on Twitter.

It is a mixed triumph for the FEC.  The agency got its settlement and collected a fine but also agreed with the Romney Super PAC that the law being applied had been unsettled and that PAC counsel had adopted a reasonable legal position in the absence of a clear rule or established interpretation.

Maybe the agency was being circumspect, paying its respects to the Romney PAC legal position as needed to induce a negotiated settlement.  But the public record now contains an enforcement action in which the agency imposed a penalty for what it characterized as a reasonable legal position on an open question under the law.

The Politics of Party Campaign Finance

October 23, 2015
posted by Bob Bauer

In a thoughtful article, Michael Kang of Emory has taken on the question of whether de-regulated political parties, taking in larger sums of money, can truly act as a bulwark against polarization—or only as yet another agent of the wealthy and their policy preferences.  He doubts donors would expect from parties any less responsiveness or gratitude. If the committed class of large donors is ideologically polarized, it is hard for him to see how party officials could resist its demands and retain the freedom to move party politics toward the center, closer to the ground for compromise.

This is one aspect of the normative case against party de-regulation he would put up against views presented by Rick Pildes, among others. (He has other concerns: for example, that "even if de-regulation of party campaign finance assigns the right balance of power among party actors, it neglects distributional equality concerns that were once a main focus of campaign finance policymaking."  Kang, Michael S., The Brave New World of Party Campaign Finance Law (2015). Cornell Law Review, Vol. 101, 2016; Emory Legal Studies Research Paper No. 15-365, at 57. Available at SSRN:

On this question of the direction into which parties would be pushed by the larger donors, Professor Kang gives a fairly straightforward picture of the donor and her motivation, and of the relationship of donor to party official.  The donors on this account will give only on conditions; the party officials, to get the money, will meet them.  The well-to-do donors do not have multiple motives: their demands, at least as the party official would interpret them, are of the “all or nothing” kind.  Is this a fully satisfactory account?

The Question of Super PACs in the Post-Buckley World

August 3, 2015
posted by Bob Bauer

The court’s worst blunder, she said, was its 2010 decision in Citizens United "because of what has happened to elections in the United States and the huge amount of money it takes to run for office.”

This is what Justice Ginsburg has said, but is not clear without a bit of guesswork which she means.  But it seems to be about “what has happened to elections", including cost, and not so much how the conduct of elections translates into bad or corrupt government.  One cannot read too much into it: the comment is short, but her few words describe a problem with the electoral process.

Distortion of that process, or the interference with its ideal functioning, is a major worry for those observing money in politics, separate from any consequences for the integrity of government that the politicians, once elected, are responsible for running. This electoral corruption of elections is different from the quid pro quo corruption of government that animates the strictly constitutional and legal debate.

In Friday’s New York Times, Stuart Stevens refers to just the electoral impacts of campaign finance when discussing the effects of Super PACs in altering the character of Presidential primary competition.  A number of the now 17 candidates entering the Republican Presidential primary have jumped in with the confidence that, with a Super PAC at their side, they have the resources to hang in there for a spell. Doing well in the first primaries is no long an invariable condition of viability.  Stevens is not all that worried about it: he likes the free-for-all.  Others are less sure.

These understandings of “corruption” can be, and often are, conflated, but are very different.  The case against Super PACs as agents for electoral corruption is straightforward: a handful of individuals can float a candidacy lacking in more general public support and keep it artificially alive.  The costs increase for other candidates; debate stages are crowded with contenders who are not truly viable over the long-term; and the mechanism by which public preference is measured is skewed.

Perhaps for this reason, it goes unnoticed that arguments directly related to government corruption—and proposals for reform based on them—seem, by contrast, increasingly clouded and tenuous.

Questions of Criminal Enforcement

July 28, 2015
posted by Bob Bauer

In the wake of the Wisconsin case, and in the arguments more generally about “’coordination,” it has been suggested that not too much should be made of the dangers of criminal investigation in campaign finance cases.  Hard-charging investigative techniques employed in the service of creative theories of liability are staples of white-collar criminal enforcement.  Why, critics such as Rick Hasen ask, should campaign finance law enforcement be different?

The question of whether criminal campaign finance investigations are just like any other is worth careful consideration, detached from a lively, high-stakes conflict like Wisconsin’s.  The federal experience is instructive.

It is understandable that the D.C. Circuit's Wagner decision upholding the federal contractor ban would attract a good bit of attention.  The federal courts are suspected of harboring animus toward the campaign finance laws and here is a major decision going the other way and on fairly broad grounds.  So it has been described as having the potential to be highly significant.

The decision was notable for the clarity and thoroughness of its presentation.  The Court also deftly reinforces the available authority by use of case law stressing the particular dangers presented by political pressure on, or from, government employees.  A strength, perhaps also a surprise, was the unanimity of the opinion.

It was also a relief to the decision’s admirers that the Court left open the question of whether federal contractors barred from contributing could make independent expenditures, or contribute to a Super PAC.  So this fight is for another day. Hopes have been raised within the reform community that the Court's emphasis on the special threats posed by federal contractors’ direct giving might justify limits on their independent spending.

This is one impression the case leaves – that without dissent, and for this class of contributors, the Court was prepared to affirm unambiguously affirm the government’s regulatory authority.  But then, after a step back, Wagner also illustrates how much excitement in this day and age of declining expectations about the campaign finance reform laws can develop around a case with limited practical effect that exposes problematic features of the current regulatory regime and its defense.