Archive for the 'McCain-Feingold' Category

Are There Genuine Issue Ads or Just “Sheep’s Wool”?

December 2, 2016
posted by Bob Bauer

Progressives thinking about the experience with reform have to grapple with its implications for mobilization, for effective political speech and action. As previously noted here, one traditional reform objective – – regulating issue advertising – – bears reconsideration For years, a priority has been to expand the rules to cover certain issue advertising within election seasons. The authors of McCain Feingold settled on what they took to be an objective test--define the election season as a month to two months before an election, and then capture within reporting requirements ads that simply” refer” to a candidate and are directed to his or her electorate. The ads affected would surely be “sham” ads, intended to influence the election, and disclosure of the financing of these “electioneering communications” would be appropriate, as it is in the case of clear-cut campaign advertising.

But is there such a thing as a genuine issue ad--one that is designed to discuss candidates in relation to issues but without, within the four corners of the ad, expressly calling for the candidate’s election or defeat? Or to put it in doctrinal terms, may the government reporting rules reach ads that do not involve either express electoral advocacy or its “functional equivalent”? The Court in McConnell v. Federal Election Commission took it more or less for granted that genuine issue ads would not be subject to mandatory disclosure. 540 U.S. 93, 206 n.88 (2003) (“ [W]e assume that the interests that justify the regulation of campaign speech might not apply to the regulation of genuine issue ads").

In Citizens United, the Supreme Court devoted a line to the seemingly contrary conclusion, suggesting in the most general terms that "the public has an interest in knowing who was speaking about a candidate shortly before an election." Citizens United v. Federal Election Commission, 558 U.S. 310, 369 (2010). But its discussion on this point was short, and it also appeared in a case that involved a communication--a movie--that was plainly intended to influence voter choice. It was decidedly not a case about “genuine” issues speech.

The Independence Institute, a 501(c)(3) organization, has pressed on this issue with a challenge to the application of the reporting rules to an ad lacking either express advocacy or its functional equivalent--i.e. a "genuine issue ad.” The ad named two Senators, one running for election, in appealing for support of pending legislation on criminal justice reform. A three-judge district court last month rejected the claim that the ad was constitutionally protected. The Court relied on the language of Citizens United. It appeared satisfied that even in the case of a genuine issue ad, a reference to a candidate was sufficient to trigger the electioneering communication disclosure requirements. Independence Institute v. Federal Election Commission, No. 14-cv-1500, 2016 WL656396 (D.D.C. November 3, 2016).

The Cycle of Reform “Fixes”

July 11, 2016
posted by Bob Bauer

This is one view of the effects of modern political reform, and here is another, and their conclusions are, in a sense, similar: reforms have not worked as intended. But they don’t have in mind the same failures.

Robert Samuelson thinks the reforms have weakened the political system, undermining political parties and blocking other channels for constructive compromise and effective governance. Isaac Arnsdorf argues that, in the case of lobbying reform, the laws have worsened corrupt practice, not curbed it, and he is most exercised by legislators' ability to wield influence for private profit after leaving office.

The one commentator thinks we have government enfeebled by the unforeseen effects of reform; and the other sees reform to have left government more corrupt. Both analyses travel the familiar route of making a point that it invites the reader to take too far.

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.

Undesirable Alternatives

May 11, 2016
posted by Bob Bauer

The Louisiana Republican Party has enlisted Jim Bopp to mount a challenge to campaign finance restrictions on state political parties and so it is widely assumed that this is a Trojan Horse lawsuit with much wider significance for the survival of McCain-Feingold.  And of course if the three-judge court, then eventually the Supreme Court, decide the case a certain way, it could well help doom the 1970’s reforms--if not immediately, then eventually.  Rick Hasen, among others, has embraced the doomsday scenario, and the reform community has communicated to the three-judge court just this view of the stakes.

All of this may be true but this case and likely others to follow point to the costs of the bitter, stalemated discussion of campaign finance policy.  Louisiana and its lawyers have a reasonable case against the regulatory burdens on state parties: they stress that the dissatisfaction with aspects of these rules is bipartisan.  Thoughtful observers have concluded, as Brookings scholars recently did, that reforms are required.

But on this, as on other campaign finance issues, there is little likelihood of progress: no serious legislative engagement and, outside the Congress, a sharply divided political debate that mainly sorts out into hardline “reform” and “anti-reform” camps. The fight has largely moved to the courts, and from the reformers’ perspective, and with some uncertainty after Justice Scalia’s passing, this serves to put at risk the entire Buckley framework.  But if the outcome there is muddled or inconclusive, what will continue is the slow, steady rot of a regulatory regime characterized by ambiguity, complexity and evasion.  Neither of the alternatives is desirable.

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.