Archive for the 'Outside Groups' Category

The Transparency-Privacy Trade-Off (or Bargain)

September 13, 2016
posted by Bob Bauer

The Brennan Center Report on the state of disclosure, “Secret Spending in the States,” usefully examines transparency policy issues presented by high-impact spending in low-information contests at the state and local level. It argues that dark money is not the only problem and focuses on the additional questions raised by "gray money" – –funding disclosed by reporting entities but received from organizations giving no indication of the interest or funding behind them. The Report then selects examples from various states of dark money and gray money controversies or issues. The Center sets out a program of reform and points to some progress made in the states.

The current divide over these reporting issues is so sharp that it is unlikely that the Center will immediately win over the usual skeptics. These skeptics’ complaint is that terms like “dark money” or “gray money” are highly charged but hopelessly vague, and that they are being used to justify proposed reforms that would impede the exercise of free speech rights. They are loathe to empower the government to do too much, and behind this is the conviction that government in the control of particular political interests will use disclosure to hound adversaries or subject them to public harassment.

But the skeptics might be surprised that the Brennan Center Report does not minimize the burdens and political risks of disclosure regimes. It argues for reasonable monetary thresholds, to keep the smaller contributions out of the public reports; for reasonable exemptions for especially vulnerable participants; and for "other reasonable accommodations" to allow donors to support organizations for charitable or social welfare purposes without falling within disclosure requirements that apply to the financing of political activities. In addition, the Center quite sensibly would have "[any] penalty for failure to disclose… fit the severity of the violation."

Disclosure Wars: Issues of Policies and Purposes

April 25, 2016
posted by Bob Bauer

Americans for Prosperity has won a decision blocking California’s demand for the disclosure of its donors.  The court didn’t agree with the State that it really needed the information to meet its regulatory responsibilities, and it was satisfied that AFP donors had reason to fear that disclosure would subject them to reprisal and harassment.  The State’s commitment to keep the information confidential did not survive the showing that it had not over time performed very well on that score.

There are concerns and conflicts running throughout this controversy, and others like it, that the court did not expressly acknowledge—but that are now common in cases of this kind.

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 Brookings Report on the State Parties

March 14, 2016
posted by Bob Bauer

A Brookings Institution study of state parties, authored by Ray La Raja and Jonathan Rauch, is the latest of the sober commentaries on contemporary campaign finance.  La Raja and Rauch conclude that state parties have lost significant ground to outside groups and are impeded in large part by federal regulation, mostly by McCain-Feingold, in performing critical functions. They would like to see for these state parties increased or eliminated contribution limits, deregulation to enhance their ability to coordinate with candidates and to conduct ticket-wide activities, and perhaps even public financing measures in the form of tax deductible contributions.  The strengthening of state parties, they are convinced, can promote more moderate politics; it can offset to some extent the polarizing forces unleashed by “outside groups.”

It is a thoughtful report and a contribution to the growing consensus that campaign finance laws today are unworkable and in desperate need of reform.  The question is: are state parties, for the reasons given, an appropriately special focus of reform.

As the authors note, there are other reasons for the struggles of state parties and the rise of the outside groups.  Laws and rules may add to the problem but are not its exclusive cause. Much of what La Raja and Rauch say about state parties would apply to the parties as a whole, at the national as well as the state and local level, and there are other actors within the regulated system also clamoring with justification for relief from outdated, burdensome, and pointless regulatory limits.

The case for singling out the state parties rests on La Raja and Rauch’s belief that these organizations are “important nodes of the political equivalent of civil society,” capable of creating “social capital by building connections, trust, and cooperation across diverse individuals and groups.”

This is a strong claim.

“Not Authorized”

November 29, 2015
posted by Bob Bauer

Right now the basic complaint about Super PACs is that they can enlist the and endorsement support of their favored candidates, as in fundraising, and still claim they are “independent” and spend without limit.  But the Supreme Court—not the FEC, not wily campaign finance lawyers—is the reason why this is possible.  In Buckley, the Court tied “independence” to the coordination of specific expenditures with candidates. Without this coordination, the Buckley Court determined, the candidate runs the risk that the expenditure could be unhelpful or counterproductive and is not fairly charged with a “contribution” subject to limits.

No candidate request, control or involvement means, therefore, no spending limits.  The independent committee's public advertising then must contain a specific statement that the candidate did not "authorize" the communication. 11 C.F.R. §110.11(b)(3). This may be true, but the voter checking the committee’s formal registration with the FEC will find that the committee declares itself, and not just a specific expenditure, to be unauthorized.

In a technical sense, this is true: the committee is “unauthorized” because it is an independent committee whose expenditures are made without the candidate’s direction or involvement.  But the absence of control over or involvement in particular independent committee expenditures does not mean the absence of any contact with the committee.  The candidates can applaud an independent committee’s formation and operation for their benefit, and they may appear at the committee's events as guests or featured speakers and assist with its fundraising.

Voters may well be perplexed.