Archive for the 'political reform' Category

To defend the post-McCain-Feingold version of campaign finance reform, proponents have taken special pains to say that it did not really hurt the political parties. They bounced back, engineered new ways to raise money, became perhaps even stronger. The soft-money the 2002 law took away from them has been replaced by other sources of funding. Online contributions have helped, and so has special new party fundraising authority enacted by Congress in the “Cromnibus.”

But even more important, according to this line of argument, is understanding what a political party is. It is not correct, on this view, to point to the formal institutional party organizations, but parties should be viewed instead as “networks” of allied entities. That would include, for example, interest groups sympathetic to Democrats or Republicans, Super PACs aligned with either major party (sometimes referred to as “shadow parties”), and even Fox or MSNBC.

Now the Campaign Finance Institute has put out new research and commentary in support of this picture of the parties. Having assembled data to show that Super PACs aligned with party interests spent large sums of money in 2016, the CFI declares that there is no cause to “bemoan” the weakness of parties. Parties have “rebounded”: they “have found a way to fight back” after the reforms and Citizens United.

And how did this happen? On this point, CFI words its position delicately. The parties’ recovery can be attributed in part to the “law’s permeability.” The unrestricted funding and spending of Super PACs "looks much like the soft-money the formal parties accepted before the Bipartisan Campaign Reform Act of 2002 (BCRA).”   There are advantages and disadvantages to this development. On the plus side, the "shadow party" PACs don’t have to pretend to be “issue advertising” and can spend on direct advocacy of their candidates. But, more negatively, they have to set up as “independent” of candidates or the institutional parties and cannot coordinate their spending with them.

The FEC will be defending the “structure” of the contribution limits this week in the US Court of Appeals for the District of Columbia. The case, Holmes v. Federal Election Commission, tests the constitutionality of the "per election" limits as applied to a donor’s choice to participate only in the one--the general--election. If a donor skips a primary, and wishes only to contribute in the general, she now cannot give the full amount allowed for the election cycle cycle, $5400, but only half of that: $2700, the "per election" limit for the general.  The Holmes plaintiffs’ point is that this bifurcation of the limits serves no legitimate anti-corruption purpose. Donors do not potentially corrupt candidates in the primary, or the general, or a run-off: the corruption, if it occurs, is the result of the amounts given through the date that the candidate is elected to office, after which the new officeholder is in a position to return the favor. And the limit Congress settled on to serve this anticorruption interest is the combined allowance for the cycle, $5400, a point that the Supreme Court stressed in McCutcheon.

The problem presented by the bifurcation of the limits is worsened by the messiness of its application. Incumbents and other largely unopposed candidates do well under this system, collecting money for primaries they don’t have to compete in and transferring the money to their general election accounts. Both the candidates in this position and their donors are aware that the money being given to the “primary” is really for the “general.” And a candidate can collect a contribution designated for the general election before the primary election is decided, provided that the candidate escrows the money and does not spend it until after the date of the primary. In this case, the candidate has, in fact, accepted a full cycle contribution of $5400 prior to the general election. It may be subject to a restriction on when it is spent, but the donor looking to make an impression, with a full cycle’s worth of contributions before the primary, will have done so.  Or, knowing that a primary candidate is closing in on victory, a donor can give the full primary election amount the day before the primary, and the full general election amount the day after, with confidence that he or she has given $5400 for the general election.

And add to all this that by FEC rule, an opposed candidate who, by operation of state law is not even on the ballot may still raise a "primary" or "general" election contribution in the full amount. The regulation reads:

A primary or general election which is not held because a candidate is unopposed or received a majority of votes in a previous election is a separate election for the purposes of the limitations on contributions of this section. The date on which the election would have been held shall be considered to be the date of the election.

11 C.F.R. 110.1(j)(3).

The New York Times has carried two pieces in the last days on the Internet politics, each making a case for its contribution to degraded democracy. Michael Birnbaum writes about the influence of rightist websites in Europe as both the Netherlands and France head into national elections. Tom Edsall adds a thoughtful, more academic note, interviewing scholars and citing to various studies that generally reinforce a dark message about “democracy, disrupted.”   The Edsall analysis also takes on the question of whether this disruption plays favorites, helping more the left or the right, and he concludes as follows:

There is good reason to think that the disruptive forces at work in the United States — as they expand the universe of the politically engaged and open the debate to millions who previously paid little or no attention — may do more to damage the left than strengthen it. In other words, just as the use of negative campaign ads and campaign finance loopholes to channel suspect contributions eventually became routine, so too will be the use of social media to confuse and mislead the electorate.
This is a significant coupling of concerns about the uses of social media with two of the prominent planks in the campaign finance reform program. Edsall may mean that each disserves democracy in its own way, or that there is an interaction among these developments that is generally helpful to conservative, and inimical to progressive, politics.

What is also unclear is why these means are closely associated with a specified political end. For example, what is it about a “negative campaign ad” that is markedly more useful to the right-wing sponsor? There are times when the anger can be turned in the opposite direction, as Republican Members of Congress recently found in their town hall meetings; and this anger is finding expression through social media, on TV, and surely in the election to come, in negative campaign advertising. Those same angry progressive voices will be amplified only if the required funding is available. “Loopholes”--as some understand Super PACs or (c)(4) issue advocacy to be--will flourish on the left and right alike.

Political Reform in An Era of “Existential Politics”

February 28, 2017
posted by Bob Bauer

Rick Pildes asks whether in this time of "existential politics," when contestants for political power perceive the very "identity of the country… to be at stake," we might expect the steady degradation and eventual collapse of institutional norms. He is moved to this reflection by Judge Laurence Silberman's recent column on Jim Comey’s and Justice Ginsburg’s interventions in the 2016 political campaign. Judge Silberman charges each with disregard of norms, with having “bent with the political winds” in a storm. Silberman does not explicitly develop the theme of an existential politics, but Pildes rightly sees something like it playing in the background.

One other consequence of this brand of politics is the collapse of any agreement about the rules of political competition. For the existential warrior, these rules either cost too much--they just get in the way--or they require tighter alignment with self-interest. If, as Michael Gerson mockingly describes the mind-set, the nation is now in the midst of a “fourth turning, or maybe the fifth progression, or the third cataclysm,” or if the government threatens a turn toward fascism, there will be little patience in this fight for ground-rules that complicate the path to victory or successful resistance. As noted here, the progressive opposition may include campaign finance limits among its reform commitments, but how far can this go, if resources are thought essential to the project of stopping Trump?

The rejection of rules tends to be rationalized, and rationalization has been spreading. Last to go has been the acceptance for the need for disclosure; but it may be on the way out, as Republican and conservative critics argue that transparency requirements are devices that the administrative state has established for the surveillance of the political opposition. In this attack on disclosure, the President’s refusal to release his returns, while a rejection of norms and not of law, has put a fine point on the precarious position of transparency in the existential politics of the day.

Speech Ethics

February 13, 2017
posted by Bob Bauer

The Senate’s invocation of Rule 19 against Senator Warren could not have been more curiously timed. Supposedly concerned to uphold senatorial debate standards, to keep out the nasty stuff, Senate Republicans disqualified Warren from further debate on the Sessions nomination because she read from Coretta Scott King’s 1986 statement opposing Mr. Sessions’ elevation to the bench. Meanwhile, the President routinely tweets out abuse of political adversaries, in the courts or (as in the case of John McCain) in the Congress.

Of course, the President is not bound by the Congressional rules and traditions. But that is the interesting question: if there are standards to be applied to democratic debate, especially to the remarks of senior elected officials, why should those standards be limited to legislative speech? And, if extended to executive branch speech, how?

It might be thought that standards of this kind are significant only in the management of a deliberative body: their function could simply be to avert fist fights on “the floor,” where debate takes place, or, short of violence, to keep order. There is more to them than just this functional administrative purpose. When the Senate censured Joe McCarthy in 1954, the politics were complex, but the Resolution noted his verbal abuse of adversaries. It cited his accusations that the Senate was convening a “lynch-party” against him, that a senior Member directing the Select Committee censure inquiry was “cowardly,” and that the Committee was acting as “attorneys-in-fact” for the Communist Party. The Senate applied the severe penalty of censure in part because McCarthy’s vicious speech violated “senatorial ethics” and "tended to bring the Senate into dishonor and disrepute."

This goal of protecting against institutional disrepute has been reflected for years in the ethics codes of both the House and the Senate.  See, e.g. S. Res. 338, 88th Cong., 2d. Sess. (1964]; House Rule XXIII Cl. 1 (“A Member, Delegate, Resident Commissioner, officer, or employee of the House shall behave at all times in a manner that shall reflect creditably on the House.”) Members engaged in abusive and irresponsible speech are not only disregarding some housekeeping regulation, like a prohibition against bringing their dinners into the chambers: They are presumptively acting in violation of their personal ethical obligations. There is no reason why reckless, vituperative speech by executive branch officials would not bring dishonor and discredit to that branch of the Government.