Archive for the 'Uncategorized' Category

Single-Candidate Super PACs and the Transparency Option

January 8, 2016
posted by Bob Bauer

The Super PAC that sits most poorly with critics is the one devoted to a single candidate.  It comes across as a flaunting of the form: often established by a candidate’s friends or associates, created in just the election cycle in which the candidate runs, it just seems to them like a sham.  There been proposals to limit or cripple single candidate PACs, met in turn by objections that the constitutional law does not allow for it.  This objection has force because reform proposals focus solely on the question of spending limits, and it is on this point precisely that the constitutional barriers go up.  If the committee is not “coordinating” with the candidate on a specific expenditure, it retains it's right to spend without limit for his benefit.

But there is another issue presented by the single-candidate Super PAC, allowing more room for a regulatory response: transparency.  As it happens, the problem is created in part by the law.  Unless a Super PAC is committed to the defeat of a particular candidate, in which case it can use the candidate’s name in “projects” or communications, it cannot have the candidate's name built into its own. 11 C.F.R. 102.14(a), (b)(3).  The support that it provides the candidate is presented under an anodyne name, like Committee for An America Back on Track.  The press may well say that it is candidate X’s Super PAC, and candidate X may well try to sneak the independent committee’s fundraising into boasts about his financial position. On the public record, however, the candidate has no connection to the committee: he has “not authorized” it-- for purposes of contribution or spending limits.

Because the single-candidate Super PAC is new to the scene, it stands out as a type of committee that falls through various disclosure cracks.  For example, “draft committees” established to encourage an individual to run to have the right to use her name: there's no mystery about whom they're supporting. 11 C.F.R.102.14(b)(2).  The individual being implored to run may be asked to "disavow" the draft committee, so its spending is not treated as her own and does not trigger any related requirements that she register a campaign committee. 11 C.F.R. 100.3(a)(3).  But the draft committee can proceed clearly and by name to urge a candidacy.

So it is only an independent committee supporting a particular candidate that is barred from using the candidate’s name. In this case, there is no public link between the committee and the candidate.

One conceivable approach would establish that link without running into constitutional complications.  A Super PAC organizing or operating to support only one candidate could be deemed a “supporting organization”, or something like that, defined as an independent committee organized and operating for the primary purpose of supporting candidate X.  A rule might provide that X be notified of an independent committee meeting that test. As in the case of draft committees, the candidate could "disavow" the designation, disputing that the committee truly supports him.

Category: Uncategorized

Super PAC: The Law and The Politics

January 5, 2016
posted by Bob Bauer

The ongoing assessment of Super PACs covers extensive ground, ranging across a number of concerns.  Judgments reached as few months ago are being revised today: for example, it is no longer a sure thing that the candidates supported by the best funded Super PACs have a competitive edge just on the dollars alone.  The only certainty is uncertainty about the role and effect, also the future, of these PACs. Are they a problem for the electoral, or for the governmental, process, or for both, and to what extent can these effects be measured, quantified, pinned down?

The basic bill of particulars against the Super PACs falls into these categories:

  • The distortion of the electoral process, allowing candidates who "have them" to dominate those who do not.  As noted, there is a diminishing confidence about this.
  • The distortion of the governmental process, introducing, through unlimited expenditures closely tied to candidates, an elevated risk of corruption
  • The widening and worsening the problem of political inequality, both as it is and in the electorate's perception, with consequences for public policy.
  • The profusion of nasty or negative speech, sparing the candidate requirement of doing the same and accepting responsibility for it
  • Not all super PAC critics will cite all of these concerns and in some cases it's not clear which of them are included within the overall complaint.  At this stage of revised judgment, it is thought that perhaps Super PACs will make their marks later in the electoral cycle when voters are more engaged and the heavy spending will make more of a difference-- especially in negative advertising.  The  Maggie Haberman article yesterday in The New York Times suggests that we may be returning to this earlier argument about Super PACs: they can't replace campaigns but they can amplify, negatively, their claims and themes.

    But PACs, regular PACs, can do the same, as can tax-exempt “(c)” organizations and those individuals who spend on their own like the billionaire writing his objections to Donald Trump in the sky.  No one can say that Super PACs are pioneers in negative campaign speech, and the difference they make to the volume and effect of negative spending—the difference between this world and a hypothetical one without them-- will not be easily measured.

    There still remain two distinctive claims that can be made about super PACs and the significance of their emergence, one about the law and the other about politics.

    Category: Uncategorized

    Political Self-Interest and the Question of Corruption

    December 31, 2015
    posted by Bob Bauer

    Critics of the McDonnell prosecution have argued that elected officials engage in “routine” political behaviors that should not be confused with the “official acts."   Politicians are kind to their campaign contributors and supporters, helping them where they can; they exercise “influence” for their benefit, within acceptable limits, solely to recognize and maintain these politically valuable relationships.  But this influence is not an exercise of government power and it is not the “quid” that makes for quid pro quo corruption.

    As presented, for example, in a well-crafted brief by former federal officials, the argument includes the insistence that this routine behavior is also broadly “beneficial”, in the sense that it is “essential to the day-today functioning of any representative government.”  Failure to allow for this activity would “cast a shadow of illegality over legitimate, pro-democratic activities,” such as hosting special events or providing privileged access for contributors.

    This is skillfully argued, but it is a point sure to run into resistance because it does not squarely address the element of political self-interest.  The politician romances prospective donors, and rewards the ones who come through with the money, in order to win and keep an office.  Some of these moves may well have a “pro-democratic” function or value, constituting constructive “opportunities to interact with the public.” But at the bottom of it all is mostly raw political give-and-take, or wheeling and dealing, which is what politicians do—and what they have to do, if they are to be successful politicians.

    There are advantages to confronting this head-on, without squeamishness.  One advantage is acknowledging what is going on, and not seeming to hide from it.  It is widely appreciated that politicians pursue self-interest in this fashion, which is one of the reasons why there is skepticism about its value to anyone else and support for legal controls.  Why, some ask, should a politician “get away with it,” using even mere “influence” for his personal—that is to say, political, benefit?  They doubt that closed-door hobnobbing with wealthy contributions are “interactions with the public” valuable to those who can’t pay their way into the room.

    But by facing up to this self-interest, the role of the law, in its intersection with ordinary, inevitable self-interested politics, may become clearer.

    Category: Uncategorized


    September 14, 2015
    posted by Bob Bauer

    Watergate is associated with abuses but also with reforms-- measures, the “Watergate-era reforms,” intended to go some distance toward solving the basic problems.  For scholars, law professors and the community of practitioners engaged with these reform enactments, the new biographies of Nixon now being published are irresistible. Evan Thomas, Being Nixon: A Man Divided (2015); Tim Weiner, One Man Against the World (2015).  To borrow a sneering comment by Nixon, it is easy to “wallow in Watergate.”

    One question that then comes up is: what in these narratives is the nature of the elemental “corruption” that led to Nixon’s downfall?  There's mention of campaign money, in the discussion of secretive fundraising and the "hush money" that Nixon and his staff paid to the Watergate burglars in return for their silence.  But private money--brought from the outside to corrupt the government from within--is not the key, or a key, to the story.

    Doubtless contributors to the 1972 reelection effort came under immense pressure to give, and from earlier works, where the attention to this issue is more systematic, it is clear that the people raising the money were more than willing to consider favors for those who agreed to supply it.  This was a problem that cut across parties and implicated politicians other than Nixon: “Candidates of both parties have eagerly dipped their fists into these corporate cash drawers—and presumably repaid the kindness in government favors.” J. Anthony Lukas, Nightmare: The Underside of the Nixon Years (1988).  Reform was in the air, and indeed the first such measure, the Federal Election Campaign Act of 1971, came before the bungled burglary at the Watergate.

    Moreover, much of the Nixon re-election campaign activity violated the law in place in 1974.   See, e.g. Victoria A. Farrar-Myers, “The Ripple Effect of Scandal and Reform,” in Watergate Remembered, ed. Michael A. Genovese and Iwan W. Morgan (2012), 129.  The issue was disregard of the law: the House Articles of Impeachment included the charge that the President had failed to execute the laws--the laws then on the books--that controlled the “campaign financing practices of the Committee to Re-Elect the President.”

    The core, defining Watergate abuses involve the power of the state directed lawlessly outward, by those in office, to win policy battles, or rig elections, or settle scores with political enemies.  Government officials were not bullied; they seem to have done the bullying.  To Nixon's way of thinking, he could put to use the his powers of the state to a good end, in the public interest: wear down his political opposition and enact domestic program, and more than anything else, clear the way for the "peace with honor" he imagined he was pursuing in Vietnam.  He was sure that other Presidents had done this sort of thing before him. It was rough stuff, “nut-cutting”, the will to win and persevere against enemies committed to his destruction.

    Category: Uncategorized

    The Lessig-Mann Dust-Up

    August 31, 2015
    posted by Bob Bauer

    Larry Lessig is not the first single-issue candidate in American presidential history, but from Tom Mann’s perspective, he picked the wrong issue.  Mann says that to isolate money-in-politics, to treat it as the key to solving all other problems, is to “dumb down” politics.  He takes this to be a disservice to voters, a deception, and a diversion from the discussion of other issues that have to be tackled and the successful resolution of which will not decided by campaign funding.

    It is a harsh attack, and a surprising one from Mann, a stalwart supporter of campaign finance reform.  Lessig has responded by suggesting that Mann is in no position to accuse him of gross oversimplification: he notes that Mann has singled out the Republican Party as the culprit in the dysfunctional polarization of national politics, and this, Lessig contends, is an even “simpler story” than campaign finance about what ails the country.