In the last two days, postings here have considered Rick Hasen’s complaint about WRTL but, as the disagreement persists about what the Court intended and how it will affect the regulation for the future, the Congress completed work on an ethics reform package with a fresh piece of campaign finance reform included.  Reformers can be cheered:  two new regulatory pieces have been added to the puzzle, one on “bundling” and the other on the use of corporate aircraft.

Bundling

      The bundling provision relies on disclosure to satisfy one aspect of the objection to fundraising so named.  Political parties, candidate committees and leadership PACs will have to disclose those registered lobbyists, their employers, or PACs controlled by either, that bundle two or more contributions exceeding in the aggregate $15,000 in a six-month period.  (Personal contributions from the bundler or bundler’s spouse don’t count toward the reporting threshold.)  A contribution is bundled if it is received by the bundler who forwards it to the candidate, or if it raised by the bundler and the committee receiving the money credits the fundraising through records, designations or other means of recognizing it. 

      The bill does not attempt to fully define all terms or answer all questions.  This is left to the FEC, for a rulemaking.  The bill becomes effective within three months of the final agency rule.

      Is this the beginning of new restrictions on bundling, rather than the satisfaction of the demand for a reasonable level of disclosure?  It is possible that this will do it:  the reports filed under the new requirement, together with the voluntary, occasionally more comprehensive disclosure by classes of candidates (specifically, Presidential candidates), may adequately meet the immediate, perceived need. 

       Or, equally likely, the “issue” having been defined—that influence might be purchased with fundraising as much as with the deployment of personal wealth—the reporting requirement passed yesterday may prove to be the first of a series of bundling-related measures.  Disclosure works this way.  See Robert F. Bauer, "Not Just a Private Matter: The Purposes of Disclosure in an Expanded Regulatory System," 6 Election L.J. 38 (2007).  It prepares the way for regulation on the more prominent issues, necessary but rarely sufficient.

Private Aircraft Transportation

      One other measure approved by the Congress changes the rules for the use of private (read:  corporate) aircraft.  The House had acted by rule earlier this year to bar the use of campaign, official or personal funds for air travel other than the commercial kind.  The new bill would impose this restriction on House candidates, preventing them from using their campaign funds, when House incumbents cannot, to pay for campaign-related travel on private (corporate) aircraft.  Senators and Senate candidates could still arrange for paid private air transportation, but the fare was increased, to a pro rata share of the usual and normal charter cost of an airplane of similar size and type, payable within a commercially reasonable time. 

      These limits apply to both the candidate’s own committee and to his or her Leadership PAC:  an exception is made for aircraft owned by the candidate or a member of the candidate’s immediate family.

Conclusion

      This has been a summer of deregulation in the Courts and reform in the Congress.  While Rick Hasen has predicted that with the decision in WRTL, the Court has previewed a new majority for extensive deregulation, he may truly worry too much.  There will always be reform, in mad rushes or in more modest increments, and the Court may harden against the more ambitious thrusts but it will not dare stand too much in the way.  It never has.

 
Bob Bauer