Law and Opinion in the de Blasio Investigation

March 17, 2017
posted by Bob Bauer

The de Blasio campaign finance investigation ended with explanations from federal and state authorities of their decision not to pursue charges. The Manhattan District Attorney Cyrus Vance, Jr. chose to give the lengthier account: ten pages of conclusions of law and facts in a letter to the State Board of Elections, which had referred the matter for investigation. Yet again in recent legal history, the prosecutor declines to prosecute but does not stop there, adding his disapproval of the conduct he would not indict.   He also suggests how the law could be improved so that it more directly, clearly prohibited the actions he does not approve of. The letter is something less than a model for productive prosecutorial encounters with the political process.

The District Attorney is passing on a case that involves a coordinated campaign of candidates, party leaders and party organizations to deliver support to targeted State Senate races. The question was whether party county committees became conduits for contributions to candidates that were larger in amount than what the candidates could accept directly. Donors were solicited for contributions to the parties, and the parties promptly provided the money to the campaigns for immediate use in paying their consultants. The coordinated campaign drew up plans for this arrangement with the county committees and submitted them to legal counsel for review. Counsel then approved of what the prosecutors refer to as an “end run” around the candidate contribution limits. The lawyer put his advice in writing and stayed in close contact with the client, providing “consistent advice” from planning to execution. The DA found no evidence of “bad faith” in the way the advice was sought or delivered.

The State of the Political Reform Program, Post-Election

November 14, 2016
posted by Bob Bauer

With two elections within sixteen years won by the candidate who lost the popular vote, it is a natural turn that the Electoral College moves higher on the reform agenda. There remain other items for consideration: the state of the political parties, campaign finance, and voting rights. The question is: in what ways will the substance of reform, and its timing or tactics, be affected by the outcome of this election?

1. Attention to the Electoral College is now heightened at a time of mounting impatience with the other ways in which the electoral process deviates from the expectation that the most votes should decide. James Ceaser has correctly said that we've arrived at the point in our political culture that it is, if not unthinkable, difficult in the extreme to stand against the principle that the person with the most votes wins. So Republican leadership balked at any program to stop Trump at least in part because they struggled to explain how the nomination could somehow be denied to the candidate in a field of 17 who won by far the most contests and the most votes. The Democrats have run into similar problems with the role of super-delegates.

The case against the Electoral College is strengthened considerably by this strong trend in popular expectation. Whether we will see sustained momentum for reform is a different question.

2. Meanwhile, what about the parties? Ezra Klein has come to the view that parties may be weak but partisanship runs high, and that this complicated combination explains a good bit of what some see to have gone wrong with the nominating processes. Parties do not mediate voter choice: it is not accepted that they should step in against the candidates the voters favor and compel an alternative choice presented as superior in experience, governing credentials, or electability. So the voters decide, and once they have decided, the parties and their partisan fall into line. As Klein explains it, this is the worst of all worlds: weak parties, high partisanship.

The absence of strong parties on the traditional model has been keenly felt in this way, and perhaps in other less visible ones. For example, candidates now rely upon polling data to shape strategy and to adjust as necessary to changed political conditions. All of this is done at headquarters, shaped by sophisticated analytics. And the analytics are highly advanced. A modern campaign cannot operate without them. But genuinely strong parties are built on something more. They would have good intelligence "on the ground" delivered by seasoned party officials and operatives. The state and local party would speak authoritatively on local conditions. It pick up quickly on changes in those conditions not easily accessible through polling.

When the Law Can Seem a Bit Much, Mutch Explains

August 30, 2016
posted by Bob Bauer

In this pre-Labor Day period when blogging will be light, here are a few notes:

1. Robert Mutch, who has written extensively about the history of campaign finance, has now published a guide to law and rules, Campaign Finance: What Everyone Needs to Know, just published by Oxford University Press. He means “everyone.” It is a citizen’s manual, with accessible explanations of abstruse statutory regulatory, and case law material, a chronology of major developments, and a glossary of key terms. He also provides throughout comments on the campaign finance reform debate. Mutch has a point of view on reform issues--who doesn’t?--but it is not harmful to his project. It adds a little zest to the discussion and more interest, therefore, for the general reader.  That reader has long deserved a resource like this, and here it is, courtesy of Robert Mutch.

2. That same general reader might want to puzzle over some of features of the well-worn law that is Mutch’s subject. An interesting case now on appeal to the Supreme Court, which goes by the name of a plaintiff with an unambiguous politics--Stop Reckless Economic Instability Caused by Democrats--questions why it is that political committees in existence for at least six months, so-called “multicandidate” committees, may give upon passing out of their infancy more to candidates but less to political parties (provided they also meet other minimal conditions on the level of support received and given).  The multi-candidate committee satisfying this 6-month waiting period can give a candidate another $2300 per election, for a total per election limit of $5,000. But its contributions to national and state parties are substantially cut from $32,400 to $5,000 and from $10,000 to $5,000, respectively.

Reform and the “Chaos Syndrome”

June 21, 2016
posted by Bob Bauer

In an article just published in Atlantic, Jonathan Rauch argues that modern political reform has contributed to a disastrously weakened capacity for responsible, functional self-governance.The damage has been done to critically needed intermediary institutions, such as parties, whose effectiveness depend on allowances and practices now associated with old-style politics: less transparency in the conduct of government business, more resources for parties and their leadership, more of a role for party leaders and elites in screening candidates, and more flexibility for congressional leaders to utilize tools like "pork" to induce cohesion in the legislative ranks. The result of the change has been what he calls “chaos syndrome.”

Rauch does not claim that the reforms all without merit, or that we can or should leapfrog back to the end of the 19th or early 20th century. But, he says, by scaling back or adjusting certain of these reforms, something can be done to restore functionality to our politics—to contain the “chaos.”

Writing perceptively about this problem of reform’s “unintended consequences, ” Rauch recognizes that there are “other, larger trends” in the political culture responsible for this syndrome. For example, he cites the “politphobes” among voters who are convinced that there are clear remedies, beyond reasonable disagreement, to the nation’s ills, and that only the politicians and their political shenanigans and dark conspiracies have gotten in the way. He faults the reforms, for exacerbating this and other problems, just as he appreciates that revisions in the 1970’s reform model won’t somehow alone bring order out of the chaos.

It would be mistake, and maybe a trap, if Rauch’s analysis were taken to call only for re-evaluation of reforms already enacted. The argument taken primarily in that direction is sure to activate the same tired debates, feeding into the standard fear that politicians, "rolling back" reforms,  are taking care of themselves at everyone else’s expense. No less important is bringing Rauch’s analysis into a discussion of the proposal of new reforms.

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.