Two web commentaries in the last day, on different and important topics in election law, stake out or suggest certain positions and are vulnerable, as discussed below, to strong objections.

     One considers the Michigan lawsuit over the use of foreclosure lists to challenge voters:  Rick Hasen, pondering the strategy of the suit, notes as one possibility that "vote suppression" is strong public relations for Democrats in the same way as "fraud" flies from the lips of Republicans.  The other by Reid Cox, of the Center for Competitive Politics, remarks on recent comments by a senior DOJ official about the Department's disinclination to prosecute 527 or other "independent group" activity conducted in violation of the law. 

     1.  On the Michigan suit (the undersigned represents one of the plaintiffs, Obama for America):  as Rick has regularly pointed out in his own commentaries and publications over the years, the case against fraud-particularly-in its most popular and recent version, impersonation fraud—has rested on allegation and anecdote, virtually never on evidence.  The decisions upholding the photo ID requirements concede the point.  Justice Stevens in the Crawford opinion, pressed to say something for the state interest, traveled back in time to Boss Tweed, in one of the more embarrassing footnotes in modern Court history.

     This cannot be said of Republican vote suppression—termed by its sponsors. "ballot integrity"—and it is has been well-established and subject to successful legal challenge for decades.  It has been an institutional Republican Party tactic, chronicled in detail by Chandler Davidson and his co-authors.  Chandler Davidson, et al., Republican ballot Security Programs:  Vote Protection or Minority Vote Suppression or Both? (2004).  The Brennan Center has compiled a handy overview. 

     There is no equivalency, between the suppression and the fraud claims, to be argued in the GOP's favor.  Even in the wake of the admission by the Macomb party chair, retracted under political and press pressure, other Republican operatives have endorsed "caging" strategies and there is no reason, on the public and historical record, to doubt their commitment to them. 

     Rick, in fairness, does not delve into the question of equivalency, and his views on the problems with the "fraud" claim have been laid out on a number of occasions, in multiple writings.  But the comments he makes could be construed to put on the same plane one party's challenge to a long, fully substantiated practice and program of vote suppression, and the other's drum-beating about "fraud."  Any such comparison is simply unwarranted.

     2.  DOJ's chief of the Election Crimes Branch doubts that individual contributors funding illegal 527 or other independent activity would ever be prosecuted.  Reid Cox is pleased, but not too much.  There is still the chance, he fears, that the Department would bring actions against the organization. 

     Why should the individual contributors—especially the ones who put up all or most of the money—have the benefit of a pass on any criminal exposure for knowing and willful violations of the law?  The FEC has promulgated a rule that provides that donations, made in response to a communication that indicates the "funds received will be used to support or oppose the election of a clearly identified Federal candidate," will be treated as contributions.  11 C.F.R. § 100.57.  Contributions are subject to a limit.  Wealthy individuals, having typically enough sophistication and certainly the resources to consult lawyers, are able to assess the risk; and if it is their decision to disregard it and spend lavishly in excess of the limit, they should be accountable for knowing and willful, for criminal, misconduct. 

     Yet a senior Department official has indicated, in remarks made at a conference and covered in the press, that he would not approve for prosecution "a case against a hypothetical contributor to a Section 527 group who gave a seven-figure donation based on a request to help or harm the prospects of a particular presidential candidate."

     Cox and his CCP allies are really arguing that the law makes no sense to them, and it is on that ground that they believe that criminal prosecution is ill-advised.  On the question of how the campaign finance laws are currently constructed, there is plenty to say, much of it critical, but this question is different from the one presented about whether the Department should enforce the clear rules as they now stand.  It is remarkable that it should take the position that it won't. 

Bob Bauer