It has worked out this way:  Congress acted on bundling, in the new reform law, just as bundling as a fundraising practice became an issue of hot interest in the Presidential campaign.  Now the question will be presented, more quickly than usual:  will disclosure prove enough to settle the issues raised about bundling or will the problem as it  is now defined be attacked more directly?  See also Brody Mullins and Ianthe Jeanne Dugan, "Donors Stir ‘Bundling’ Questions," Wall Street Journal (Sept. 20, 2007) at A3.

      The bundling disclosure provision provides for semi-annual reporting of the identify of bundlers, but only bundlers who are registered lobbyists must be disclosed.  The threshold for disclosure is low:  $15,000, not counting their own contributions, so that a bundler wishing to avoid disclosure must stop his or efforts at $15,000.  But this $15,000 in bundling activity would be a modest sum:  it is not much greater than the largest sum a donor may provide directly, from his or her personal fund, to a candidate who, pressed by a wealthy opponent, is entitled to the higher limits afforded by the Millionaire’s Amendment.  One of the questions left up in the air is whether monies raised at an event, with the lobbyist acting as host or co-host, would be considered "bundled."  There is some legislative history on this point, but it remains for the FEC to say whether it is conclusive, or how it should be read.

     How do these requirements stack up against the worries now mounting about bundling activities?  Most obviously, the application of these disclosure requirements to only lobbyists will be a target of criticism.  Many of the bundlers in the news are not lobbyists; their motivations seem various and uncertain, and the influence they chase appears in some case to be personal and generalized, not so much pursued in aid of specific lobbying objectives or as part of a lobbying program.  It might be that these bundlers would welcome the imposition of a disclosure requirement:  it is recognition they seek, and they would regard themselves as unworthy of the respect they aim for if they raised below the disclosure threshold. 

     But if the disclosure requirements were expanded, would they work better to limit the abuses now being reported?  One other change would be needed to better match the requirement to the goal:  rather than have the campaign disclose only the aggregate amount of contributions raised by the bundler, which is how the new law works, the campaign might be required to report the names of each individual from whom the bundler raised money.  This would simplify the business of spotting the funny contribution:  the low-wage earner giving the maximum, or some other clue to possibly questionable fundraising.  Bundlers raising the money would be put on notice of the certain scrutiny, and civil and criminal law enforcement authorities would have improved resources at their disposal.

     But here is a where a disclosure requirement inevitably shades in a law enforcement function that is, in theory, more effective when discharged directly.  If the purpose of the expanded disclosure is to facilitate the enforcement of the contribution limits—if it is not solely to improve public access to information about a candidate’s sources of financial support—then going about this task with a disclosure requirement may have only the shortest term appeal or justification.  Once a record develops that bundling presents an elevated risk of campaign finance violations, there emerges with some force the argument that it should be limited, just as contributions are limited.  A contribution to a candidate is not inherently corruptive—but because it can corrupt, in fact or in appearance, it is subject to a limit, arbitrarily selected. This rationale is easily transferable to bundling, with this additional dimension:  a reform critic can say both that bundling buys too much influence and that it presents this serious, additional risk of campaign finance violations. 
 
     This is very possibly the regulatory future of the controversy over bundling.  Disclosure may be given a chance to work, but its limitations will be continually stressed, and a large constituency is available for the argument that it can never work well enough. 

     At the conclusion of this argument, however, is another question, which is:  once candidates (and parties), are further limited in their fundraising, because bundling arrangements are brought under tight controls, where is the money to come from?  The regulatory system is closing in on campaigns and the various devices, the Internet more or less excepted, they use to raise the increased sums needed to operate.  This creates more space for consideration of the option of true public financing, which may have been for some reformers the objective all along.

 
Bob Bauer