Partisanship and Campaign Finance “Reform”

One of the things that we here at the Center for Competitive Politics believe is that campaign finance regulations are all too often simply tools by which political parties, candidates, and elected officials try to gain advantages for themselves while imposing burdens on their opponents. A new poll by Gallup would seem to support this quite clearly.

I don’t think I’ll be breaking new ground or unfairly labeling Republicans and Democrats if I suggest that, historically, Democrats and the left have generally supported more stringent limits on campaign finance while Republicans and the right have opposed such limits (with notable exceptions on both sides).

It’s easy to believe that this difference is the result of each side’s differing perspectives on the constitution, government, economics, and general ideological dispositions. Easy, but not entirely true, it would seem.

For a long time, the popular myth was that Republicans had better access to major donors and could typically count on outraising their Democratic opponents. As a result, Republicans often opposed limits on an area where they had a competitive advantage, while Democrats favored policies that would erase this supposed advantage such as taxpayer funding of campaigns and limits on contributions and spending.

To whatever degree this myth was true, it’s probably fair to say that it has been shattered by Barack Obama’s stunning fundraising success. And with that shattered myth has come something of a realignment of the parties’ views on campaign finance restrictions.

From the text of the report:

Partisans’ views on the desirability of campaign limits may be influenced more by the current election campaign situation than by what their respective parties’ positions on campaign finance have been historically. Democrats — whose party has generally supported spending limits — oppose them by 54% to 42% in the current poll. Republicans — whose party has generally opposed spending limits — favor them by 64% to 33%.

On the question of whether presidential candidates should be required to participate in the taxpayer financing system, 42% of Republicans say yes while only 19% of Democrats agree.

It’s long been apparent to many that where one stood on campaign finance "reform" often has little to do with fighting "corruption," and is instead based on whether you believe it helps or hurts "your side."

And for this, the Supreme Court authorized trampling on the First Amendment?

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Uncertain Times Result in Unheard Speech

The dramatic reduction in political speech from independent groups in this year’s presidential election cycle, as compared to four years ago, is the result of legal risks and uncertainty created by the Federal Election Commission after the last presidential election, according to a memo released by the Center for Competitive Politics.

The mainstream media has noted that independent groups are playing a smaller advertising role during this election season, and a study released last week confirmed that the total expenditures of so-called 527 groups focused on federal races and issues in 2008 are less than half of what they were in 2004.  In explaining why independent groups have been a diminished factor, both the Washington Post and Politico published stories citing stock market losses and the current economic downturn as reasons for decreased independent political spending.

"While it may be that the sudden across-the-board reduction in net worth played a role in preventing independent groups from amassing the funds necessary to maintain a significant advertising presence in this election cycle, there is more to it," observed Reid Cox, Legal Director at the Center for Competitive Politics.  "The legal risk and cost of contributing to independent political speech efforts became real after the 2004 federal election cycle when the Federal Election Commission pursued enforcement actions against seven 527 groups, which resulted in $2.6 million in fines."

"While the fines were imposed on the groups, the FEC put donors on the hook at the same time because what they saw, heard, believed and understood was relevant to any investigation and enforcement action," Cox continued.  "Quite simply, donors were prime evidence, subject to both investigation and subpoena.  Those are some pretty good reasons for a donor to keep his pocketbook closed and mouth shut."

"There can be little doubt that the world’s economic travails have forced Americans to cut their spending, with political contributions being quick on the chopping block for many," Cox acknowledged.  "But the financial collapse alone does not seem to tell the whole story of why independent groups have been much more quiet in 2008," he continued.  "Legal risk and uncertainty have a lot to do with the sound of silence so many of us are hearing from independent political groups this election cycle," Cox concluded.

Cox’s memo is the sixth in a series of analyses produced by the Center for Competitive Politics examining the legal and political issues surrounding the advocacy activities of independent groups in the 2008 election.

CCP’s memo entitled "Uncertain Times Result in Unheard Speech" is available HERE and additional memos published as part of the Election 2008 Free Speech Project can be found HERE.

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Best Quote by a Judge… EVER?

Our friends at the Institute for Justice have won a preliminary injunction against Florida’s electioneering communications law, allowing citizen groups to speak without fear of sanctions this election season.

In his ruling, District Court Judge Stephan Mickle noted that "The rights to speak and associate freely regarding issues of public concern are zealously guarded by the First Amendment. Unfettered and unregulated speech is the rule, not the exception."

Congratulations to Bert Gall and the rest at IJ for this important victory, but more importantly, hats off to Judge Mickle for such a simple yet profound statement on the First Amendment and its protection of political speech.

You can read more about IJ’s case here.

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McCain-Feingold Didn’t Change Express Advocacy, Nor Did McConnell

A mantra kept playing over and over again in my head while sitting through the Federal Election Commission meeting last Thursday: "McCain-Feingold didn’t change express advocacy, nor did McConnell."

At the meeting, the Commissioners considered an Advisory Opinion Request submitted by the National Right to Life Committee (NRLC).  The advice sought concerned whether the NRLC, as a (non-profit) corporation, could use general treasury funds to run two proposed ads that refer to Barack Obama during this election season.

The proposed ads neither used language expressly advocating the election or defeat of Democratic presidential candidate Obama, nor did they really comment on the current election.  Nevertheless, the NRLC wanted to be sure it could run the ads without running afoul of federal campaign finance laws, so the group wanted the FEC’s advice on two questions: (1) would the ads be prohibited as express advocacy, or (2) would the ads constitute impermissible electioneering communications?

These are different and separate legal questions that arise from different and separate statutory provisions that have been interpreted in different and separate Supreme Court decisions.  But you wouldn’t necessarily think there was any difference or separation at all if you had listened to how Commissioner Ellen Weintraub explained her thinking.

To read more, click the headline. 

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Chairman Smith in and at the Post

CCP Chairman Brad Smith had an op-ed in yesterday’s Washington Post on the Obama campaign’s fundraising. A few select excerpts and comments:

…Obama’s epic fundraising should put to rest all the shibboleths about campaign finance reform — that it is needed to prevent corruption, that it equalizes the playing field, or that tax subsidies are needed to prevent corruption.

Don’t expect those misguided efforts to change the system to end here, though. While Obama is benefiting from a fundraising advantage this year, in most elections since the 1960s, Republicans have held a spending advantage. Democrats always complained that that was unfair. Where are they now? Meanwhile, don’t be surprised if some Republicans suddenly become champions of "reform" after this election…

…In theory, Obama thinks something is wrong — he claims to support campaign finance "reform," including more limits on private contributions and support for taxpayer-funded campaigns. But sometimes, actions speak louder than words. Much louder.

We are constantly told by reform advocates (including, in the past, Obama) that large contributions corrupt the candidates. Indeed, Obama has called money "the original sin" in politics. But the Democratic nominee obviously doesn’t feel corrupted by the contributions to his effort. Indeed… the campaign is "proud" of the donors who constitute "the backbone" of the campaign [and] argue that the reason Obama’s fundraising machine doesn’t pose a threat of corruption is that his campaign is somehow different: Contributions to Obama’s campaign come from millions of small donors, not from "fat cats."

…Obama has indeed attracted record numbers of small contributors, many giving just a few dollars over the Internet… Obama is also likely to raise twice as much money in contributions of $1,000 or more than any previous candidate in history. In short, if every small contribution, however defined, were taken away from the Obama campaign, he would still have raised more money in large contributions than any candidate before — by a very substantial margin. Yet Obama isn’t worried about any corrupting effects of all this cash, and neither are his supporters, who continue to open their wallets.

Chairman Smith will be online today at the Post’s Web site discussing Senator Obama’s fundraising and campaign finance regulation in general, if you have any questions or comments you can submit them here.

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The Tie Didn’t Go to the Speaker

Today at the Club for Growth Blog, David Keating pokes fun at the Federal Election Commission by wondering whether the Supreme Court’s instruction — "Where the First Amendment is implicated, the tie goes to the speaker, not the censor" — will prevail upon one or more Commissioners to switch their votes if the FEC finds itself deadlocked on a requested advisory opinion.

Specifically, Keating’s witty suggestion was prompted by an Advisory Opinion Request submitted by the National Right to Life Committee (NRLC), concerning two proposed ads that refer to Barack Obama but do not urge his election or defeat.  Indeed, the proposed ads do not really even comment on the current campaign, but instead question Obama for misrepresenting his responsibility "for killing a bill to provide care and protection for babies who were born alive after abortions."

Nevertheless, since the NRLC is a (non-profit) corporation, the organization wanted the FEC’s advice — and assurance — that it would not run afoul of federal campaign finance laws by using general treasury funds to broadcast the ads.  (As a side note, the Center for Competitive Politics commented on the issue , too, noting why the FEC should permit both ads.)

Well, the FEC met this morning and, just as Keating had predicted, the Commissioners split 3-3, thus failing to issue any advice at all.  And, as was the premise of Keating’s comic conundrum, the FEC’s deep division means, at least for now, that the NRLC can only run the ads at its own risk.

To read more about why the FEC’s tie is the speech’s loss, click the headline.

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CCP Submits Comments on FEC Draft Advisory Opinion

Today the Center for Competitive Politics submitted comments on a Draft Advisory Opinion that the Federal Election Commission will consider at its meeting tomorrow.

The National Right to Life Committee (NRLC) had asked the FEC whether it could use general treasury funds to broadcast two advertisements in the weeks up to the November presidential election.  NRLC sought advice from the FEC because both ads it wanted to run refer to Barack Obama and question his position in being "responsible for killing a bill to provide care and protection for babies who were born alive after abortions," as well as "later misrepresent[ing] the bill’s content."

Earlier this week, the FEC released draft advice approving of the first ad, but concluding that NRLC cannot broadcast the second ad because it constitutes express advocacy.  Indeed, the Draft Advisory Opinion finds that the second ad is prohibited despite the fact that the ad does not use any language of express advocacy at all.  According to the draft advice, the ad constitutes express advocacy, instead, because it "could only be interpreted by a reasonable person as advocating the defeat of Senator Obama."

The comments submitted today by the Center for Competitive Politics point out that the Draft Advisory Opinion is troubling not only because the Ninth Circuit decision and FEC regulation relied upon have been discredited, but also because the ad at issue does not include a call to action, which is required for express advocacy.

To read CCP’s comments, click here.

UPDATE (4:55 pm): The FEC has just posted an alternative Draft Advisory Opinion for consideration tomorrow.  This "Draft B" — circulated by FEC Chairman Donald F. McGahn II — follows directly on CCP’s comments from earlier today and considers them favorably.  Indeed, the "Draft B" advice, if adopted, would "conclude[ ] that neither of the advertisements contains express advocacy" — exactly as CCP had commented, and does so based on the lack of an "electoral portion" as our comments asserted.  "Draft B" also correctly would find that neither ad constitutes a prohibited corporate electioneering communication.

To read the FEC’s "Draft B," click here

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Comments of the Center for Competitive Politics on the Draft Advisory Opinion

CCP Comments urging the FEC to carefully consider a Draft Advisory Opinion concerning express advocacy

Filed Under: Blog, External Relations Comments and Testimony, External Relations Sub-Pages, Federal, Federal Comments and Testimony, Comments and Testimony

The Insatiable Appetite of the Regulators

Yesterday, the New York Times gave us a breathless report that, gasp, campaign funds are being raised under the "hard money" limits of the Federal Election Campaign Act, and even worse (shudder!) political parties and their candidates have common interests in winning elections.

The Times concern is that, "enabled by the fine print in campaign finance laws, [some donors] have written checks that far exceed normal individual contribution limits to candidates, to joint fund-raising committees that benefit the candidates as well as their respective parties."

In other words, the Times and the various regulatory advocates quoted in the article suggest that contribution limits, especially contribution limits to political parties, are too high, and that candidates of a party should not be allowed to urge citizens to give money to the party.  This constitutes a remarkable concession from the position argued seven years ago, that "McCain-Feingold" was needed to stop "soft money" and simply to return the campaign finance system to the shape it originally had after the Federal Election Campaign Act amendments of 1974.  It also indicates a desire to radically expand the reach and scope of the regulatory regime.

Click that headline for more.

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It Must Be Something in the Cheese

The state of Wisconsin is becoming an increasingly dangerous place to make statements of a political nature.

Those who follow the issue of political speech regulation are probably familiar with some of the recent escapades in the Badger State over the past few years.

Wisconsin Right to Life wanted to run ads asking fellow citizens to contact their U.S. Senators regarding judicial nominees, and was promptly slapped down by the Federal Election Commission. The U.S. Supreme Court thankfully upheld the First Amendment in 2007 when it got the chance, preserving at least in part the right of Americans to speak about politics.

Earlier this year, a Wisconsin resident who was critical of a local school bond referendum got in hot water after he paid to place an ad in the Milwaukee Journal-Sentinel voicing his concerns. Residents of Wisconsin who dare to spend more than $25.00 opposing or supporting a candidate or ballot measure must first register with the state as a political committee, something this citizen didn’t do.

The District Attorney who was given the job of investigating the case had perhaps the best quote I’ve ever heard on this type of issue: "It’s a circumstance where it is a citizen who had strong feelings about the referendum and just had no idea that those campaign finance laws that you hear about now and then even remotely applied to a citizen who just wanted to exercise his constitutional right to free speech."

And of course, earlier this year CCP Vice President Steve Hoersting was in Wisconsin, testifying in front of the Government Accountability Board about proposals to tighten regulation of independent electioneering communications.

As if all this wasn’t enough to make Wisconsin a dangerous place to speak, there is now an effort to criminally prosecute a successful candidate for State Supreme Court for allegedly "false" statements made in his campaign ads.

To read about the latest threat to free political speech from the Badger State, click the headline above.

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