On Monday, I will be part of a panel entitled “Law, Politics and the Internet: What is the Current State of Regulation? Is More Regulation on the Horizon?” at the IPDI Politics Online Conference 2009 held at the Ronald Reagan Building and International Trade Center.  The panel is scheduled for 11:30 a.m. in Hemisphere B, and I will be joined by election lawyer Jason Torchinsky, who is chairing the panel, as well as former FEC Commissioner Hans von Spakovsky, former ActBlue General Counsel Jonathan Zucker, and Campaign Legal Center Associate Legal Counsel Tara Malloy.  It should be an interesting discussion that will cover not only how communications and technological advances have affected campaigns and grassroots politics, but also how campaign finance laws and regulators are dealing with rapid changes in campaign financing and political speech and association since the mainstreaming of the Internet.

You can find the agenda for the entire IPDI Politics Online Conference 2009 here, and you can find a page with information about the “Law, Politics and the Internet” panel that I am on here.

This week, a California government agency released a hyperbolic screed against money in politics, bemoaning the fact that in the past nine years candidates raised about $1 billion to fund their campaigns.

That figure prompted a rant from the Ross Johnson, the chairman of the California Fair Political Practices Commission:

“The $1,006,638,463 directly raised by officeholders and candidates works out to $344,503 per day or $14,354 per hour, 24 hours a day, seven days a week, 365 days a year, and this doesn’t even include the more than $110 million spent on their behalf in so-called ‘Independent Expenditures!’”

According to BNA’s Money & Politics Report:

The report, “The Billion Dollar Money Train,” examines how officeholders and candidates have circumvented the 2000 ballot measure, Proposition 34, to raise the money. Proposition 34 limited contributions to legislative candidates at $3,000 per contributor or $6,000 from a small contributor political action committee, contributions to statewide candidates other than gubernatorial candidates at $5,000 or $10,000 from a small contributor PAC, and contributions to gubernatorial candidates at $20,000 regardless of the source.

The limits have gone up every two years since the law went into effect, and are now capped at $3,900 per contributor or $7,800 per small contributor PAC for legislative candidates, $6,500 per contributor or $12,900 per small contributor PAC for non-gubernatorial statewide candidates, and $25,900 per contributor for gubernatorial candidates.

The Los Angeles Times followed up with a scathing editorial, “Politics — that’s where the money is.”

Under the logic of so-called campaign finance reformers, special interest money is any money that politicians raise from any source — whether it’s a company, an association, a union or an average individual. It’s all dirty, special interest money and we should get rid of all of it and replace it with the good kind of money – you know, the manna that comes from the government; the money that is taken from people by force. Voluntarily donated money is bad; forcibly extracted money is good. Get it?

(click here to read more)

New Jersey recently provided a glimpse into the future of the First Amendment if thin-skinned politicians are given greater control over political speech, not to mention those engaging in political speech.

NJ.com, a site providing news stories from around the Garden State, recently offered the following story:

Mayor Dave Roberts pulled out the political big guns yesterday to take down a billboard that offended him.

Jersey City real estate firm Metropolitan & Waterfront Residential Brokerage paid for the billboard outside the Hoboken PATH station that read: “Cut your Hoboken property taxes 47%. We’ll help you leave.”

The sign, which was up for only a day, referenced Hoboken’s state takeover and subsequent massive tax hike…

Click here to read more 

 [April 14, 11:00 a.m.  There is an update below the fold: Click the headline and scroll to the bottom of the post]

Bob Bauer addressed the question of FEC "deadlocks" in his blog yesterday.  For some background on the issue, see here (Roll Call) and here (BNA)($$).  It’s a typically thoughtful Bauer post, yet there is a part of it that leaves us more than a little puzzled.

In the BNA article, I am quoted for pointing out that a 3-3 vote is a "definitive resolution" of an enforcement case that "a violation has not been found."  Bauer says:

"this argument responds, in part, to an objection not really made.  For those observers angered by the agency’s deadlocks, the failing is here is that the agency should have decided the case—that it should be possible to rely on the Commission to apply the law to the facts when the both law and facts, and the fit of one to the other, are fairly clear.  Their point is that the agency is not being responsible when simply refusing enforcement for bureaucratic, ideological or partisan political reasons.  The option of judicial intervention, these critics argue, is no excuse: the courts should not be de facto administrators, resolving issues which the administrators shirked, and there are costs and of course delays associated with litigation that are incompatible with ordinary-course enforcement."

This seems to misunderstand our point and indeed the importance of a 3-3 (i.e. "deadlocked" -oooh) vote.  When the FEC votes 3-3 in an enforcement matter, it DOES decide the case.  It HAS applied the law to the facts, and reached a result. (And if the proper result were particularly clear, the vote would not have been 3-3 but rather more likely 5-1 or 6-0).    A 3-3 vote resolves the case and has the same legal meaning as a 4-2 or 5-1 or 6-0 vote.  It means that the Commission has rejected the legal theory of the case, or held that the facts in the particular matter do not support that theory.

Click here for added analysis.

Last week US News & World Report offered competing op-eds by Bill Press and Senator Jim DeMint (R-SC) on whether the so-called "fairness doctrine" should return to talk radio. Predictably, in his call for bringing the "fairness doctrine" back, Press had a number of – interesting, shall we say – statements.

First up was his statement that "nobody" is calling for bringing back the "fairness doctrine." I don’t know about you, but I think I’d feel vaguely insulted at being called a "nobody" if I were a United States Senator who had gone on the Bill Press Show within the past two months and called for a return of the "fairness doctrine (see Sen. Debbie Stabenow discussing the "fairness doctrine" here, and also Sen. Tom Harkin a few days later also supporting the "fairness doctrine,").

The comments by Press that "nobody" is calling for a return of the "fairness doctrine" are also curious because Press himself wrote an op-ed calling for the return of the "fairness doctrine" in the Washington Post around the same time.

Click here to read more easily debunked arguments in favor of the "fairness doctrine"

Roll Call has a very informative article today on the tension at the Federal Election Commission between the goals of transparency and caution in terms of what type of information is released and language is used in press releases when a case is concluded. The full story is here (subscription required): FEC Split Over Its Openness

A few brief excerpts:

The Federal Election Commission’s leaders are struggling with… how open and expansive the agency should be in publicizing its caseload…

… in recent interviews with members of the bipartisan, six-person overseer of the nation’s election system, deep divisions became obvious regarding the FEC’s role – if any – in trumpeting high-dollar fines and other apparent triumphs through the commission’s press office.

click here to read more

Here at CCP we never cease to be amazed that politicians and their supporters who push campaign finance "reforms" have yet to come to grips with what the highest court in the land has said for the past 30-plus years about the proper constitutional grounds for such projects.  Today provided yet another example.

In a story out of post-Blagojevich Illinois, the Associated Press reported late yesterday that now-Governor Pat Quinn "wants campaign finance limits in place for next year’s election, a key component of his effort to clean up state government."   Specifically, the story noted that Governor Quinn "contends limits would level the political playing field."

This brings me to my point.  The Supreme Court time and time again has explicitly held that "the concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment, which was designed … to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people."  Buckley v. Valeo, 424 U.S. 1, 48-49 (1976) (internal quotations omitted).

(click here to read more)

Illinois Governor Pat Quinn has a new idea:  all candidates for governor next year should be prohibited from using any money they’ve already collected.  Taking advantage of the state’s recent bribery and corruption scandals, he wants the state to enact new limits on campaign contributions (yeah, like campaign contributions were former Governor Blagovich’s problem), and suggests that all money raised before a new law takes effect be given to charity.

Of course, Mr. Quinn’s likely primary opponent, state Attorney General Lisa Madigan, has at this point raised far money than Mr. Quinn, so if everybody had to start over, that would benefit… Shazam! Not that an incumbent would ever propose "reform" with an eye to self benefit. 

I noted back in January that the Clean Elections Institute in Arizona may be forced to close because it was facing financial difficulties. The Clean Elections Institute, you may recall, was founded specifically to defend the Copper State’s almost indefensible “clean elections” program.

The other day came news that the Clean Elections Institute had failed to raise the money they needed to stay open, and will be closing. From the Arizona Capitol Times:

The Clean Elections Institute closed its office, shut down its Web site and stopped issuing paychecks to staff members after an emergency fundraising effort came up short.

The root of the problem, apparently, was the decision by a Clean Election Institute major donor to not renew a $50,000 gift.

I commented earlier on the irony of a group supposedly founded to “get money out of politics” discovering the importance of having enough money to promote a political agenda. Campaign finance limits of course had nothing to do with the Clean Election Institute’s fundraising troubles, by all accounts the tough economy was behind their difficulties (and I can sympathize).

But I wonder if any “clean elections” advocates, at least in Arizona, are now pondering the implications of what “angel contributors” for candidates mean? I often cite the example of “Clean” Gene McCarthy, who launched an utterly futile campaign against President Lyndon Baines Johnson for the Democratic nomination in 1968, a campaign that suddenly became very real when a handful of very wealthy liberals wrote sizeable checks to his campaign. Checks that would today be wildly illegal, under so-called campaign finance “reform.”

Click here for more on the money woes of an anti-money group

Today’s Wall Street Journal carries a story about Frenchman Xavier Renou, a professional protestor who makes his leaving teaching others the art of protest for a fee.  What caught our eye…

"And fighting big business requires real cash outlays. ‘I want out of capitalism,’ he says, adding, ‘We are always in a bit of precarious financial situation.’"

How true.  Certainly we could do away with these pesky protests by cutting off the flow of cash that supports them.  Indeed, the article goes on to note how Renou’s methods include bringing in cooks and food to feed the protestors, specialists for jobs such as climbing to hang banners on buildings, and the like, which has got to add up.  Would limiting their contributions and spending be permissible in order to prevent them from having "undue influence?"  After all, we wouldn’t be limiting speech – only the expenditures or contributions of money.  Isn’t that the "reform" movement’s constitutional argument? (Or, as the Supreme Court would have it, we would be limiting only "proxy speech," thereby deserving of less protection, especially given the "compelling" government interest in preventing undue influence and access, which create "the appearance of corruption.")

One senses that Mr. Renou, who "wants out of capitalism," would simply like to have the state pick up the tab.  After all, when you’ve got campaigning to do, not to mention a job, why should you have to spend time collecting money?  Let’s just make other people pay for it.  But we suspect that most people – even in much more collectivist France – would balk at using their tax dollars to support Mr. Renou’s protests.  And we believe that most people in the U.S. equally object to using their tax dollars to support the silly political speech rantings of Dick Durbin, too.