Deconstructing the SCOTUS tax financing case

Yesterday, the U.S. Supreme Court decided to hear arguments in Arizona Free Enterprise v. Bennett. Observers expect the court to hear arguments in March and render a decision by the end of June.

The Institute for Justice, which represents independent political groups in the case, issued a press release. The Goldwater Institute, which represents traditionally funded Arizona candidates, also issued a statement.

The Center for Competitive Politics plans to file a friend-of-the-court brief in this case in advance of oral arguments. CCP filed a brief in June of 2009 at the U.S. District Court level supporting the plaintiffs and a brief this September in support of the group’s cert petition.

Filed Under: Blog, Disclosure, Disclosure Press Release/In the News/Blog, DISCLOSE, Disclose Act, Arizona, Maine

The DeLay conviction: even the Post doesn’t buy it

CCP Chairman Brad Smith discusses the recent conviction of Tom Delay at National Review Online:

When even the Washington Post is coming to the defense of Tom DeLay, one can be sure that something isn’t quite right with the former House majority leader’s prosecution and conviction…

[B]efore McCain-Feingold, both the Republican and the Democratic parties routinely accepted “soft money” (from corporations and unions, plus large individual contributions) from Texas and other states where corporate funds could not be contributed to candidates but where national parties were free to spend soft money on party administration and advertising on issues of importance to the party; they could also send the money to state and local candidates in states that allow corporate contributions. At the same time, national parties also received contributions of “hard money,” consisting of smaller individual contributions. Hard money, kept in separate accounts, was also sent back to state candidates—in all states.

There was thus a constant flow of hard and soft money (the latter including corporate contributions) to and from the national party committees, including direct contributions to state candidates. Indeed, during the 1990s the DNC developed a “tally” system, in part to make sure that soft money contributed to the DNC from a given state was roughly offset by hard-money contributions from the DNC.

In summary, few state party chairs or national party operatives would have given a second thought to the legality of such money swaps in 2002, and it would not be shocking if the case made against DeLay could be made against many others operating in politics at the time. For years, the Democrats tried to “get” Tom DeLay, even filing a RICO action against him in the 1990s. Now they have finally succeeded. Congratulations. But as even the Washington Post is pointing out, “When Mr. DeLay, following the conviction, assailed ‘the criminalization of politics,’ he had a fair point.”

Read the entire post at National Review Online.

Filed Under: Blog, Texas

Supreme Court to hear tax financing challenge

The U.S. Supreme Court has agreed to hear a First Amendment challenge to Arizona’s tax financing program for political campaigns, according to a brief announcement from the Court today.

The Center for Competitive Politics (CCP) filed a friend-of-the-court brief urging the Supreme Court to hear the case, Arizona Free Enterprise Club’s Freedom PAC v. Bennett.

“Arizona’s system of tax financing for political candidates has serious constitutional defects,” said CCP Vice President of Policy Allison Hayward, the author of the brief. “Beyond that, the program’s incentive, a speech-punishing subsidy to participating candidates, has no basis in sound public policy.”

Filed Under: Disclosure, Disclosure Federal, Disclosure Press Release/In the News/Blog, Disclosure State, External Relations Sub-Pages, Press Releases, Tax Financed Campaigns Federal, Tax Financed Campaigns Press Release/In the News/Blog, Tax Financed Campaigns State, Tax-Financing, Maine

Goodliffe on the real effect of campaign ‘war chests’

In line with CCP’s analysis that the promotion of more voices results in a richer political process, we’re expanding our Academic Advisory Board by inviting scholars from diverse background to contribute to the discussion.

Along these lines, we are privileged to welcome to our Board Jay Goodliffe, an Associate Professor in the Department of Political Science at Brigham Young University. In addition to his teaching duties, Goodliffe is an Associate Chair in the Department of Political Science and a Research Fellow at BYU’s Center for the Study of Elections and Democracy. He has authored numerous articles and several book chapters on his research interests, which include congressional campaigns and elections, interest groups, and political methodology.

Much negative conjecture exists about so-called “war chests,” a term used frequently to denote money saved by a candidate from one election to be used for the next election. Although much is spoken about them, the remarks of those doing the criticizing indicate a misunderstanding of the true function and varied effects of war chests-as both deterrent forces and saving mechanisms. Fortunately, in an article published last year in an edition of the Quarterly Journal of Political Science, entitled “Campaign Fund-raising and Spending for Deterrence and Savings,” Goodliffe explores the deterrence and savings rationales underlying war chests, shedding some major light on the oft-mischaracterized concept.

Filed Under: Blog

A common sense campaign finance proposal

As lawmakers begin to tackle weighty issues in the lame duck session and look to the next Congress, the Center for Competitive Politics will work with lawmakers in both parties to advance pro-speech legislation that reaffirms important First Amendment principles.

In what we hope is the first of many common sense proposals, Rep. Tom Cole (R-Okla.) recently introduced the “Free Speech and Citizen Fairness Act of 2010” (H.R. 6286). This legislation would eliminate the annual aggregate cap on contributions by individuals, repeal the limit on coordinated spending by national or state political parties, and clarify that blogging and other internet activities are not treated as contributions or expenditures.

Filed Under: Blog

Underwhelmed by shareholder regulation proposals

As the DISCLOSE Act siren song wails its last, let us not forget the other “reform” proposal made in the wake of Citizens United: shareholder democracy!

No less than the Harvard Law Review has released articles written about Citizens United v. Federal Election Commission, corporations, political speech and other related stuff. Eager to broaden my horizons, I took a look at the article by Lucian A. Bebchuck and Robert J. Jackson, Jr. Bebchuk is kind of a big deal corporate law professor at Harvard. Jackson is at Columbia, a graduate of Harvard Law, and apparently no relation to Robert H. Jackson. Overall, the authors argue that the law should impose special rules governing who gets to decide whether, and what, the corporation should say about politics. They prefer special rules to the default rule, which is that, as with ordinary business decisions, the directors and executives have authority to make political spending decisions.

I am underwhelmed. Not by the overall point, but by the lack of interest the authors demonstrate for the overlooked complexities that corporate governance brings to the issue of how corporations can or should speak in politics.

Filed Under: Blog, Corporate Governance, Corporate Governance Press Release/In the News/Blog, Disclosure, Disclosure Press Release/In the News/Blog, External Relations Sub-Pages, DISCLOSE, Disclose Act

Esenberg on the future of tax financed campaigns

As CCP looks to the future, we seek increased contributions from scholars interested in campaign finance issues. To this end, we are making a concerted effort to expand our Academic Advisory Board. One of our newest Academic Advisors is Professor Richard M. Esenberg, a Visiting Assistant Professor of Law at Marquette University Law School. He is the author of numerous law review and magazine articles on a variety of topics. Before coming to Marquette, Esenberg served as Vice President and General Counsel of Rite Hite Holding Corporation in Milwaukee, Wis. He has experience as lead trial counsel in major intellectual property and advertising litigation and as trial counsel in numerous public law cases.

In early 2010, Esenberg authored “The Lonely Death of Public Campaign Financing,” published in the winter 2010 edition of the Harvard Journal of Law and Public Policy. In the article, Esenberg argues that, in the wake of two major campaign finance decisions by the Roberts Court, attempts to implement tax financed elections are futile. He continues by making a greater point about the underlying principles that should guide an electoral system.

Filed Under: Blog

Reformers’ lame campaign finance push

Lobbying organizations dedicated to curbing political speech rights today renewed an effort to convince Senators to vote for a third time on a modified version of the DISCLOSE Act, a misguided campaign finance bill.

It’s unclear if the Senate will vote on the DISCLOSE Act again in the already packed post-election session, but the updated version would reportedly strip out provisions of the bill that explicitly ban political advocacy.

“For months, self-styled reformers claimed that the DISCLOSE Act was simply about disclosure. Now, forced to strip out the most explicit speech prohibitions in the bill, they disingenuously insist what remains is ‘disclosure only,'” said Center for Competitive Politics Chairman Bradley A. Smith, a former FEC Chairman. “Nonetheless, groups spanning the political spectrum—from the ACLU to the U.S. Chamber of Commerce—have blasted the bill’s heavy-handed and poorly-drafted disclosure and disclaimer provisions as unconstitutional restrictions.”

Assuming Senate leaders simply remove the provisions of the DISCLOSE Act banning campaign expenditures of many government contractors and U.S. subsidiaries, the remaining disclosure and disclaimer provisions still substantially restrict and deter political speech.

“In unveiling the DISCLOSE Act, Sen. Chuck Schumer touted the fact that the excessive disclosure and disclaimer requirements would deter political speech,” said CCP President Sean Parnell. “Whatever cosmetic changes are being considered will not change the bill’s effective suppression of the voices ‘reform’ lobbyists wish to mute.”

The pro-regulation lobby often stresses part of the Supreme Court’s opinion endorsing disclosure in Citizens United v. Federal Election Commission, the January decision that lifted government prohibitions on the independent political speech of advocacy groups, businesses and unions. But the Court’s opinion merely reaffirmed past decisions highlighting certain benefits of disclosure. The Court has ruled in other cases that certain limits restrict the government’s ability to force private, independent groups to reveal their member and donor lists, and  the broad disclosure and disclaimer scheme in the DISCLOSE Act would be constitutionally suspect.

The drawbacks to onerous disclosure have long been noted by leading campaign finance experts: “Since few aspiring censors will admit openly to their purposes, the appeal to ‘disclosure’ has given them the moral authority, in public argument, that they need,” prominent Democratic lawyer Bob Bauer wrote on his now-defunct blog in 2007 (Bauer now serves as White House counsel; the administration supports the bill). “This is because ‘disclosure’ is a regulatory tool; it is meant to serve the government’s purposes, not only or even primarily those of individual citizens in need of information… This is a large part of disclosure’s work: to force outcomes, not principally to inform free voter choice.”

Filed Under: Disclosure, Disclosure Federal, Disclosure Press Release/In the News/Blog, External Relations Sub-Pages, Press Releases

Dirty truth about ‘clean elections’

Our friends at the Institute for Justice have produced this video explaining the twisted logic behind “clean elections” schemes in states such as Arizona, Maine and Florida:

Filed Under: Blog, Arizona, Maine

Testimony of CCP President Sean Parnell to the New Jersey Senate State Government, Wagering, Tourism and Historic Preservation Committee

Written testimony of CCP President Sean Parnell to a November 15, 2010 hearing before the New Jersey Senate State Government, Wagering, Tourism and Historic Preservation Committee on the topic of disclosure requirements for issue advocacy organizations.

Filed Under: Blog, Disclosure, Disclosure Comments, Disclosure State, External Relations Comments and Testimony, External Relations Sub-Pages, State, State Comments and Testimony, Comments and Testimony, New Jersey