Expenditures, Rachel Maddow and the Anti-Saloon League!

Anybody acquainted at all with my work mus know how gleefully I responded to this segment from the Rachel Maddow show. While I haven’t yet read Last Call, the book touted in the segment, I’ve read a number of other works on the Anti-Saloon League and their relentless advocacy of Prohibition at the state and national levels.

We should all remember one factor that made their fight especially powerful. The Anti-Saloon League touted itself as a public education organization. It fought against attempts to regulate it as a political committee under state and federal law. On the other side of the issue? Brewers. Which were . . . wait for it . . . corporations! Barred at the federal level from making contributions under the Tillman Act of 1907, and likewise prevented from making contributions under a host of copy-cat state laws. In fact, the case holding the Tillman Act constitutional arose out of the prosecution of Pennsylvania brewers fighting back against prohibition (see U.S. v. U.S. Brewers Assoc., 239 Fed 163 (W.D. Pa. 1916—I’d link to it if I could).

It wasn’t a fair fight for a lot of reasons. Brewers were disproportionately German. Germany wasn’t so popular at the time. BUT the uneven restrictions on political activity certainly didn’t help.

Filed Under: Blog

Nobody in dem shadows except political committees

We’ve hears that the justification for the Shotgun Sellout negotiated by the NRA is that the DISCLOSE Act should require grater disclosure of small “shadowy” fly-by-night groups than those with a proven track record and national reputation.  (Like the NRA.  Or BP.)

But why stop there? We might want to regulate a group formed for the purpose of intervening in a campaign, once it raises or spends $1,000 for that purpose.  Wow.  That’s pretty tough, huh?

It also happens to be CURRENT LAW.  At present , if someone were to form a group to defeat a member of Congress, once that group raises or spends $1,000 it is required to register as a political committee, name a Treasurer, identify a bank account, and itemize all contributions and expenditures that trip the $200 threshold.  And the can’t take corporate or labor money, and individuals can’t give them over $5,000 a year.

Ah, that’s nice, you say, but if somebody wanted to be “shadowy” they wouldn’t do that.  But, you know, they probably wouldn’t comply with the ridiculous notice requirements imposed by DISCLOSE either.  If a person or group is already willing to violate the law, adding another law isn’t likely to prompt a change of heart on their part.

Filed Under: Blog

FEC almost united on Citizens United

It had all the ingredients of a cage match. Competing drafts of the Citizens United Advisory Opinion were before the Federal Election Commission. One reiterated the broad press exemption of precedent; the other read the exemption much more narrowly. And—the meeting started late! Could it be that there was serious interest at the FEC for trimming back the press exemption? Were there censors hanging in the shadows, ready to pounce on the distribution of a DVD … or *gasp* a BOOK?

Sadly, as least for those who value FEC open sessions as a source of entertainment, that showdown was not to be.

As it turned out, the commissioners showed a healthy respect for the limits the statute places on the scope of the law when news, commentary and editorializing is concerned. So you might wonder—why the second draft? 

The secret was soon out. Commissioner Steven Walther confessed to being the source of Draft B, calling it a “compromise.” He noted that, after the Citizens United decision, applying the press exemption had the effect of taking financial disclosure off the table. This, to him, was worrisome. Apparently it would be enough to know that Citizens United was the producer of a movie broadcast on television, but when that same movie is distributed via DVD the public should be able to learn the identity of the movie’s backers as well?

That would seem to be the effect of Draft B and, really—makes no sense.

Filed Under: Blog

Press Exemption Existentialism: Who Can Speak?

Tomorrow, the FEC will consider two competing drafts for Advisory Opinion 2010-08.  This responds to a request from Citizens United to find that their film production and distribution activities are exempt from classification as an “expenditure” or an “electioneering communication.”  

Draft A says “Exempt.”

Draft B says “sort of Exempt.”  That is, in draft B the FEC reads the exemption as applying only to news commentary or editorials distributed “by any broadcasting station (including cable), Web site, newspaper, magazine, or any other periodical.”  So, a Citizens United film on broadcast TV is exempt – but the same film on DVD or shown in a theater is NOT.

Can we point out that books would not be protected either, under this reading?

Malcolm Stewart, call your office!

Filed Under: Blog

The False Promise of Tax-Funding in Political Campaigns

In May 2010, the Government Accountability Office, or GAO, released its follow-up report on taxpayer funding for political campaigns.  This report supplemented GAO’s initial study from 2003, which found that the two states with full tax funding – Maine and Arizona – enjoyed none of the promised benefits from those programs.  Section 310 of the Bipartisan Campaign Reform Act of 2002 mandated that GAO study and report on these laws.  Since the first tax-funded legislative races were only held in 2000, the GAO’s disappointing findings in 2003 could be explained by the lack of data.  Advocates hoped that this latest report, which includes data from elections in 2004 through 2008, would provide welcome support for these reforms, such as the Fair Elections Now Act currently before Congress.

Unfortunately for supporters of tax funding, the GAO’s 2010 report concludes, once again, that the benefits supposedly derived from tax funding don’t occur in any way that can be shown by generally accepted techniques of analysis.

The belief in reform through tax funding for campaign is not based on fact.  Like an article of religious faith, it is a belief that transcends proof.  It may be based on a general antipathy toward politics or capitalism, or a unfounded confidence that some “silver bullet” can be found to make governance less contentious.  The GAO Report thus will likely have little influence on the debate about reform.  Unfortunately, the movement toward taxpayer funding reform will proceed at a level of abstraction that is not just unrealistic, but misleading

Filed Under: Blog, Arizona, California, Maine

Stay Issued in Rescue Funds Challenge

Justice Kennedy, as Circuit Justice for the Ninth Circuit, has issued a stay in McComish v. Bennett, the challenge to the Arizona Clean Elections law and its provision of rescue funds to tax-funded candidates.

Which is “bad news for supporters of reasonable campaign finance reform” we’re told.  Because its reasonable to attribute third party spending to a candidate who may not want it, and thus give his or her opponent ye more tax funds?  Sorry, that doesn’t seem reasonable, or even very coherent.

Filed Under: Blog

Campaign Contributions and Influence…

It’s understandable that many people think that campaign contributions are a pernicious weapon of private influence on policy.   A recent prominent report on OpenSecrets described the “mashup” of campaign contributions and earmarks.   In fact, you might even believe that eradicating private funding of campaigns would reduce the influence of special interests and their lobbyists. But according to real, live candidates in jurisdictions where tax funding is available, that isn’t the case.

 

Filed Under: Blog, Arizona, Maine

Twitter, Facebook in crosshairs of political speech regulators

Twitter and Facebook are great means for keeping in touch, and popular tools for political activists.  Unless… potentially… if you’re in Maryland.

The Maryland State Elections Board, in an attempt to extend disclaimer requirements to social media, is proposing new regulations that impose burdensome requirements on Maryland politicos.  Essentially, Maryland wants to treat social media like snail mail.  Their thinking must be that if a piece of political mail requires a statement declaring who paid for it and sent it, so too should these new forms of communication.

Let’s set aside for a second the whole problem of equating a Twitter feed, that a person only sees because he or she has asked for it, with unsolicited bulk mail.  Let’s also set aside the fact that social media sites already have means to check the bona fides of users, and that fraud and abuse are better handled by the ISP or service provider than by a one-size-fits-all identification requirement that applies only to Maryland political actors already subject to the state disclaimer requirement. 

The real devil is in the details.

Filed Under: Blog, Maryland

The Michigan Auto Dealers Prosecution: Exploring The Department of Justice’s Mid-Century Posture Toward Campaign Finance Violations

In this article, Allison Hayward examines the impetus behind a 1948 decision by the United States Department of Justice (DOJ) to prosecute a Flint businessman for making illegal corporate contributions and the legacy of what transpired. Ultimately, lawyers on both sides questioned the legality of the “corruption” laws, and the case ended without a single conviction. The tenacity of the DOJ in its quest to make convictions is of great interest to Hayward throughout this piece, which she eventually proves was unwarranted. The results beg the question:  why weren’t campaign finance laws enforced before the Voter Registration Act of 1974? Using this case as context, Hayward thoroughly overviews campaign finance regulations before 1974 and provides an interesting look at campaign finance regulation in its infancy.

Filed Under: Enforcement, Research, Independent Speech, Jurisprudence & Litigation, Independent Speech, Jurisprudence & Litigation