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I guess it’s “unforeseen” if you’re oblivious to the obvious…

Published on October 10, 2008
by Sean Parnell

File Under: "Clean" Elections, Faulty Assumptions, Taxpayer Financing

We've been following closely the Goldwater Institute's case in Arizona challenging their taxpayer-funded campaign scheme. Readers may recall that, based on the Supreme Court's ruling in Davis v. F.E.C., U.S. District Court Judge Roslyn Silver ruled that the "matching funds" provision of Arizona's so-called "clean elections" program was unconstitutional. After a great deal of educational efforts by CCP, it was this ruling that led to the final collapse of efforts in New Jersey to extend and expand their own welfare-for-politicians experiment in early September.

Although Judge Silver acknowledged that the "matching fund" were unconstitutional, she held off on preventing the program from moving forward with dispensing the additional money to candidates participating in the program. Instead, she asked attorneys for both sides to prepare arguments over whether the First Amendment rights damaged by the program were sufficient to change the rules this close to the election (presumably the matching funds are history either way after this election).

Reading this article reporting on yesterday's hearing, I had to chuckle over the assertions of the attorney defending the "clean elections" program and why the "matching funds" should be distributed despite the fact that they are unconstitutional:

Brad Phillips, a California-based attorney representing the Clean Elections Institute, said revoking publicly funded candidates' ability to collect matching funds would unfairly punish them for using the system and hold them accountable for unseen risks that the provision could be swept away in the middle of a campaign.

"In good faith, they relied on the act as well as the matching funds," said Phillips, adding that the candidates would be ill-prepared to respond to last-minute advertisements from their opponents.

Click on the headline above to see just how "unforseen" the risks were.

An interesting question and what I hope is an interesting response

Published on October 9, 2008
by Sean Parnell

File Under: Faulty Assumptions

Earlier this week CCP received a request from a student at Trinity University who is writing a research paper on campaign finance regulation. I thought I'd share with you one of her questions, and my response.

Q: What sort of campaign finance reforms would take into account individual rights to freedom of political expression while also protecting the general public from possible corruption?

A:There is no real "protection" from possible corruption available through campaign finance "reform," because there is very little corruption that goes through the campaign finance system. The $90,000 found in William Jefferson's refrigerator and the "menu" of bribes that Randy "Duke" Cunningham created, just to mention two more recent and notorious examples of public corruption, had nothing to do with campaign contributions, and in fact suggest that campaign contributions aren't sufficient to get Members of Congress to engage in unethical behavior (otherwise, they wouldn't have had to have been bribed). The alternative would be to suggest that Jefferson and Cunningham are/were among the least corrupt Members of Congress, because their colleagues are corrupted by far less amounts of money that can only be used for a limited purpose, their campaigns. Few would agree with this latter explanation, I suspect.

The best reforms would acknowledge that money is vital to political speech (just as it is vital to the press and houses of worship, as we'd quickly see if we made it illegal to spend more than $2,300 in advertising with a single newspaper or to contribute more than $2,300 to a church), and recognize that campaign contributions don't pose the threat of corruption that is popularly thought. Unlimited contributions, with disclosure for truly large donations to elected officials, would be the best way to go, along with a voting public that is vigilant and pays attention to what their elected officials are doing and how they are spending taxpayer dollars. Absent a public unwilling to put up with corruption, there is no reform, either along the "McCain-Feingold" lines or what we at CCP would prefer, that is going to address corruption in government.

Federalist Society Election Law Conference

Published on October 7, 2008

CCP chairman Bradley A. Smith will be participating on a panel titled "Election Finance and 527s" today at 10:30 a.m. as part of the Federalist Society's Election Law Conference.

Smith will be joined by Mr. Joseph M. Birkenstock of Caplin Drysdale, Mr. James Bopp of Bopp, Coleson & Bostrom, and Mr. Scott E. Thomas of Dickstein Shapiro.

According to the Federalist Society, "This panel will consider the laws and regulations that limit or restrict giving, receiving, and/or spending related to an election, as well as the constitutional requirements and boundaries for such rules.  Thus, the panel will consider the topics that generally fall under the umbrella of campaign finance, most notably the continued fight over who can contribute and/or expend what money on political advertising."

More after the jump.

WWJD: What Would Jefferson Do?

Published on October 3, 2008
by David Mason

File Under: Enforcement

Barack Obama is upset about lies he thinks are being told about him.  CCP and others are alarmed by threats to resort to criminal and regulatory processes to silence his critics.

In trying situations we sometimes ask what great leaders would do.  In the case of Thomas Jefferson, founder of the Democratic Party, we don't have to guess.

Jefferson was subject to outrageous attacks on his patriotism (too French), his religious beliefs (allegedly atheist), and his personal life.  His political allies were actually thrown in jail for criticizing the ruling Federalists.  Armed conflict seemed a real possibility.

Jefferson fought back hard, but he used the press and the political process, not threats of prosecution.  Rather than turning the tables once he gained power, he used the experience to show America, and the world, the superiority of free speech over government coercion to combat error.  It's a lesson the Obama campaign should learn.

Defending Nancy Pelosi

Published on October 1, 2008
by David Mason

File Under: Faulty Assumptions, Press

The Center for Competitive Politics welcomes former FEC Commissioner David Mason as an occasional contributor to the blog. His first post follows:

Put me down as opposed to most of House Speaker Nancy Pelosi's political aims, but she deserves some defense from a front page ethics attack in today's Washington Times. 

The Times reports dramatically that "Pelosi's PAC pays bills for spouse's firm", referring to $99,000 in payments over the past 9 years.  The problem is, there is no evidence, at least in the Times story or FEC reports, that the PAC is paying bills for Paul Pelosi's apparently successful firm, FLS, much less that Paul Pelosi is "on the payroll" of the PAC as suggested in the story.

What FEC reports do show is a classic Catch-22 that Federal campaign finance law creates: Pelosi's PAC cannot accept free rent from her husband's business, but if she pays rent, as required by law, she's accused of lining her family's pockets.  The kerfuffle has nothing really to do with ethics, and no bearing on any important issue, but it gets front page treatment because the mere hint of corruption is politically powerful.

More after the jump.

Will Frankenstein Return?

Published on October 1, 2008
by Michael Schrimpf

A long slumbering, but never dead, enemy of free speech is now able to return.

The Orwellian-titled Fairness Doctrine forced broadcasters to "afford reasonable opportunity for the discussion of conflicting views of public importance" until the Federal Communications Commission (FCC) abolished it in the 1980's.

Initially intended to force broadcast stations to "cover controversial issues of public importance to the community" and "provide a reasonable opportunity for the presentation of contrasting viewpoints on those issues," the Fairness Doctrine did just the opposite.

An amendment to an appropriations bill banned the FCC from re-instating the Fairness Doctrine during the last fiscal year.  But today marks the beginning of a new fiscal year and some legislative leaders have already begun touting the merits of the Fairness Doctrine.

More after the jump.

Do Taxpayer-Funded Campaigns Save Taxpayer Dollars?

Published on September 30, 2008

The Center for Competitive Politics (CCP) released today an issue analysis refuting the myth that the cost of taxpayer-financed political campaigns can be offset by removing alleged pressures placed on officeholders by so-called ‘special interest' contributors.

"The claim that taxpayer-financed campaigns may actually lead to savings for taxpayers is demonstrably false," said Sean Parnell, President of the Center for Competitive Politics.  "These political welfare schemes continue to show themselves to be a poor use of taxpayer dollars with few discernable positive outcomes."

Advocates of taxpayer-financed campaigns like the U.S. Public Interest Research Group (USPIRG) have claimed in the past that public-financing programs would "accrue enormous savings by reducing wasteful expenditures, such as earmarks."  Common Cause, another advocate of taxpayer-financed campaigns, has stated that such programs save "taxpayer dollars by reducing inappropriate giveaways to campaign contributors."

But CCP's review of the state budgets in Arizona and Maine, the two states commonly cited by proponents as having model public-financing systems, refutes these claims.

More after the jump.

Bauer vs. CCP vs. Wertheimer vs. DOJ re 527 Enforcement

Published on September 29, 2008
by Brad Smith

File Under: Enforcement, Political Committees & 527s

Bob Bauer suggests that this post by CCP Legal Director Reid Cox goes off course in its criticism of Fred Wertheimer, who has been trying to threaten folks - and get the Department of Justice to threaten folks - with criminal prosecution for alleged violations of campaign finance laws.  Here it is Mr. Bauer who has, in a rather unusual slip, gone "off course," and a brief response is necessary. 

The quick background is thus:  Fred Wertheimer is complaining that DOJ is not pursuing criminal actions against alleged violators of campaign finance law.  He bases this on a statement by Craig Donsanto, Director of the Election Crimes branch at the DOJ's Office of Public Integrity, that Justice would not pursue "knowing and willful" violations of campaign finance law for certain activity undertaken by 527 organizations. 

CCP was critical of Wertheimer, with Cox stating:

"Wertheimer does not want the criminal enforcement of the campaign finance laws as they were enacted by Congress and interpreted by the Supreme Court.  Instead, Wertheimer wants to see criminal investigations based on previous FEC enforcement actions that are not-and have never been-supported by either congressional legislation or court interpretation."

Bauer interprets this as CCP arguing, "that disputed rules can be disregarded because some, moved by constitutional scruples, don't like them."  If that were true, then of course CCP would have gone off course.  But that is not what CCP says. 

For more, click the headline... 

The criminal proclivities of Democracy 21

Published on September 25, 2008

An effort to chill independent issue advocacy efforts during the 2008 election by Democracy 21 relies on an unfounded reading of campaign finance law, according to a memo released by the Center for Competitive Politics.

Democracy 21 sent a letter to the U.S. Department of Justice last week suggesting that independent groups and their major donors should worry about the possibility of a criminal investigation before speaking out ahead of the upcoming election.

Democracy 21 President Fred Wertheimer specifically asked that U.S. Attorney General Michael Mukasey "make it clear to the public that knowing and willful violations of the campaign finance laws by 527 groups will be subject to potential Justice Department investigation and prosecution."

"But Wertheimer does not want the criminal enforcement of the campaign finance laws as they were enacted by Congress and interpreted by the Supreme Court," observed Reid Cox, Legal Director at the Center for Competitive Politics and author of the memo.  "Instead, Wertheimer wants to see criminal investigations based on previous FEC enforcement actions that are not-and have never been-supported by either congressional legislation or court interpretation."

"Criminal prosecutions based on independent issue advocacy are rare for good reason," Cox continued.  "Consistent legal precedent ensures protected space for independent issue speech.  There also remains much dispute that the FEC exceeded its authority in bringing those enforcement actions based on new and discredited regulations absent additional legislation from Congress or new decisions from the Supreme Court.

"One would hope that an independent non-profit like Democracy 21, which is ‘dedicated to making democracy work for all Americans,' would be less hostile to free speech," Cox concluded.

Cox's memo is the fifth in a series of analysis 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 regarding The Criminal Proclivities of Democracy 21 is available HERE and additional memos published as part of the Election 2008 Free Speech Project can be found HERE.

Big pharma veers to the left

Published on September 24, 2008
by Michael Schrimpf

File Under: Faulty Assumptions

Jeanne Cummings' story on a shift in the political giving of the pharmaceutical industry in Tuesday's Politico underscores an important point too often ignored in campaign finance debates: campaign contributions primarily follow ideology and do little to influence the way a legislator votes.

Cummings reports that Republican's are "being denied the lion’s share of the industry’s donations for the first time in six election cycles."

Why?

Click the headline to find out.

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