Law & Policy in Campaign Finance Discourse

Published on June 11, 2007 01:44 PM
by Brad Smith

One of the more annoying things about public campaign finance discourse - and one reason, we think, that the public is so confused about the actual state of the law - is the tendency of the so-called "reform" community to define its views as "the law," and any competing views as "a failure to enforce the law."  This approach is on display in the latest posting from the Campaign Legal Center's Executive Director, Gerry Hebert.  Hebert's posts should be taken with a grain shaker of salt.

Hebert's immediate topic is the confirmation of Commissioner Hans von Spakovsky to a full term on the Commission (Spakovsky has been serving on a recess appointment).  Arguing that Spakovsky is not fit to serve, Hebert states flatly, "Here are some controversial incidents where Commissioner von Spakovsky voted not to enforce federal campaign finance restrictions."

Given such bold language, the reader can be forgiven for expecting much.  But in fact, little is delivered.  Example #1 from Mr. Hebert:

"In March of this year, Chairman Lenhard, along with Commissioners Weintraub and Walther published a statement arguing that the Bush-Cheney committee received $41 million in excess in-kind contributions from the RNC, violating both the contribution limit and the presidential spending limit.  Commissioner Weintraub published an even more strongly worded statement elaborating on the issue.  Commissioners von Spakovsky and Mason, however, voted against finding that a violation had occurred and published a statement explaining their position.

Well, there you have it.  Or maybe not.  It's not quite clear why we should presume that Commissioner Spakovsky (and Commissioner Mason) "refused to enforce the law."  It could be that there is a legitimate disagreement over what the law prohibits.  Mr. Hebert's reliance on the three Commissioners who would have found a violation is a bit odd, as we doubt it would take much effort to find numerous circumstances when the CLC has been critical of those Commissioners' ability to correctly interpret the law.  In fact, it takes no effort - earlier in the same post, Mr. Hebert criticizes all three of those Commissioners for failing to properly interpret the law and face political reality in supporting the Commission's rules on coordinated communications.  So, are these three the experts or not?  We understand that Mr. Hebert is a passionate individual, but not every disagreement means one's opponents are "refusing to enforce the law."

Hebert then presents the second  count of the indictment:

In April of this year, Commissioner von Spakovsky was alone in his vote to allow candidate campaign committees to off-load their fundraising costs to contributors, without subjecting such costs to the contribution limits.  Under von Spakovsky’s theory, a contributor could make the maximum $2,300 contribution to a candidate, plus pay the candidate’s fundraising costs associated with obtaining that contribution.  The Commission’s other four members (Lenhard, Weintraub, Walther and Mason) voted to deny the request by a corporate candidate vendor to charge contributors rather than candidates for the services they provide by contract to the candidates.  The matter was the Atlatl “Advisory Opinion” (2007-04).

First, note Mr. Hebert's slight of hand.  He knows - or at least ought to know - that originally Commissioner Mason voted with Commissioner von Spakovsky.  When the three Democrats on the Commission disagreed, Commissioner Mason switched his vote so that the Commission would provide a clear ruling to the requestor, rather than "deadlock" - a red herring that Mr. Hebert has been raising lately, including earlier in this post.  See here for comment on that.  Second, Mr. Hebert does not point out - and again, he either knows or ought to know this - that the Commission's General Counsel sent forth two drafts for the Commission to consider, one taking the approach favored by Commissioners Mason and Spakovsky, the other taking the approach favored by Commissioners Walther, Weintraub, and Chairman Lenhard.  Apparently, the Counsel felt that the issue was one of legitimate interpretation for the Commissioners to make.

And that's it - the promised "more controversial incidents" amount to two. 

We think that the public would be much better informed and the debate conducted on a more substantive and higher plane if the "reform" community - and CLC is not alone in this - would recognize that not every interpretation or policy it would adopt is "the law," and not every other interpretation is "failure to enforce the law." As Mr. Hebert knows, you win some and you lose some; people of good faith can disagree on what the law is.  That is why Mr. Hebert's former employer, the Civil Rights Division of DOJ sometimes loses cases; why the FEC sometimes lost cases during the tenure of Mr. Hebert's boss, CLC Chairman and former FEC Commissioner Trevor Potter; and why CLC has lost a number of battles in court, including several losses to the FEC itself.  In fact, sometime in the next two weeks the Supreme Court is expected to issue an opinion in FEC v. Wisconsin Right to Life, in which somehow the CLC finds itself allied with the scoflaw commissioners of the FEC.  We don't exactly have champagne on ice - we've really no idea who will win.  But if CLC ends up on the losing end of that one, we wonder if it will deem the FEC to have taken the position it did because of its refusal to obey the Constitution; or will accuse the justices of the Supreme Court of refusing to follow "the law;" or will it admit, finding itself on the losing side, that people of good faith might disagree?