Fatigue and its Effects

Published on July 12, 2007
by Steve Hoersting

File Under: Contributions & Limits, Coordination, Political Parties

Marc Elias is tired.

Elias is, by all accounts, an excellent lawyer; a partner in the premier political-law compliance shop in the country.  Nonetheless, yesterday before the FEC he suggested that simplicity in hybrid ad regulation is at a premium, saying wearily (but with a smile), “If I have to tell my clients one more time that ‘It’s not that simple’…”.

Elias just wants a rule, and who could blame him.  Campaign finance law has been fully in flux since 2002.  So, Elias proposes that the FEC adopt a 50/50 split and be done of it, for “not even the [FEC’s] Audit staff could misapply 50/50.”  Elias knows who his clients are: national candidates and national party committees, organizations that would use a flat 50% allocation rule to continue working with each other, and as an easy “don’t blame me, blame the FEC” excuse for not working with other, lesser committees.  (Illinois Republican Party Counsel Don McGahn, for example, suggested that a flat 50% rule would keep a lot of good federal candidates from helping a lot of good State candidates and party committees).

Funny then that Elias passed recently on an opportunity to advocate for the simplest of all rules on hybrid ads: full repeal of the party-coordinated expenditure limit, a.k.a. the 441a(d) limit.  Rather, Elias defended the limit before the Senate Committee on Rules and Administration, necessarily conceding by implication (otherwise it would fail under the First Amendment), that his national party committee clients can somehow corrupt his candidate committee clients.  But those who know Elias don’t really believe he believes this.  Perhaps we may infer, then, that Elias’s clients see a comparative advantage in preserving 441a(d).

If true, Elias might say that the trimming of the rules of engagement for partisan advantage in our American political system didn’t begin with him, or even with his clients.

Perhaps it started in 2004, when Republican compliance lawyers, pushed by clients tired of the unfair advantage given outside groups by McCain-Feingold and its ratification in McConnell, pushed the FEC to regulate 527 organizations.

Or, perhaps it started when two party mavericks (read misfits) proposed sweeping changes in their names, with at least one sponsor dismayed at how thoroughly his party’s apparatus rose against him in his Presidential bid in 2000.

Or, perhaps it started in 1969 by a Democratic party and legislators surprised at the unblessed rise of Eugene McCarthy the year before.

Or, perhaps it started with “Pitchfork” Ben Tillman, a Southern, agrarian populist not keen on banks and corporations, the “money power” that primarily backed anti-segregationist Republican politicians in 1907; or even by John Adams and Federalists weary of barbs flung by Jefferson and his Republicans in 1798.

However it started, it is time for it to stop.

Are we at CCP shocked that politicians would game the system for apparent advantage, shocked there is instrumentalism in campaign finance regulation, or shocked to find that politics is war by other means?  No.  But even warfare abides by the rules of the Geneva and Hague Conventions.  In politics, there are some things that no working majorities should be able to.  This is very point of our First Amendment.

We now have a Chief Justice who has said “Enough is enough” in regulating campaign finance, and, perhaps, “enough is enough” is the sentiment that Mr. Elias meant to convey to the FEC.  But asking the FEC to diminish party committee flexibility with a flat 50% allocation rule, or suggesting to the Senate Rules Committee that there is no problem with policies that presume a corrupting potential between party committees and their candidates, will not bring matters to rest or reduce attorney fatigue.

Lawyers, like Elias on the Left and his Federal compliance counterparts on the Right, need to burn a bit more precious time with their clients to say, “It is not that simple.  But if you’d only talk to your colleagues, it could be.”

 

** Now, for more on the matter of enough is enough, and evidence that gaming the rules may never end:  Apparently two statehouses -- Oklahoma and Louisiana -- have banned the sale of T-shirts that say “Bush Lied, They Died,” with Arizona fast becoming the third.  According to this post, “The shirts include the names of hundreds of U.S. troops killed in Iraq in fine print, which legislators apparently find unseemly, and which they say makes the shirts commercial speech, instead of political speech, which the Supreme Court says enjoys more First Amendment protection.”

We'll wait patiently for Chief Justice Roberts to fix this one, as well -- if it must go that far.