Pernicious Political Committee Processes: A Reply to the Comments of Bob Bauer

Published on March 4, 2008 07:30 PM
by Steve Hoersting

File Under: Enforcement, Political Committees & 527s

Mr. Bauer has responded to my critique of the FEC’s political-committee enforcement process and promises another.  He sees the post as an attack on his consistency.  It is not.  The matters at stake are not that simple. 

I have not argued that Mr. Bauer is “inconsistent in his view of 527s.”  I have argued that Bauer is complying with a regulation he did his best to correct at a time when correcting it would have done some good.  I am saying that, having largely lost the policy battle at the Commission in formulating the political committee rulemaking, Bauer, like every practitioner, now has to conform to that rulemaking and use it affirmatively in defense of his clients.  I understand this dynamic well, have some experience with it, and find no fault in Bauer’s actions.

But the constitutional problems that Bauer once warned of remain—even if it is Bauer, friend to free speech, who must now use the flawed rulemaking to silence ALP.  The “years of legal battles that lie ahead” of ALP, as Bauer puts it, are precisely the constitutional problems I am highlighting.  The Commission’s broad regulatory definition of “contribution” and its searching and subjective processes for determining “major purpose” will frustrate ALP’s right to run ads touting issues associated with Sen. Hillary Clinton, or one day make it wish it had not run them.

First, let me address the update in the news.  If in calling ALP a “sock-puppet” Mr. Bauer is suggesting that ALP is coordinating its activities with the Hillary Clinton for President campaign committee, that is a separate matter, unrelated to my earlier post.  Coordinated electioneering communications are treated as contributions under the Act.  The question of whether electioneering communications that are genuine issue advocacy become contributions when coordinated was not addressed by the Court in WRTL II, and not addressed by me, and is not something readers here will have time for.  If, on the other hand, by calling ALP a “sock puppet” and a “sham” Bauer means to suggest that ALP is an illegitimate speaker too interested in the fate of the Clinton campaign, breaking the “rules of competition” with motives impure, well I can think of many similar “sock puppets” surrounding the 2004 Presidential campaign that CCP has spoken up for, and not on the basis of the “rules,” but on the basis of constitutional law.

Finally, before moving on, “Not a sham at all” is not at all what I say of ALP.  I have no illusions about who the actors are here.  But I say the question of “sham” is a question of intent.  And the question of intent has no place in speech jurisprudence.

Now to the substance of Bauer’s critique.

Bauer notes that “Corporations and unions cannot expressly advocate candidates’ election or defeat … and the Court in McConnell concluded that for purposes of the comprehensive corporate and spending prohibitions of the law, corporations and unions cannot evade the prohibition on ‘express advocacy’ by engaging in its ‘functional equivalent.’”  All of this is true.  Therefore, Bauer must misunderstand my point.  My point is that ALP was not engaging even in the functional equivalent of express advocacy, let alone express advocacy itself.  Therefore, ALP was engaging in “genuine issue advocacy” to which the corporate or union source prohibitions cannot apply.  ALP’s ad is protected by the Court in its holding in WRTL II and protected by the Commission in its rulemaking on WRTL II.  If Bauer believes that ALP’s ad is not issue advocacy protected by the Court or Commission that is a point on which we can disagree.  But given that ALP’s ad is outside the sphere of express advocacy, and outside the sphere of its functional equivalent, the ad cannot become “express advocacy” through the crucible of a “political-committee” investigation.  Reverse alchemy of that kind would debase protected speech.  No, there is no process to turn ALP’s genuine issue advocacy into regulated “expenditures” fast on the road to becoming a “political committee.”  If the opposite is the import of the FEC’s political-committee rulemaking, it is unconstitutional; a point made by many, and most recently by the Commission’s sitting Chairman.

Bauer sees in my post an attempt to “force[]” the holding of WRTL II “into the SpeechNow individual speech mold.”  What I say of WRTL II, however, applies to the Commission’s political-committee regulations.  I note that WRTL II holds that constitutional protection does not turn on a speaker’s subjective intent.  I wonder, therefore, what the Commission could accomplish by turning money given in response to a solicitation into regulated “contributions”—solely on the intent, written or otherwise, of the organization or the understanding of its donors, with no regard to the organization’s end product or output.  My point is constitutional.  What I say of independent organizations like SpeechNow.org, by the way, are two things, both of which are also constitutional.  First, that being a political committee is a burden, a fact established by the Court in MCFL, not WRTL II.  Second, that there is no compelling interest in forcing organizations like SpeechNow.org to register as a political committee and submit to that burden, no matter their major purpose.  The interests that pose the closest call are the informational interests described in Buckley, but those are met in full by more narrowly tailored reporting alternatives in the Act itself, short of registration.

Bauer next says the Court’s WRTL II decision was “within the boundaries of [the prohibition on] corporate and union spending ‘in connection with’ a federal election.  It simply does not answer the very different question about the application of the ‘purpose’ test … that determines when a group … has become a ‘political committee.’”  I noted that WRTL II holds that the process for distinguishing between issue advocacy and advocacy of elect or defeat “must be objective, focusing on the substance of the communication rather than the amorphous considerations of intent and effect.”  WRTL II.  Any inquiry “must entail minimal if any discovery, to allow parties to resolve disputes quickly without chilling speech through the threat of burdensome litigation.”  Id.  But isn’t burdensome litigation what Bauer has promised ALP?  And isn’t it true that the Commission’s investigative processes for “major purpose,” once described by Bauer himself as “complex and … open-ended,” merely shift litigation and burdensome discovery from the question of the ad’s nature to the nature of the organization running the ad?  Wouldn’t the Court, after working so hard in WRTL II to spare issue advocates like ALP a regulatory ordeal before speaking, have to look askance upon the Commission’s major-purpose determination process as-applied to ALP, and other speakers, if made to understand it?  In saying that WRTL II “simply does not answer the very different question about the application of the ‘purpose’ test,” Bauer seems to be saying that the WRTL II opinion is not for newly established organizations.  An organization must earn its regulatory calluses before it can engage in issue advocacy, and, until the organization is hardened by a thorough-going investigation of its purpose, it finds no refuge in WRTL II.  My point is only this: a reviewing court would not look favorably upon this argument, and ALP’s counsel seems to know it.

Bauer says the “FEC promulgated [its] rules, and these are not merely the rules of apparent validity until a court … says otherwise: these are rules of competition.”  This is not contract law we’re discussing, however, it is constitutional law.  Nor is ALP a rate-regulated utility bound by rules of competition.  Where did ALP sign-on to the strictures of the FEC’s rulemaking?  Has ALP foregone a benefit of some kind; some public subsidy the acceptance of which waives its right to the use of WRTL II and binds it to the questionable construct created by the Commission?  Bauer’s point merely assumes the matter in question: Is ALP a political committee?  The answer appears to be: ALP is prepared to find out.  ALP is running issue ads based on a Supreme Court opinion issued after the Commission promulgated its rules on political committees.  ALP Counsel has decided to proceed on the judgment that issue-advocacy organizations are not political committees.  Bauer sees this only as a decision to “disregard[] the law, because to break the law is competitively advantageous.”

Bauer restates the point or makes a related point in a manner with which I sympathize.  He notes that “Political actors are asked to shape their strategies around the rules, and the allocation of their resources [is] … determined by regulatory limitations, demands, prohibitions and allowances.”  I am aware of this dynamic, I really am.  I have some experience here.  I understand that “Restraint is a thing of Beauty;” I understand that an eleventh-hour change in the rules is devastating to political actors and compliance lawyers who must rely on them.  What’s more, counsel can hardly advise clients to proceed into illegal activities just because the opponents appear to be doing so.  But let me suggest to Mr. Bauer that the Supreme Court has "turn[ed] [him] up in [his] nest with the plough.”  Even if Bauer gets his way, and the Commission lays bare ALP’s operations in a full-blown search for “major purpose,” the Commission will make its findings all-the-while knowing that it is hamstringing an organization whose communications are protected by WRTL II, and that reviewing courts are watching.  This is not, I believe, a dynamic under which the Commission will operate confidently.

If it is Mr. Bauer’s position that ALP faces jeopardy, he may continue to make the most of it.  No doubt ALP’s counsel is listening.  And to be clear, I agree that, for the foreseeable future, ALP faces an intolerable investigation with little hope of mercy before the matter reaches the courts, or, at a minimum, at least until the matter reaches a quorum of voting Commissioners.  But it is the job of CCP to show why that jeopardy should never have existed in the first place and to point out what future courts can do about intolerable investigations—a remedy I have not taken time to restate here.  This brings me to a closing point:

The question I wanted answered is, “Of What Use is Major Purpose Absent Corruption?”  I understand, however, that others are busy and there are more important things happening elsewhere.  I can wait for a time when schedules ease, after the inauguration of a new President and the seating of a new Congress, for the discussion and the answer.

(Mr. Bauer may write a second reply to my first post.  If he does so, I will attempt another answer.)