[EL] Check out Study shows who breaks campaign laws-ThePuebloChieftai...

[Trevor Potter]

I stopped to check my email on a Sunday afternoon, and see my name taken in vain. I'll try one more time to state my position and then give it a break, and go back to August.
 
First, I have now advised political actors for 25 years, and I find that the need for a lawyer varies entirely on how large the political operation is. Presidential candidates need dozens of lawyers--largely for work unrelated to the federal campaign finance laws, but rather derived from the fact that they are a business with hundreds of millions of dollars flowing through them, hundreds of employees, and a huge variety of legal issues, each with a very short fuse. By contrast, the FEC website contains the forms and sufficient guidance for most "average citizens" to create their own PACs without help of a lawyer-- as I frequently advise people who ask if I can help them form a PAC.
 
The point I was trying to make, though, is that large issues-oriented PACs have historically been the vehicle through which non-plutocrats could band together and wield political power. Starting with the CIO and the labor movement, PACs spread to be the vehicles of gun rights and gun control groups, pro-life and pro-choice groups, environmental and anti ERA activists, retirees and college students,  and many others who found political power was enhanced by common action. These large PACS raised ad spent millions, so they had need of lawyers (see preceding paragraph). This is not a bad thing--these large organizations gave average citizens a voice they would not have had on their own, or through a tiny political committee they established.
 
Another characteristic of this system is that "plutocrats" and for-profit corporations did not dominate the --the former because they usually do not like to put their own name on independent expenditures, and their contributions to others for overtly political purposes where limited by law, and corporations because for many years they had been prohibited from using shareholder funds in their treasuries for political expenditures. So, from 1971 and the Nixon re-election campaign, until NOW, we have not seen secret million dollar contributions in Presidential elections, or corporate funds in those elections. For many years, Presidential candidates participated in the public funding systems and small contributors were valued because they resulted in greater levels of matching funds in the primaries. With the exception of Ross Perot's ill-fated run, no one cared about whether Mitt Romney had $240 million in his Trust, or that Perry or Obama had a stable of billionaire supporters in their home states ready to spend millions. Instead, candidates like Ronald Reagan got their nominations over the opposition of the big money players in their parties, and won their general elections without being indebted to huge pseudo "independent " campaigns on their behalf (whether through 527s, c4s, c6s, SuperPacs, or other similar vehicles for huge, often undisclosed, contributions). That is the change that the current Supreme Court has given us, and I do not believe it has empowered the "average citizen" more than before. 
 
 
 

________________________________

From: law-election-bounces at department-lists.uci.edu on behalf of Smith, Brad
Sent: Sun 8/14/2011 1:36 PM
To: law-election at department-lists.uci.edu
Subject: Re: [EL] Check out Study shows who breaks campaign laws-ThePuebloChieftai...


Let 'em eat cake. 
 
Doug's argument seems dangerously close to arguing, "hey, these small time spenders don't matter anyway, so who cares."  Which, is basically, Trevor's position, as I have come to understand it. It's like anti-trust, man, hire an attorney. Meanwhile, they lecture others about "plutocrats" taking over the system.
 
I think that one of the most devastating blows to the Clinton health care bill, way back in '93-'94, came when Hillary Clinton was confronted with a question about the bill's impact on small business, and responded with something along the lines of, "I can't be responsible for every undercapitalized entrepreneur in the country." 
 
Doug then says, essentially, "and besides, these small timers are probably just making it up when they talk about the problems of dealing with regulation," and in doing so basically suggests that those of us who have worked with people in this area are also just making it up.
 
This strikes me as a purposely blind position, and one that takes a narrow view of the potential richness of political life. It is exactly the sort of top-down, "this is a game for big spenders" approach that they purport to abhore. 
 
It also sets up an interetsing dichotomy: we can't prove, really, corruption from campaign contributions, so we must assume it exist. We can't prove, really, how many people are truly discouraged from participating due to regulation, so we must assume they do not exist.
 
In the end, though, it ought to be really simple: it should not be against the law for Americans to engage in political activity. Americans should not be required to register with their government before spending a few thousand bucks (or even a few hundred) on political activity, and they should not generally be required to report their political activity to the government.
 
But some see the difficulties of the people, and say "let them eat cake."
 
Bradley A. Smith
Josiah H. Blackmore II/Shirley M. Nault Designated Professor of Law
Capital University Law School
303 E. Broad St.
Columbus, OH 43215
(614) 236-6317
http://www.law.capital.edu/Faculty/Bios/bsmith.asp

________________________________

From: law-election-bounces at department-lists.uci.edu on behalf of Doug Hess
Sent: Sun 8/14/2011 12:41 PM
To: law-election at department-lists.uci.edu
Subject: Re: [EL] Check out Study shows who breaks campaign laws -ThePuebloChieftai...


 
I wonder how much money these "average persons" (since somebody put "the people" in scare quotes I figure "average person" should also be pointed out as a bit of a fiction, too) can muster without being organized enough to file papers and consult with an attorney now and then. Moreover, I wonder if some of the groups paying fines actually decided that it just was not a big deal to be better organized. I assume the penalty isn't criminal and the fines come out of the general coffers of what your raised. Right? 
 
Plenty of institutions take on small to moderate fines rather then get their act in gear or follow a regulation that is thorny for them. This may not seem completely rational, but in a hectic environment it might be more sensible than it appears. Do the fines discourage them from operating next year? (In fact, I recall the head of a PAC here in DC once saying to staff  who were worried about what behavior crossed the line: "Remember the penalties are only civil, not criminal!" I assume that is true?)
 
Besides, that people can only make a PAC work by hiring professionals for X hours a year only tells me that if they cannot get either well enough organized or enough money to administer it at a minimum level, then the amount they will raise or spend is very likely going to be trifling anyway. Might as well just spend that on your own direct donations or writing letters to the editor. 
 
In the end, a more serious empirical question might be: What does it cost to run the legal and administrative side of a smallish PAC? 
 
My condo association handles the fees, assets, and management of a medium sized building (25 units) with maybe a budget of $1,500 a month for a management firm that takes care of all the accounting for us (plus a lot else) and we spend maybe $3,000 to $5,000, I don't recall, for auditors each year. I assume more complex filings takes the costs higher, but the other fees could be lower, and I can't imagine the budget of a PAC being more complex than that of a condo building. 
 
Having said that, I could see a need for some elections for small informal PAC-like entities that have a lower threshold of regulations. I think here in DC there is such a thing for people running campaign funds (not PACs) for neighborhood commissioners.  The paperwork and requirements are less, but there is a cap (or there was in the 1990s). 
 
P.S. The anecdote about people getting excited and then not carrying through could be due to any number of things, not just regulations. Again....just how much money did they want to raise/spend? What percent would need to be spent on adhering to regs?
 
-Doug 
 
 
From: JBoppjr at aol.com
To: tpotter at capdale.com, BSmith at law.capital.edu
Date: Thu, 11 Aug 2011 17:03:29 EDT
Subject: Re: [EL] Check out Study shows who breaks campaign laws - ThePuebloChieftai...

But, Trevor, you did not respond to two points (1) that PACs are difficult to administer and require, as you say, "sophisticated" advice.  As a result, they must be HUGE and 'sophisticaed operations," which precludes the average person or group of persons to get together on their own to do this.  Result, fatcat corporations can afford to have them, but  the average person cannot.  (2) This talk about PACs is irrelevant.  I was comparing your average Stephan Colbert to your average Joe Six Pack.  Colbert has the money, he just spends it, and he files a one page FEC report. Two Joe Blows have to set up a PAC.  Much different and much more burdensome. Game, set, match to your fatcat clients, Trevor.  Jim Bopp
 
In a message dated 8/11/2011 4:51:54 P.M. Eastern Daylight Time, tpotter at capdale.com writes:

My point was, and remains, that for years there were HUGE Pacs  in existence that played important roles in politics-and they did so through aggregating the funds of small donors (in the case of labor unions and the NRA and Pro-Life groups usually REALLY small average donations). Political parties and their direct mail bases had the same effect. These groups were very sophisticated operations which provided an effective voice for their membership of "average people." So to say that CU somehow allowed average people to speak for the first time ignores historical record and turns reality on its head-CU allows corporations to participate directly in elections for the first time: individuals could already do that-on their own if billionaires like Ross Perot, by banding together with others if  average citizens. 

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