[EL] Technology to facilitate compliance

[Larry Levine]

I am involved right now in an issue concerning the FEC. It is the same issue we face every several years when an account is audited by someone new. I won’t go into all the details. Let’s just say it is in an area in which no law or written regulations exist. Filing has been done for some 30 years under a memo of agreement negotiated with FEC staff. Problem comes when they hire new staff. Then we have the potential costs of legal representation to respond to the letter of non-compliance we receive and educate a new staff person.

Larry

 

From: law-election-bounces at department-lists.uci.edu [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of bzall at aol.com
Sent: Sunday, August 14, 2011 5:29 PM
To: VOLOKH at law.ucla.edu; law-election at department-lists.uci.edu
Subject: Re: [EL] Technology to facilitate compliance

 

There are several classes of burdens on small and un-represented political actors: 

 

1) psychological. For most Americans, having a run-in with a highly-complex regulatory agencies with the power to fine and put you in jail is frightening. Hence the generalized fear of dealing with the IRS. The same is true for anyone who has dealt with the California FPPC, the FEC, or any of the myriad state campaign finance agencies. That, in and of itself, is a deterrent.

 

2) interpretational. As you know, Eugene, I have practiced in this area longer than Trevor Potter, having started in the first election under FECA, and continuing to this day. I have counseled numerous clients, large and small, and run my own PACs. I have filed reports, petitions and lawsuits. I have engaged in independent expenditures and direct contributions. And I am still mystified by the decisions of the various regulatory agencies about questions which seem simple to me, but are decided on incomprehensible grounds. For example, I have a pending AOR right now on the question of whether tax-exempt issue advocacy deserves LESS favorable treatment under a state campaign finance law than does political advocacy; in other words, the law criminalizes (misdemeanor, but still) grassroots lobbying in one relatively-straightforward instance, but permits the same if it were intended to influence an election. It is that sort of odd, nuanced interpretation of speech regulation which we are asking laypeople to judge. If I, an experienced attorney, can't intuit these, how can we ask Mom and Pop Bo Peep to do so? 

 

3) registration and reportage: Like it or not, even a simple on-line form is daunting to some. Real-term example: the IRS (which, btw, has a 3-tiered reporting structure, with a full Form 990 for larger groups, a 990-EZ for smaller groups, and an on-line "postcard" 990-N for the smallest organizations) tried for years to get the smallest organizations to file a simple on-line 990-N. It failed, in part because some of the organizations were defunct, but also because some just couldn't deal with that on-line registration thing. Now they are dealing with a re-instatement program for those organizations that couldn't quite get there in three years. And as for the actual burdens, I refer you to the quote I took from Citizens United for Justice Kennedy's analysis of the burdens on even sophisticated corporations. If you're going to judge burdens, you at least ought to look at what the robed Nine have to say, since it's likely that will be a benchmark. 

    And as for FEC-File being an answer, have you actually tried it? FEC-File, is a 1980's level program which is maddening non-intuitive ("now WHICH button do I use to add a new receipt? And WHY can't it import my .csv or similar file?"). So if you were writing a program, would you use "insert" to add a new piece of data? And would you make it compatible with, say, Excel, which is used by a significant percentage of some less-sophisticated potential filers, or maybe Quickbooks? And would you require that certain, text-based mandatory filings be done in a non-intuitive supplemental format that doesn't permit editing? And, as one who had hundreds of small reportable donors whose files had to be kept in FEC-File for years, but whose "massive" file choked the program into quiescence upon loading, would you think that perhaps the government-provided software ought to be scaleable, especially if you knew that the competing private sector software was enormously expensive? After all, if you can migrate VC onto WordPress using some consultants, wouldn't you think a government agency could produce something better than the much-maligned Dreck-File? 

 

There are, of course, many other burdens, but I guess most of those are of a piece with the above. 

Mitigation by automation will handle some of these, but not all, as the IRS example shows. Mitigation of psychological suppression, for example, is unlikely to be available by mere automation. Mitigation of interpretational questions, I suppose, could be helped by a Wiki or something similar, but it's never going to go away. 

 

 

 

Barnaby Zall 
Of Counsel 

Please Note Our New Name
Weinberg, Jacobs & Tolani, LLP 
11300 Rockville Pike, Suite 1200 
Rockville, MD 20852 
301-231-6943 (direct dial) 
 <mailto:bzall at aol.com> bzall at aol.com 



_____________________________________________________________ 
U.S. Treasury Circular 230 Notice 

Any U.S. federal tax advice included in this communication (including 
any attachments) was not intended or written to be used, and cannot be 
used, for the purpose of (i) avoiding U.S. federal tax-related penalties 
or (ii) promoting, marketing or recommending to another party any 
tax-related matter addressed herein. 
_____________________________________________________________

 

-----Original Message-----
From: Volokh, Eugene <VOLOKH at law.ucla.edu>
To: law-election at department-lists.uci.edu <law-election at department-lists.uci.edu>
Sent: Sun, Aug 14, 2011 7:41 pm
Subject: Re: [EL] Technology to facilitate compliance

                So – and again a naïve question – what, practically is the burden of compliance (especially as to disclosure) for small campaigns?  I’m not doubting that there is such a burden; I just want a better sense of what it is, and whether it can be mitigated.

 

                Eugene

 

-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20110814/df24ebef/attachment.html>