[EL] ELB News and Commentary 10/16/11

[Lowenstein, Daniel]

     The Weekly Standard article is less clear than it could have been, probably because the author (Mark Hemingway) was trying to make a general point but also emphasizing heavily the topical application, the effect on the Perry campaign.

      As I understand the article, the main point, Perry aside, is that the federal rules create a significant disadvantage for a candidate for federal office who presently holds a state office (including, presumably, any governor) with authority over state investments.  I believe this is an instance of an even more general problem, which is the asymmetries often created by federal regulation of election campaigns, whether direct regulation as in the case of the FECA or, as here, indirect regulation as in the case of the securities laws.  Another example is that the restrictions on fundraising by federal candidates and officeholders can create an important disadvantage in a ballot measure campaign if one side is supported by federal candidates and officeholders.

       In most if not all cases, there is an easily understood logic that leads to the asymmetric effects.  Those effects are nevertheless disturbing.  Typically, we think of all contestants in an election campaign being affected by the same rules.  As in any competition, the rules may work to the tactical advantage of one side or the other.  But in the asymmetric situations I am referring to, the rules themselves are different because of the federal connection of individuals on one side or the other.  It is not obvious what the solution is, but there ought to be a fairly strong presumption against legislation having such asymmetric effects if it is at all possible to avoid them.

             Best,

             Daniel H. Lowenstein
             Director, Center for the Liberal Arts and Free Institutions (CLAFI)
             UCLA Law School
             405 Hilgard
             Los Angeles, California 90095-1476
             310-825-5148