[EL] Slate column on soft money/more news

Tue Oct 25 20:52:54 PDT 2011

Soft money, hard money, fully-regulated, not fully-regulated, it doesn't affect the extent to which it is regulated. The problem is that such labels often do more to obscure than to enlighten. For example, in the pre-McCain-Feingold era, what some people meant by "soft money" was only money given to political parties for use on things other than federal races. But others used the term for any money that was not subject to federal contribution and source limits, including money spent by independent 527 committees and 501(c)(4) organizations. 

Today the growing confusion is over the horrific but apparently favored term, "SuperPAC." Technically, a SuperPAC is subject to all the same reporting requirements as a PAC; but many people casually apply the term to 501(c)(4) organizations as well, which aren't even PACs, let alone Super ones, and then assert that they have no disclosure obligations. Thus, not surprisingly, many members of the public, and many journalists entrusted with reporting on money in politics, say things such as "... SuperPACs, which do not have to disclose their donors... "

Other times, people who ought to know better will say things such as "nobody knows who is paying for these ads," when of course the truth is that every political ad states who paid for it - what people mean to say is that "I don't know very much about the group paying for these ads - at least not as much as I'd like to know and I think you ought to want to know."  That is not an insignificant difference. 

Anyway, both sides use words and labels to their advantage, and that is hardly shocking. 

Rick's column that sparks this latest little semantic row is clearly written as much to alarm the public as to enlighten it. After all, Rick is a public intellectual, and this is an op-ed. Hence the invocation of undefined "soft money." Does he mean to speak only of disclosed money given to parties, as the term often meant in the past? No apparently not. In fact, he is including money raised and spent by PACs and subject to the FEC's disclosure regulations, which the term never previously meant, to my knowledge, anyway. Like Trevor, he seems to mean any large contribution, at least if not subject to a legal limit or source prohibition. Soft money, of course, is a longtime boogerman in the "reform" lexicon. That's why it can be "blamed" on Justice Kennedy (wait, there's blame? only if we assume that the term "soft money" inherently connotes something bad), and why the reader learns of "often secret contributions" (suggesting he's referring to 501(c)(4) organizations which have more limited disclosure obligations - although never entirely secret, since the (c)(4) has to disclose it's spending -but that wasn't usually what "soft money" meant, historically - although sometimes it was - and a (c)(4) is not technically a "SuperPAC."). Also, almost certainly many readers will take away that these are "secret contributions" directly to candidate campaigns, even if the article doesn't say that - see our Joe Trotter's recent post: http://www.campaignfreedom.org/blog/detail/representation-thru-occupation-occupy-dc-and-the-harsh-reality-of-politics-in-america. 

All this is an "end run" of the limits (of course the "end run" is a perfectly legal, appropriate play - it's not even a "trick" play, really, in football, but it is used here to suggest at least clever trickery). (Question: is a contribution of $5000 to a traditional PAC an "end run" of the $2400 limit on individual contributions? How about a $25,000 contribution to a political party?). We're told about "unlimited sums," and though I guess that's a fair enough description, even that phrase conjures up far more money than is likely to be the reality - for example, some reformers (not Rick) have suggested it could include the total of all assets or all profits of U.S. corporations, a patently absurd notion. But campaign spending won't be "unlimited" in this cycle, in fact we have pretty good predictions of what it will be, and by comparison to many things that is a relatively small amount. Meanwhile, the activities of independent groups are described as a "shadow campaign" even though they are highly visible and the topic of many news stories and op-eds. 

But having alarmed (as many good op-eds will seek to do), the piece does ultimately enlighten, setting forth the concerns of the reform community and explaining in clear, concise prose some difficult legal doctrine. I'm not sure that there is much to be gained by debating the semantics at the level of "fully regulated" versus just "regulated." Just so long as it's not called "unregulated money," which would be wrong by any definition.

I do think Rick gets one thing wrong, and that is thinking that Justice Kennedy's statement was intended as an empirical statement rather than a legal proposition based on some common-sense intuitions about the corrupting influence of different types of political activity and the language, structure, and purpose of the Constituion. (Kennedy's statement may also hinge on the definition of "corruption," with Rick holding a different view than the judge as to how one might define bribery (bad) vs. mere gratitude (the lifeblood of politics).  

It's sort of like saying all criminals are presumed innocent until proven guilty - that's not a statement of fact and really would make no sense considered as such: it is a legal proposition of constitutional law, and as such we value it quite highly, seeing the benefits as worth of the costs. We value the legal proposition even though in many cases it might be considered an absurd counterfactual and a considerable hindrance to "fighting crime" (a compelling government interest!).  Indeed, Kennedy's statement is even a bit (though less so) like Buckley's famous holding that the state has a compelling interest in regulating campaign spending: that's a legal proposition, not an empirical one.  Given that reformers have devoted considerable effort to trying to debunk or ignore the considerable evidence and substantial majority of studies finding that monetary contributions are not so influential as popular belief would have it, I'm not sure that they have the high ground here.

Reformers should not find that a reason for despair - legal propositions and understandings are subject to change. But I think history will judge Justice Kennedy and the majority to have gotten it right.

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 JBoppjr at aol.com
Sent: Tue 10/25/2011 7:11 PM
To: tpotter at capdale.com
Cc: law-election at uci.edu
Subject: Re: [EL] Slate column on soft money/more news

    Opps, so sorry for my comment, but (1) it was not my Advisory Opinion request, but the Dems, and (2) super pacs are fully regulated by the feds, they just do not have contribution limits under federal law, just like exploratory and draft committees.  The failure of federal law to impose a contribution limit does not mean that they are not regulated by federal law. Jim

In a message dated 10/25/2011 6:59:42 P.M. Eastern Daylight Time, tpotter at capdale.com writes:

	We've been around this ring before-ad nauseum-in connection with Jim's Advisory Opinion request last Summer, which made the same argument--and which the FEC rejected.  It is of course a misnomer to say that SuperPac funds are  "fully federally regulated" as they have no limitations as to size, and allow sources of funds not otherwise permitted in federal elections.

	Trevor Potter

	Sent from my iPad

	On Oct 25, 2011, at 5:34 PM, "JBoppjr at aol.com" <JBoppjr at aol.com> wrote:

		    Is all money some one doesn't like "soft money?"  Money contributed to super PACs is fully federally regulated so it is, in the slang, "hard money."  Jim Bopp

		In a message dated 10/25/2011 3:04:04 P.M. Eastern Daylight Time, rhasen at law.uci.edu writes:

			"Super-Soft Money: How Justice Kennedy paved the way for 'SuperPACS' and the return of soft money' <http://electionlawblog.org/?p=24611>  

			Posted on October 25, 2011 12:02 pm <http://electionlawblog.org/?p=24611>  by Rick Hasen <http://electionlawblog.org/?author=3>  

			I have written this Jurisprudence essay <http://slate.me/sun4y6>  for Slate. It begins:

				Soft money is coming back to national politics, and in a big way. And we can blame it all on a single sentence in Justice Anthony Kennedy's opinion in 2010's controversial Citizens United <http://www.supremecourt.gov/opinions/09pdf/08-205.pdf>  decision-a sentence that was unnecessary to resolve the case.

				In this election cycle, "superPACs <http://www.csmonitor.com/USA/Elections/2011/1007/Election-101-Five-basics-about-super-PACs-and-2012-campaign-money/What-is-a-super-PAC-and-how-is-it-different-from-an-ordinary-PAC> " will likely replace <http://www.nytimes.com/2011/08/28/us/politics/28donate.html?ref=politics>  political parties as a conduit <http://www.propublica.org/blog/item/super-pacs-propublicas-guide-to-the-new-world-of-campaign-finance>  for large, often secret contributions, allowing an end run around the $2,400 individual contribution limit and the bar on corporate and labor contributions to federal candidates.

			Another snippet:

				Now comes <http://electionlawblog.org/?p=24567>  the most audacious <http://www.rollcall.com/issues/57_43/Super-PACs-Multiply-Head-to-Hill-209545-1.html?pos=olobh>  argument in this series so far. If all PACs are Super-PACs, then the rules for these PACs should also apply to "leadership PACs." Leadership PACs are political committees that sitting members of Congress (and others) set up to allow them to make contributions to other candidates and spend money to support their election. It is a way for a member of Congress to build influence.

				Sen. Mike Lee's Leadership PAC, the Constitutional Conservatives Fund PAC, has just asked <http://saos.nictusa.com/aodocs/1188172.pdf>  the Federal Election Commission for permission to collect unlimited contributions from corporations, labor unions, and wealthy individuals for independent spending to elect other candidates. The SuperPAC's lawyers argue that there's no danger of corrupting these other candidates, because its spending to help them get elected will be independent of those candidates.

				Even if we suspend disbelief and agree on this point, the request ignores the greater danger: that the leader of the leadership PAC will become, or appear, corrupt. Corporations or labor unions (acting through other organizations to shield their identity from public view) could give unlimited sums to an elected official's leadership PAC, which could then be used for the official to yield influence with others.

				There's nothing to stop someone like Senate Minority Leader Mitch McConnell from effectively becoming the fundraising arm of the Republican Party, funneling all the money through his leadership PAC. The McCain-Feingold law barred political parties from collecting such unlimited "soft money" contributions, and the Supreme Court in 2003 upheld <http://www.law.cornell.edu/supct/html/02-1674.ZS.html>  that limit on the grounds that such unlimited fundraising by politicians could corrupt politicians or create the appearance of corruption.

			<share_save_171_16.png> <http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D24611&title=%E2%80%9CSuper-Soft%20Money%3A%20How%20Justice%20Kennedy%20paved%20the%20way%20for%20%E2%80%98SuperPACS%E2%80%99%20and%20the%20return%20of%20soft%20money%E2%80%99&description=> 
			Posted in campaign finance <http://electionlawblog.org/?cat=10>  | Comments Off 

			"State voter ID measure expected to see some changes in Senate" <http://electionlawblog.org/?p=24608>  

			Posted on October 25, 2011 7:53 am <http://electionlawblog.org/?p=24608>  by Rick Hasen <http://electionlawblog.org/?author=3>  

			News <http://www.post-gazette.com/pg/11295/1184048-454-0.stm>  from Pa.

			<share_save_171_16.png> <http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D24608&title=%E2%80%9CState%20voter%20ID%20measure%20expected%20to%20see%20some%20changes%20in%20Senate%E2%80%9D&description=> 
			Posted in election administration <http://electionlawblog.org/?cat=18> , voter id <http://electionlawblog.org/?cat=9>  | Comments Off 

			Give the People What They Want <http://electionlawblog.org/?p=24606>  

			Posted on October 25, 2011 7:52 am <http://electionlawblog.org/?p=24606>  by Rick Hasen <http://electionlawblog.org/?author=3>  

			Dean Logan will try <http://www.governing.com/blogs/view/LAs-Elections-Overhaul-Could-Be-a-Model.html>  in L.A. (h/t The Kinks <http://www.amazon.com/Give-People-What-They-Want/dp/B00000IM7P> )

			<share_save_171_16.png> <http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D24606&title=Give%20the%20People%20What%20They%20Want&description=> 
			Posted in election administration <http://electionlawblog.org/?cat=18>  | Comments Off 
			-- 
			Rick Hasen
			Professor of Law and Political Science
			UC Irvine School of Law
			401 E. Peltason Dr., Suite 1000
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