[EL] OFA: A Shot Heard 'round the World?

[Mark Schmitt]

There's a lot to be said for "electoral exceptionalism." Money and 
economic inequality influence politics and policy outcomes in millions 
of ways, but elections are a protected space in which the potential for 
corruption is much higher (since elections have a direct, 
winner-take-all effect on who holds power) and in which we necessarily 
impose some rules in the interest of orderly and balanced participation. 
(No campaigning within 75 feet of a polling place, for example, is a 
restriction on expression but one that we generally accept as common 
sense and in the interest of an orderly, fair election.) Elections are a 
structured process, and the rules governing them will always be, and 
should be, somewhat different from the rules governing more freewheeling 
debate about policies and ideas.

The challenge is in finding the real borders of the election. Sometimes 
ads that say "call your member of Congress" really mean, "call your 
member of Congress." And sometimes, as we know, they mean, "vote against 
that tax-raising jerk," and should be considered a de facto campaign 
contribution. (In the case of gun safety, the example you used in an 
earlier piece, Steve, "Call your member of Congress" 20 months before 
the next election, probably means exactly that, because elected 
officials are unsure where their constituents stand right now on that 
issue.) Getting that line right can be a challenge, but the complexity 
and occasional idiosyncratic outcome doesn't invalidate the basic 
distinction.

It's not great to have elected officials involved in raising money to 
try to help them achieve their substantive goals, which may create a 
relationship of dependency similar to that of campaign contributions. 
But it's not the same kind of problem, and not as pervasive. Paul may 
well be right that the Court would accept some regulation of public 
officials raising money for such organizations -- there are all sorts of 
regulations on the time and activity of public officials, as opposed to 
ordinary citizens, such as revolving-door regulations on later 
employment, financial disclosure requirements, public meetings laws, 
etc. But as a matter of policy, shutting down operations that are 
intended to organize the public on particular issue priorities, but 
don't intervene in elections, doesn't seem to me like a very high 
priority. And it's certainly not essential to making other campaign 
finance reforms work.

Another interesting dimension of this is the question of when an 
organization is considered to be aligned with a political party, or 
pursuing the aims of that party. Twenty years ago, for example, an 
environmental organization wouldn't have been seen as "aligned" with the 
Democratic Party; now it might be. The same is true on guns or health 
reform or any number of issues. It seems difficult to develop a robust 
legal theory about when an organization is "partisan" when an issue can 
go from bipartisan to partisan, or vice versa, in days. Organizing to 
push "the president's agenda" might be partisan on some issues, but not 
on immigration, probably.



On 2/6/2013 1:04 PM, Doug Hess wrote:
> Not sure I can agree on the "no matter to what ends" language (by 
> agree, I mean thinking through my own views, not what this or that 
> court has said). Surely there is some line, where if the fundraiser is 
> not taking money for their own office or own campaign, they are 
> raising money for mobilization and public organizing that is not 
> candidate focused. I guess the area in between is when they are 
> raising money that then supports another candidate. I.e., three 
> scenarios:
>
> 1) donor --> official --> official's election campaign
> 2) donor --> official --> another person's election campaign
> 3) donor --> official --> organizing the public on issues
>
> The first seems bad, the second I'd be concerned about as it quickly 
> could equal the first, but the third one doesn't strike me as 
> necessarily corrupt or appearing corrupt (although it could need 
> regulating to keep it "clean") . Presumably wealthy donors, in the 
> end, have plenty of ways of "buying off" the fundraiser or 
> organization's board/staff through other donations nowadays.
>
> Doug
>
>
> On Wed, Feb 6, 2013 at 12:01 PM, Paul Ryan 
> <PRyan at campaignlegalcenter.org <mailto:PRyan at campaignlegalcenter.org>> 
> wrote:
>
>     Doug,
>
>     You wonder, in your email, whether President Obama plans to help
>     raise funds for OFA while in office.  The President "announced the
>     relaunch of his remaining campaign apparatus as a new tax-exempt
>     group called Organizing for Action . . . ." 
>     (http://www.politico.com/story/2013/01/obama-campaign-to-relaunch-as-tax-exempt-group-86375.html)
>     If press accounts are accurate, the President and his political
>     team will be very involved in all aspects of running OFA and this
>     presumably includes fundraising for the group.
>
>     My concern/objection is that an officeholder will be soliciting
>     very large (i.e., unlimited) contributions from unlimited sources
>     (e.g., individuals, corporations, unions, foreign
>     nationals---quite possibly with business before the officeholder)
>     and that the law doesn't even require public disclosure of these
>     contributions/sources.   (Though OFA is apparently planning to
>     voluntarily disclose some degree of information about its donors,
>     other officeholders may emulate this strategy without the
>     voluntary disclosure.)
>
>     As I explained in my email to the listserv yesterday, the Supreme
>     Court has recognized, in upholding limits on
>     candidate/officeholder fundraising and related disclosure
>     requirements, that unlimited officeholder fundraising gives rise
>     to "corruption or the appearance of corruption" "regardless of the
>     ends to which those funds are ultimately put."  I agree with the
>     Court on this point.  In my view, officeholder fundraising for a
>     501(c)(4) dedicated to promoting that officeholder's political
>     agenda gives rise to precisely the same threat of corruption as
>     officeholder fundraising for his/her reelection campaign. The
>     threat of corruption exists "regardless of the ends to which those
>     funds are ultimately put."
>
>     Best,
>
>     Paul Seamus Ryan
>
>     Senior Counsel
>
>     The Campaign Legal Center
>
>     215 E Street NE
>
>     Washington, DC 20002
>
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>
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>
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>     *From:*law-election-bounces at department-lists.uci.edu
>     <mailto:law-election-bounces at department-lists.uci.edu>
>     [mailto:law-election-bounces at department-lists.uci.edu
>     <mailto:law-election-bounces at department-lists.uci.edu>] *On Behalf
>     Of *Doug Hess
>     *Sent:* Wednesday, February 06, 2013 10:54 AM
>     *To:* law-election at department-lists.uci.edu
>     <mailto:law-election at department-lists.uci.edu>
>     *Subject:* [EL] OFA: A Shot Heard 'round the World?
>
>     I don't understand the objection to an organization (the new OFA)
>     that promotes mobilization around community and national issues
>     receiving donations. If the members don't like who funds the
>     group, they won't fund it (i.e., donate or join it) either.
>
>     I guess for appearances, Obama's involvement raises questions, but
>     there are ways to limit that involvement in reality and in
>     appearance. It will be interesting to see if he plans to help
>     raise funds for it while in office. If it endorses, then things
>     are trickier, I guess. But a 501(c)4 organization (I think that is
>     what it is) can only inform members of its endorsement, right? And
>     it would be odd for a sitting president to endorse many people in
>     a primary fight in a systematic way (FDR learned that) and even
>     odder that he would endorse members of the opposite party. So,
>     what is the concern? That people may organize and a president
>     encourage it?
>
>
>     On another topic: It is interesting to note that an extra-party
>     organization is needed to do more creative political organizing in
>     American politics.
>
>     -Doug
>
>
>
>
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-- 
Mark Schmitt
Senior Fellow, The Roosevelt Institute <http://www.nextnewdeal.net/>
202/246-2350
gchat or Skype: schmitt.mark twitter: mschmitt9

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