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

Thu Feb 7 07:58:28 PST 2013

I appreciate your thoughtful post, Mark.  I think there's a lot to be said for "public official exceptionalism," not just "electoral exceptionalism."  You note that "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."  I would add to your list important restrictions on gifts to public officials, anti-bribery laws, restrictions on outside employment, restrictions on profiting from information obtained in the exercise of official duties, etc..  I believe that these sorts of restrictions on public official involvement in financial transactions, together with election-specific fundraising restrictions, are vital to a well-functioning democracy.  Our campaign finance fundraising restrictions are supported by the governmental interest in preventing actual and apparent corruption of officeholders-the same governmental interest that supports the rest of the money-related ethics rules/restrictions listed above.

And that's really what I'm talking/writing about when it comes to President Obama and OFA.  You wrote that "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."  I haven't advocated "shutting down operations that are intended to organize the public on particular issue priorities."  This is a straw man.  My concern is with an officeholder raising big contributions for such an operation.  "Operations that are intended to organize the public on particular issue priorities" are free to raise and spend unlimited funds and such organizations have been around a long time doing so.  What's new here-and troubling to me-is an officeholder's direct involvement in this activity.  Why must such an organization involve an officeholder when doing so raises the threat of corruption?  If donors support the group's work, won't they give generously even if doing so won't result in access to an officeholder?

As for your assertion that restricting an officeholder's fundraising for such a group is "certainly not essential to making other campaign finance reforms work," I suppose that depends on the goal of the campaign finance reforms.  If the goal is for such campaign finance reforms to work in tandem with other officeholder financial activity restrictions like those listed above, in order to prevent actual and apparent corruption, then limiting officeholder fundraising for such a group does seem essential to me.  You note the "challenge is in finding the real borders of the election."  Your "electoral exceptionalism" theory exponentially increases the importance of doing so.  (By contrast, my theory of "public official exceptionalism" requires only that we identify those public officials whose financial activity we deem appropriate to regulate.)  If the President's operation of OFA isn't checked, I have no doubt that other Members of Congress will soon set up their own (c)(4)s for unlimited fundraising, with sharp lawyers ready to defend the activities as "intended to organize the public on particular issue priorities."  The borders will be pushed hard.  Existing campaign contribution limits will be severely undermined.  Those who oppose existing contribution limits will take great delight in this development.  The rest of us might reasonably be concerned by the precedent likely to be set by President Obama and OFA.

Best,

Paul Seamus Ryan
Senior Counsel
The Campaign Legal Center
215 E Street NE
Washington, DC 20002
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From: law-election-bounces at department-lists.uci.edu [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Mark Schmitt
Sent: Thursday, February 07, 2013 12:34 AM
To: law-election at uci.edu
Subject: Re: [EL] OFA: A Shot Heard 'round the World?

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
Ph. (202) 736-2200 ext. 214<tel:%28202%29%20736-2200%20ext.%20214>
Mobile Ph. (202) 262-7315<tel:%28202%29%20262-7315>
Fax (202) 736-2222<tel:%28202%29%20736-2222>
Website: http://www.campaignlegalcenter.org/
Blog: http://www.clcblog.org/
To sign up for the CLC Blog, visit: http://www.campaignlegalcenter.org/index.php?option=com_forme&fid=1&Itemid=63
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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
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