[EL] OFA: A Shot Heard 'round the World?
Sean Parnell
sean at impactpolicymanagement.com
Thu Feb 7 10:39:04 PST 2013
I'm not sure about 501c3 and c4 groups that are used by officeholders to
keep family and campaign staff employed, but I do know it's pretty common
for officeholders to sign letters on behalf of a wide variety of c3 and c4
groups urging people to donate to them, and there is typically not much of a
connection between the officeholder and the entity other than they like the
group's work. Some of these groups are fairly ideological - lots of
Congressman have signed letters on behalf of Heritage over the years, for
example - while others are not, such as the charity that sent oral surgeons
to Central America to do cleft lip and cleft palate surgery on children that
the Congressman I used to work for signed a letter for (actually, used his
fundraising list to send it to as well).
I only throw this out there because it seems worth recognizing these things
in a discussion of officeholders raising funds for c3 and c4 groups.
Sean Parnell
President
Impact Policy Management, LLC
6411 Caleb Court
Alexandria, VA 22315
571-289-1374 (c)
sean at impactpolicymanagement.com
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 11:59 AM
To: Paul Ryan; law-election at uci.edu
Subject: Re: [EL] OFA: A Shot Heard 'round the World?
Good points, Paul, and you're right that the idea of "shutting down" OFA is
a bit of a straw-man. I think we agree that the issues around office-holder
fundraising for OFA or similar organizations are in a somewhat different
zone, having to do with activities of elected officials, than the zone of
campaign-finance regulation that Steve connects them to.
I believe, by the way, that a lot of elected officials already have
501(c)4's and 501(c)3's that they raise money for, and often they use them
not so much for issue advocacy as to keep their spouses, family members, and
campaign staffers employed, and as a platform for fundraising. Rep. Steve
Buyer's golf charity was, I suspect, the tip of a very big iceberg.
On 2/7/2013 10:58 AM, Paul Ryan wrote:
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
Ph. (202) 736-2200 ext. 214
Mobile Ph. (202) 262-7315
Fax (202) 736-2222
Website: http://www.campaignlegalcenter.org/
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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>
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-exe
mpt-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
<http://www.campaignlegalcenter.org/index.php?option=com_forme&fid=1&Itemid=
63> &fid=1&Itemid=63
Follow us on Twitter @CampaignLegal <http://bit.ly/j8Q1bg>
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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 Doug
Hess
Sent: Wednesday, February 06, 2013 10:54 AM
To: 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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