[EL] OFA: A Shot Heard 'round the World?
JBoppjr at aol.com
JBoppjr at aol.com
Fri Feb 8 06:45:40 PST 2013
Sean is right.
In addition, it is already quite common and clearly legal for Members of
Congress to work with advocacy groups regarding grass roots lobbying in favor
of legislation which the Congressman favors or opposes.
It is also not unprecedented for a Presidential campaign to morph into an
advocacy group -- Pat Robertson's campaign in 1988 became the basis for the
Christian Coalition.
So I see nothing remarkable or illegal about OFA, aside from the remarkable
hypocrisy of it all.
But even the hypocrisy of it is not that remarkable. The campaign finance
"reform" industry works with Members of Congress on their grass roots
lobbying and also the groups benefit from the fundraising that some
Congressmen do for them. And these groups also provide direct benefits to various
Congressmen -- featuring them and praising them in public relations campaigns
and paying for their litigation expenses.
And of course they accept unlimited corporate contributions of "dark
money," too, to fund it all. Jim Bopp
In a message dated 2/7/2013 1:45:37 P.M. Eastern Standard Time,
sean at impactpolicymanagement.com writes:
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
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(http://www.campaignlegalcenter.org/)
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From: _law-election-bounces at department-lists.uci.edu_
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[_mailto: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_ (mailto: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_
(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:(202)%20736-2200%20ext.%20214)
Mobile Ph. _(202) 262-7315_ (tel:(202)%20262-7315)
Fax _(202) 736-2222_ (tel:(202)%20736-2222)
Website: _http://www.campaignlegalcenter.org/_
(http://www.campaignlegalcenter.org/)
Blog: _http://www.clcblog.org/_ (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_
(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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