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

[Steve Hoersting]

It is surely not illegal for officeholders to control c4s, to associate
with citizens and engage in issue advocacy.

I think the fact that officeholders do control c4s for issue advocacy --
OFA being the most glaring example -- only clarifies why *McConnell's* 2003
soft money ban on officeholder-controlled accounts for issue advocacy is an
outlier.

Steve


On Fri, Feb 8, 2013 at 9:45 AM, <JBoppjr at aol.com> wrote:

> **
> 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****
>
> 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<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-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 <%28202%29%20736-2200%20ext.%20214>****
>
> Mobile Ph. (202) 262-7315****
>
> Fax (202) 736-2222****
>
> 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
> ****
>
> Follow us on Twitter @CampaignLegal <http://bit.ly/j8Q1bg> ****
>
> Become a fan on Facebook <http://on.fb.me/jroDv2>****
>
>  ****
>
> *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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>  ****
>
> --
> 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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-- 
Stephen M. Hoersting
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