[EL] “Democracy 21/ACS Issue Brief: A New Federal Agency is Needed to Enforce Campaign Finance Laws”

[Steve Klein]

Greetings all,

I pose this question to campaign finance reformers of all stripes: even
leaving aside the First Amendment, is there not a bigger problem with
overzealous enforcement of campaign finance law than there is with a lack
of enforcement? Does Blackstone’s
principle<http://en.wikipedia.org/wiki/Blackstone's_formulation>have
any place in campaign finance law?

I ask this in light of Fred Wertheimer and Don Simon’s new
paper<http://www.democracy21.org/money-in-politics/press-releases-money-in-politics/democracy-21-issue-brief-a-new-federal-agency-is-needed-to-enforce-campaign-finance-laws/>
. Without a single reference to the First Amendment, it’s easy to
understand the approach of Democracy 21, et al. to campaign finance law (*more
power <http://www.youtube.com/watch?v=i_peg19d0Mk>*), but I digress. Again,
free speech aside, there’s a vague reference in the paper that drives home
why I believe ten (heck, hundreds) of guilty politicos should go free than
one innocent be penalized.

I focus on page 15, in section III of the paper. It mentions two cases
where the GOP commissioners voted to close actions where groups had already
agreed to a conciliation agreement with the FEC. It says this of the second
case:

In the second case, involving a Democratic congressional candidate, the
candidate's campaign committee entered into a conciliation agreement with
the FEC professional staff regarding the committee's failure to provide
full disclosure information for nearly 90 percent of its contributors who
gave more than $200. The candidate's committee sent in a check to pay for
the civil penalty imposed by the agreement. Despite the "plea bargain"
agreement, and the support of the three Democratic commissioners for
pursuing an enforcement action against the Democratic candidate, the three
Republican commissioners rejected the conciliation agreement and instead
killed the enforcement action.

The paper does not cite, much less name, this enforcement action, and
instead cites to a previous writing by Wertheimer, a blog post from May
2009 that also neglected to name the matter. This blog post cites a BNA
report from January, 2009, which I cannot find (perhaps given BNA’s
paywall). (Regarding this dead trail, I’d say “c’mon, guys, it’s just
disclosure,” but I’ve been saying that too much
lately<http://wyliberty.org/feature/cmon-its-just-disclosure-again/>.
At the very least, I think we should be concerned about “dark footnotes.”)

However, the first case discussed regarding this point in the paper is the
November Fund case, which was closed on October 21,
2008<http://eqs.nictusa.com/eqsdocsMUR/28044222151.pdf>
. So, I believe the “second case, involving a Democratic congressional
candidate” who had entered into the conciliation agreement was decided that
same day, MUR 5957 <http://eqs.nictusa.com/eqsdocsMUR/28044220539.pdf>,
Committee to Elect Sekhon for Congress. Assuming this is the case in
question, there’s far more to be said than this paper’s one paragraph.

It was not until mid-2009 that either the Democrat or Republican
commissioners released their statements of reasons regarding this vote, but
these SORs are among perhaps the most glaring evidence that the GOP
commissioners’ stance is often far beyond simply a “Failure to Enforce.” The
Sekhon GOP SOR <http://eqs.nictusa.com/eqsdocsMUR/29044243959.pdf> reveals
the plight of a grassroots candidate, whose committee was mired in
“disclosure”regulations and then the FEC’s enforcement process. *The
“failure to provide full disclosure”amounted to incomplete reporting of
contributors’ employment information* (“our dark money will blot out the
sun,” indeed). Most tellingly, the SOR speaks of how well-established
incumbents fare versus inexperienced grassroots groups. It also lambastes
the selective use of “best efforts” policies, etc., etc.

It’s well-worth the read. (And here’s the Dem
SOR<http://eqs.nictusa.com/eqsdocsMUR/29044242536.pdf>,
for comparison.)

So, with this in mind, I ask again: does reform have any room for
Blackstone?

-- 
Steve Klein
Staff Attorney & Research Counsel*
Wyoming Liberty Group
www.wyliberty.org

**Licensed to practice law in Illinois. Counsel to the Wyoming Liberty
Group pursuant to Rule 5.5(d) of the Wyoming Rules of Professional Conduct.*
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