[EL] WARNING: SNARK AHEAD RE: Supreme Court and campaign finance
Larry Levine
larrylevine at earthlink.net
Wed Jul 2 00:01:02 PDT 2014
Get rid of contribution limits and everything else will fall into place. As long as there are limits there will be loopholes. They’re called that pesky first amendment.
There had never been an independent expenditure in a City of Los Angeles election until contribution limits were put in place. The first independent expenditure accompanied the first race under the limits. There never had been an independent expenditure in a California state election until contribution limits were enacted. In a special election held under the newly adopted limits more money was spent on an independent expenditure for the winner that the total amount spent by the next five candidates. The court tossed the limits and in the next election there was not a single independent expenditure anywhere in the state. Then new limits were enacted by the voters and independent expenditures have grown with each successive election cycle. I would rather see a candidate get and report receiving a $15,000 check from an auto dealer or other source in his or her district than have them grubbing around among the special interests in the capital for capped contributions only to know some outside group was going to dump hundreds of thousands of dollars into an independent expenditure. And I don’t know of any group that wouldn’t rather be able to give the money directly to the candidate, unless that group is the consultants who get to spend the independent expenditure money. In addition it’s a joke to believe independent expenditures do not influence candidates and subsequently elected officials. Everyone knows from the start which groups have a history of spending large amounts and many candidates cater to the needs of those groups to win their support. In the quest for a solution to the perception of corruption we have enacted a web of “reforms” that have totally distorted the system and made it even more difficult for the press and public to track what’s going on. Show me a limit and I’ll show you a loophole; close that loophole and another will open. In short: money will find its way into the process no matter what we do.
Larry
From: law-election-bounces at department-lists.uci.edu [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Josh Orton
Sent: Tuesday, July 01, 2014 8:03 PM
To: Smith, Brad
Cc: law-election at uci.edu
Subject: Re: [EL] WARNING: SNARK AHEAD RE: Supreme Court and campaign finance
Well a) McCain-Feingold was not 'designed to benefit incumbents,' and b) it literally did not widely benefit incumbents, as Mark points out.
So say whatever floats your boat to justify opposing anti-corruption measures, but it doesn't mean it's true. I remember back when people attacked BCRA as pointless because Americans would always assume their government was corrupt anyway. At least that argument acknowledged corruption was bad.
On Tue, Jul 1, 2014 at 8:55 PM, Smith, Brad <BSmith at law.capital.edu> wrote:
Yes, but all of the key
Provisions of McCain-feingold were designed to benefit incumbents, and there'is little doubt that incumbents *felt* threatened by independent spending a d issue ads.
It is true that most democratic operatives that I know did not like McCain feingold but the quotes from Democrwric officeholders were legion. I don't really think there is much doubt but that McCain feingold benefitted incumbents.
Again, there can be other factors- most notably partisan advantage- at any given point in time, but over time the system will evolve to favor incumbents. Certainly incumbent re-election rates have gone up since FECA.
Bradley Smith
Sent from my iPhone
On Jul 1, 2014, at 7:23 PM, "Mark Schmitt" <schmitt.mark at gmail.com> wrote:
OK, but what you originally argued was that politicians wouldn't see campaign finance as a "problem" unless it was hurting incumbents. The 1998-2002 cycles -- the soft-money era -- were as good as it gets for incumbents, high even by historical standards, so members certainly weren't reacting to an immediate threat to incumbents. And reelection rates have been down significantly since 2004, to 85% and 90% in the last two cycles.
Not only did incumbents do unusually well in the soft-money era, it's really not true that party soft money went to challengers. The vast majority went to incumbents in tough races, and the rest to a small handful of challengers who were already competitive. The map was much narrower and both parties more cautious in that era. (I have data on this, but I can't find it right now.) The Super-PAC era is probably better for supporting long-shot challengers with strong ideological appeal.
I agree that campaign reform can be designed to benefit incumbents, and the millionaire's amendment is a very good example of it. (Although one of its very few beneficiaries was not an incumbent but an obscure state senator from Chicago seeking a U.S. Senate seat in 2004.) One of the many reasons I oppose a constitutional amendment is that I think the Court should retain some ability to strike down campaign regulations that are plainly intended to entrench power. But the majority of BCRA, as well as most of the state public-financing laws that were passed by legislatures (New York City, Connecticut, Minnesota) are not about incumbent protection.
Finally, with all respect to John Samples, I have never come across a Democratic political operative who thought that BCRA benefited their party, at the time or since.
------ Original Message ------
From: "Smith, Brad" <BSmith at law.capital.edu>
To: "law-election at uci.edu" <law-election at uci.edu>
Sent: 7/1/2014 4:47:45 PM
Subject: Re: [EL] WARNING: SNARK AHEAD RE: Supreme Court and campaign finance
Incumbent re-election rates are always high.
If you look at McCain-Feingold, the major desire was to stop party soft money (a major source of funding for challengers; and the elimination of which strengthened the position of individual incumbent officeholders as party fundraisers), and to cut back on non-party soft money (the McCain-Feingold record is replete with members railing against negative ads that attacked them, funded by non-party soft money; negative ads tend to be more necessary/effective for challengers). Once it had taken up the bill, Congress quickly added the "millionaire's amendment" aimed at insulating themselves from self-funded challengers (incumbents rarely self fund). The party soft money ban also dramatically reduced any threat of a new third party (a la the Reform Party) from happening again.
Conversely, there was little interest in eliminating leadership PACs, for example. Challengers don't have leadership Pacs.
A phenomenon that doesn't cut directly for incumbency per se but is similar is that reforms will tend to be enacted to benefit a party. Again, it's not necessarily bad motive, it's is just that a party will notice what is hurting it. John Samples argues in The Fallacy of Campaign Finance Reform that McCain-Feingold was perceived to benefit the Democratic Party*; this required attracting just enough Republican votes to pass the legislation, which were found among weak Republican incumbents. All of this is not to say that there are not many idealistic supporters of "reform" - in fact, part of my point is that almost everyone can convince themselves that the reforms they favor are idealistic, objectively beneficial to broader society.
*It was also intended to benefit the Democratic Party - not necessarily in the sense that members said "let's pass a bill that helps us and hurts them," but in the sense, again, that Democrats naturally saw elements of the system that worked against them as being, in their minds, objectively bad, and certain elements of reform that worked for them as being, in their minds, objectively good. Politicians, even more than most people, I think, tend to conflate their interests with the interests of the nation.
Bradley A. Smith
Josiah H. Blackmore II/Shirley M. Nault
Professor of Law
Capital University Law School
303 E. Broad St.
Columbus, OH 43215
614.236.6317
http://law.capital.edu/faculty/bios/bsmith.aspx
_____
From: law-election-bounces at department-lists.uci.edu [law-election-bounces at department-lists.uci.edu] on behalf of Mark Schmitt [schmitt.mark at gmail.com]
Sent: Tuesday, July 01, 2014 12:33 PM
To: law-election at UCI.edu
Subject: Re: [EL] WARNING: SNARK AHEAD RE: Supreme Court and campaign finance
Interesting theory, but how do you explain the fact that Congress passed BCRA after three consecutive cycles of incumbent reelection rates of 96% or higher?
Mark Schmitt
202/246-2350 <tel:202%2F246-2350>
gchat or Skype: schmitt.mark
twitter: mschmitt9
On Mon, Jun 30, 2014 at 8:21 PM, Smith, Brad <BSmith at law.capital.edu> wrote:
My general view is that all campaign finance systems will eventually come to benefit incumbents. This isn't necessarily due to nefarious purpose or intent (though it can be and sometimes is). Rather, if the system benefits incumbents, it won't be seen as a problem. Even if pressure grows for "reform," incumbents won't see as the problem those elements (or at least most such elements) that benefit incumbents. If the system is working against incumbents, however, those incumbents will see that as a problem and move to change the system.
Bradley A. Smith
Josiah H. Blackmore II/Shirley M. Nault
Professor of Law
Capital University Law School
303 E. Broad St.
Columbus, OH 43215
614.236.6317
http://law.capital.edu/faculty/bios/bsmith.aspx
_____
From: law-election-bounces at department-lists.uci.edu [law-election-bounces at department-lists.uci.edu] on behalf of ReThink Media [tyler at rethinkmedia.org]
Sent: Monday, June 30, 2014 7:56 PM
To: Sean Parnell
Cc: law-election at UCI.edu
Subject: Re: [EL] WARNING: SNARK AHEAD RE: Supreme Court and campaign finance
I didn't mean to imply that this is necessarily the *real* reason Republicans oppose the amendment but rather to show Mr. Bopps argument is easily turned on its head.
--
Tyler Creighton
tyler at rethinkmedia.org
Sent from my phone
On Jun 30, 2014, at 7:24 PM, "Sean Parnell" <sean at impactpolicymanagement.com> wrote:
All I can say is that if I possessed the type of mindreading abilities displayed here on the matter of why Republicans *really* oppose a Constitutional amendment giving Congress the powers sought by Mr. Creighton, I wouldn’t be typing out e-mails to the election law listserve, I’d be sitting at a poker table in Vegas.
Best,
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 Tyler Creighton
Sent: Monday, June 30, 2014 6:31 PM
To: law-election at UCI.edu
Subject: Re: [EL] Supreme Court and campaign finance
The "campaign finance is incumbency protection" argument is a tired trope that doesn't hold water. The argument implies that Congressional inaction to regulate campaign finance is as much an incumbency protection racket as Congressional action to do the same. In other words not writing any rules is in fact writing the rules. Republicans in Congress refuse to support a constitutional amendment empowering Congress to place contribution limits on independent expenditure groups because they wish to preserve a leg up over challengers who cannot attract large sums of IEs. Republicans in Congress refuse to support a constitutional amendment empowering Congress to re-enforce aggregate contribution limits because incumbents can join together to solicit multi-million dollar contributions to JFCs.
Moreover, the argument is completely divorced from hard data and the reality of modern day fundraising. The data shows us that incumbents are disproportionately advantaged in raising large sums of money with higher contribution limits. Incumbents have ready made fundraising networks and connections to industry and lobbyists who are willing to write checks and host fundraisers. Of the top 20 State Assembly fundraisers in 2012 in Texas <http://www.followthemoney.org/database/StateGlance/state_candidates.phtml?s=TX&y=2012&f=H> , a state with no individual contribution limit to candidates, 14 were incumbents while a mere 4 were challengers and 2 were for open seats. A challenger doesn't crack the top 7. Only one true challenger is in the top 20 list <http://www.followthemoney.org/database/StateGlance/state_candidates.phtml?s=TX&y=2012&f=S> for State Senate candidates. A much more exhaustive look at contribution limits <http://www.brennancenter.org/sites/default/files/legacy/publications/Electoral.Competition.pdf> and electoral competition by the Brennan Center (itself supported by this GMU research <http://brennan.3cdn.net/82542437c8f479e0e9_3em6iyowv.pdf> ) substantiates this quick glance at the data in Texas.
One can certainly envision a contribution limit sufficiently low as to advantage incumbents over challengers, but high contribution limits is the other side of the same coin. If your goal is electoral competition, public financing of elections, as demonstrated in Connecticut <http://www.demos.org/publication/fresh-start-impact-public-campaign-financing-connecticut> and elsewhere, should be your goal, not abolishment of all contribution caps.
Tyler Creighton | <mailto:tyler at rethinkmedia.org> tyler at rethinkmedia.org | Media Associate
ReThink Media <http://rethinkmedia.org/> | (202) 449-6960 <tel:%28202%29%20449-6960> office | (925) 548-2189 <tel:%28925%29%20548-2189> mobile
@ReThinkDemocrcy <https://twitter.com/rethinkdemocrcy> | @ReThink_Media <https://twitter.com/rethink_media> | <http://www.twitter.com/tylercreighton> @TylerCreighton
On Mon, Jun 30, 2014 at 3:46 PM, Rick Hasen <rhasen at law.uci.edu> wrote:
If anyone responds to this, please use this (or another) subject line (and not ELB News and Commentary)
On 6/30/14, 12:44 PM, JBoppjr at aol.com wrote:
Regarding this:
The Court has shown no such deference when it comes to the need for campaign finance regulation or to protect the voting rights of racial minorities and others. The Roberts Court has overturned or limited every campaign finance law it has examined (aside from disclosure laws). It has struck down a key provision of the Voting Rights Act. How much deference did Congress get in those cases? None.
Well when is Congress wise and entitled to deference? When the Court agrees with Congress’s approach. Let’s call that “faux deference,” to go with the “f <http://www.slate.com/articles/news_and_politics/the_breakfast_table/features/2014/scotus_roundup/scotus_end_of_term_massachusetts_abortion_clinic_buffer_zone_law_goes_down.html> aux-nanimity” of the rest of the term.
Rather than deference, a much better argument could be made for scepticism when it comes to Congress writing campaign finance laws. After all, with campaign finance laws, members of Congress are writing the rules for their own election specifically and when citizens can criticize them generally. There are no subjects that they are more intensely self-interested.
Ironically, "reformers" should know this. Some of them believe that members of Congress thirst so strongly for campaign contributions that they would sell their votes for just a few hundred dollars. If this is true, then surely they would write campaign finance laws to benefit themselves. Jim Bopp
In a message dated 6/30/2014 1:05:54 P.M. Eastern Daylight Time, rhasen at law.uci.edu writes:
#HobbyLobby: When is Congress “Wise?” When the Court Agrees with Congress’s Wisdom <http://electionlawblog.org/?p=62877>
Posted on June 30, 2014 8:50 am <http://electionlawblog.org/?p=62877> by Rick Hasen <http://electionlawblog.org/?author=3>
Near the end of Justice Alito’s majority opinion in the Hobby Lobby <http://www.supremecourt.gov/opinions/13pdf/13-354_olp1.pdf> case today, he writes that it is not the Court’s job to question the “wisdom” of Congress in using the compelling interest test in RFRA, but the Court applies that RFRA test strongly, and in a way which shows the Court apparently giving great deference to Congress’s judgment about how to balance the government’s interest in generally applicable laws with the accommodations of religious freedoms. It reminded me of Justice Scalia’s pleas in Windsor <http://www.supremecourt.gov/opinions/12pdf/12-307_6j37.pdf> last term for deference to Congress on the need for the Defense of Marriage Act.
The Court has shown no such deference when it comes to the need for campaign finance regulation or to protect the voting rights of racial minorities and others. The Roberts Court has overturned or limited every campaign finance law it has examined (aside from disclosure laws). It has struck down a key provision of the Voting Rights Act. How much deference did Congress get in those cases? None.
Well when is Congress wise and entitled to deference? When the Court agrees with Congress’s approach. Let’s call that “faux deference,” to go with the “faux-nanimity <http://www.slate.com/articles/news_and_politics/the_breakfast_table/features/2014/scotus_roundup/scotus_end_of_term_massachusetts_abortion_clinic_buffer_zone_law_goes_down.html> ” of the rest of the term.
--
Rick Hasen
Chancellor's Professor of Law and Political Science
UC Irvine School of Law
401 E. Peltason Dr., Suite 1000
Irvine, CA 92697-8000
949.824.3072 - office
949.824.0495 - fax
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http://www.law.uci.edu/faculty/full-time/hasen/
http://electionlawblog.org <http://electionlawblog.org/>
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