[EL] WARNING: SNARK AHEAD RE: Supreme Court and campaign finance

Wed Jul 2 09:32:43 PDT 2014

The purported "corruption" was access and gratitude but not one single case of vote buying or quid pro quo exchanges. So no corruption in my book or in the Supreme Court's. Jim Bopp

-------- Original message --------
From: Josh Orton <orton at progressivesunited.org> 
Date: 07/01/2014  5:11 PM  (GMT-05:00) 
To: "Smith, Brad" <BSmith at law.capital.edu> 
Cc: law-election at uci.edu 
Subject: Re: [EL] WARNING: SNARK AHEAD RE: Supreme Court and campaign finance 

The problem with soft money was corruption. It could not have been clearer, unless you see corruption as a legitimate function of democracy, which is actually not that rare a viewpoint.

But sure, for those whose livelihood is election dependent, it was all about who it would/would not benefit financially. But I'm not sure McCain cared about that part, and I know that wasn't Russ's motivation. 

Did both Democrats and Republican support/oppose BCRA for political reasons? I'm sure, just like every other piece of legislation that's ever been proposed. But it's just bogus to backfill the motives of the authors, unless you'd agree that conservatives cheered CU because it allows them to corrupt our government more efficiently. 

"Politicians, even more than most people, I think, tend to conflate their interests with the interests of the nation." We agree.

On Tue, Jul 1, 2014 at 3:47 PM, Smith, Brad <BSmith at law.capital.edu> wrote:
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
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, 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 for State Senate candidates. A much more exhaustive look at contribution limits and electoral competition by the Brennan Center (itself supported by this GMU research) 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 and elsewhere, should be your goal, not abolishment of all contribution caps.  

Tyler Creighton | tyler at rethinkmedia.org  |  Media Associate

ReThink Media | (202) 449-6960 office | (925) 548-2189 mobile 

@ReThinkDemocrcy | @ReThink_Media | @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 “faux-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

Posted on June 30, 2014 8:50 am by Rick Hasen

Near the end of Justice Alito’s majority opinion in the Hobby Lobby 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 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” 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
rhasen at law.uci.edu
http://www.law.uci.edu/faculty/full-time/hasen/
http://electionlawblog.org

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