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

Fri Jul 4 11:46:18 PDT 2014

Thanks, John. I don’t remember what was in the 1996 bill, but I think it was mostly an extension of the 1994 bill and the 1980s bills that were focused on PACs. The key things that made BCRA BCRA, and problematic, such as the Snowe-Jeffords provision on electioneering communications, were developed after 1998.

There’s one name that should be mentioned here. An incumbent who raised a huge amount of soft money, from dubious sources and using the power of his office, to protect his incumbency: the Big Dog. The Clinton fundraising scandals really changed the game after 1996; they are certainly a large part of what drove McCain, as well as a lot of more moderate Republicans like Chris Shays, who didn’t like the Clinton impeachment stuff (nor did their constituents), but were genuinely shocked by the Lincoln Bedroom, etc.  And if there is one lasting achievement of BCRA, it was in getting elected officials (incumbents) out of the business of soliciting soft money in the way that Clinton did. Even if a little bit of that money eventually went to challengers, that soft money was certainly enhancing the power of incumbents. 

Finally, if moderate Republicans supported BCRA as incumbent protection –you might ask Mr. Shays how that worked out for them.

From: John Samples [mailto:john.samples at gmail.com] 
Sent: Thursday, July 3, 2014 3:19 PM
To: Mark Schmitt
Cc: law-election at UCI.edu
Subject: Re: [EL] WARNING: SNARK AHEAD RE: Supreme Court and campaign finance

Interesting question, Mark. 

You are correct about House elections just prior to the passage of BCRA. I recall that something similar might be said about House re-election rates prior to the enactment of FECA (though not to immediately afterward, i.e. the 1974 election). 

Here I would look elsewhere for the incumbency factor.

BCRA began its legislative journey prior to the 1996 election (The New Campaign Finance Sourcebook, 36). The 1992 and 1994 elections were scary for incumbents. BCRA could be seen as a response to that threat.

But BCRA did not pass in 1996. Why not, if incumbent protection is such a factor in enacting these regulations? Part of the answer is institutional: BCRA fell in 1996 to a filibuster. In general, legislating is hard in the US. There are multiple veto-points. Other factors also matter enacting legislation: partisanship, above all. The GOP had both House majorities and a 60-40 edge in soft money fundraising during this period. 

But the bill did pass in 2002. Why? Twenty percent of the GOP caucus in both the House and the Senate voted for it. One might say conjecture that the incumbent interests of this 20 percent overcame their partisan interests. 

Party soft money was a real threat to holders of marginal seats. After all, party leaders applied soft money to the task of defeating vulnerable candidates of the other party. 

Is there any evidence that the 20 percent of Republicans who voted for BCRA held more vulnerable seats than the 80 percent did not. There was about an 8 point average difference in Bush's 2000 vote share between districts represented by pro-BCRA members and those represented by anti-BCRA Republicans. That vulnerable 20 percent may have seen needed help in BCRA's soft money ban, at least as long as they could believe it would also restrict outside groups.

Of course, members from different districts and the same party may differ in important ways. Republicans in competitive districts might be ideologically different than those from safer districts. If reform ideology and incumbent interest are highly correlated, you have an identification problem. 

Still, I am inclined to think that BCRA may have been more than anything else an effect of a larger change whereby Democratic (Republican) districts are less likely to elect Republican (Democratic) representatives.

John Samples

Cato Institute

On Tue, Jul 1, 2014 at 12:33 PM, Mark Schmitt <schmitt.mark at gmail.com <mailto:schmitt.mark at gmail.com> > wrote:

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
 <tel:202%2F246-2350> 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 <mailto: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

 <tel:614.236.6317> 614.236.6317

 <http://law.capital.edu/faculty/bios/bsmith.aspx> http://law.capital.edu/faculty/bios/bsmith.aspx

  _____  

From:  <mailto:law-election-bounces at department-lists.uci.edu> 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 ReThink Media [ <mailto:tyler at rethinkmedia.org> tyler at rethinkmedia.org]
Sent: Monday, June 30, 2014 7:56 PM
To: Sean Parnell
Cc:  <mailto:law-election at UCI.edu> 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

 <mailto:tyler at rethinkmedia.org> tyler at rethinkmedia.org

Sent from my phone

On Jun 30, 2014, at 7:24 PM, "Sean Parnell" <sean at impactpolicymanagement.com <mailto: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

 <tel:571-289-1374> 571-289-1374 (c)

 <mailto:sean at impactpolicymanagement.com> sean at impactpolicymanagement.com

From:  <mailto:law-election-bounces at department-lists.uci.edu> 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 Tyler Creighton
Sent: Monday, June 30, 2014 6:31 PM
To:  <mailto:law-election at UCI.edu> 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

 <http://rethinkmedia.org> ReThink Media |  <tel:%28202%29%20449-6960> (202) 449-6960 office |  <tel:%28925%29%20548-2189> (925) 548-2189 mobile 

 <https://twitter.com/rethinkdemocrcy> @ReThinkDemocrcy |  <https://twitter.com/rethink_media> @ReThink_Media |  <http://www.twitter.com/tylercreighton> @TylerCreighton

On Mon, Jun 30, 2014 at 3:46 PM, Rick Hasen <rhasen at law.uci.edu <mailto: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 <mailto: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,  <mailto:rhasen at law.uci.edu> rhasen at law.uci.edu writes:

 <http://electionlawblog.org/?p=62877> #HobbyLobby: When is Congress “Wise?” When the Court Agrees with Congress’s Wisdom 

Posted on  <http://electionlawblog.org/?p=62877> June 30, 2014 8:50 am by  <http://electionlawblog.org/?author=3> Rick Hasen 

Near the end of Justice Alito’s majority opinion in the  <http://www.supremecourt.gov/opinions/13pdf/13-354_olp1.pdf> 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  <http://www.supremecourt.gov/opinions/12pdf/12-307_6j37.pdf> 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 “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.

-- 
Rick Hasen
Chancellor's Professor of Law and Political Science
UC Irvine School of Law
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