[EL] WARNING: SNARK AHEAD RE: Supreme Court and campaign finance
Robert Wechsler
catbird at pipeline.com
Mon Jul 7 13:50:28 PDT 2014
Getting back to the local part of the Snark Ahead line of emails, I want
to thank Mark Scarberry for recognizing that I was talking to Brad Smith
about contributions to local government candidates, which led Brad (and
Larry Levine) to respond to what I said.
In response to Brad, I do not agree with his assertion that '"the vast
majority of campaign contributors have no corrupt intentions,and in fact
never even seek a meeting with an officeholder." A quick perusal of any
state of local disclosure database will disabuse anyone of that notion.'
A "quick perusal" of disclosure databases runs into two problems. One,
local contributions are rarely disclosed online or in digital form, so
they are hard to quickly peruse. Two, you have to know who the
restricted sources and their employees and agents are in order to know
the extent of their contributions. In the jurisdictions where I have
knowledge of who is who, most contributions over $25 or so are from
restricted sources.
Three, government ethics pays no attention to intention. There is no way
to know a contributor's intention. There is no way to know whether a
contribution is intended to influence or is the result of pay to play,
or neither. As soon as you raise the issue of intention, you are beyond
the limits of my knowledge, and anyone's knowledge. But I do know about
appearances, and when someone seeking special benefits such as
contracts, permits, and grants from a government makes a contribution to
its high-level officials, it looks as if it is either pay to play or an
attempt to influence.
Brad writes that "restricted sources" is "a category that pretty much
covers the entire population of the United States." That too against
goes against everything government ethics practitioners believe and
ethics codes state in their definitions. Brad, are you uninformed or do
you reject these definitions?
Brad asserts that, even if everything I say is true, "contribution
limits do, almost by definition, inhibit a great deal of non-corrupting
activity." Contribution limits on restricted sources do not inhibit any
activity that does not appear corrupt. When you speak of
"non-corrupting" activity, you are outside government ethics. Who can
know the effect of any contribution or of pay to play on someone's level
of personal corruption?
I agree with Brad that reform organizations focus too much on campaign
finance reform, but a major reason for this is that this is the area in
which the suits have been filed. They take up too much of the
organizations' resources, at both the state and national levels. This
leaves few resources for other government ethics reform or the local level.
But my problem with this isn't that what I focus on is "real" corruption
and they focus on something else. Elections are central to institutional
corruption much more than to personal corruption. Which takes us back to
the Supreme Court, which has narrowed its campaign finance focus to
personal, quid pro quo corruption in an area where corruption tends to
be institutional.
Moving on to Larry's response, he writes, "Awarding of contracts most
frequently is based on competitive bidding and recommendations come from
departments in the administrative branch. Where final approval is
required by a legislative body, there is the press and public interest
groups to keep an eye on whether the 'lowest competitive bid' standard
is being violated frequently."
This is, as Larry suggests, "naive," or uninformed. Only large contracts
are competitively bid, many are treated as single source or emergency
contracts, and professional contracts are rarely competitively bid,
which puts into question the many contributions from lawyers and other
professionals seeking government contracts. Even when competitively bid,
there are numerous ways to game the system, including specifications,
divided-up contracts, and change orders (see the section on gaming the
system in the Procurement Process chapter of my book
<http://www.cityethics.org/files/lgep1-0%20-%20Robert%20Wechsler.htm#Procurement%20Process>
/Local Government Ethics Programs/; click and search for "gaming the
system.").
As for "the press and public interest groups," most localities now have
the benefit of little investigative reporting and there are few local
public interest groups with the right expertise. In any event, few
reporters or bloggers have an understanding of procurement sufficient to
expose gaming. We are dependent on losing bidders. In fact, one of the
principal effects of gaming is losing honest bidders, which increases
the cost of contracts to the public.
Rob Wechsler
City Ethics
On 7/6/2014 3:50 PM, Scarberry, Mark wrote:
> I usually agree with Jim and Larry, and usually am on the "free
> speech" side rather than the "reform" side on these issues. I do
> wonder though whether local officials who have great latitude in
> awarding contracts and benefits (generally on non-ideological grounds)
> may reward contributors in ways that state and federal level elected
> officials would find it hard to do.
>
> Perhaps public employee union contributions raise similar issues at
> the state and federal level, and perhaps elected officials at those
> levels have a lot of influence on awarding of contracts (beyond
> members of congress bringing the pork home for their home states). So
> perhaps the issues are not easily distinguishable based on these levels.
>
> Mark
>
> Mark S. Scarberry
> Pepperdine University School of Law
City council candidates usually are perceived to be "pro-developer" or
"anti-developer" at the time they file. Surely, in cities where
development is an issue candidates will be forced to take positions on
these issues and the sources of their contributions will become known.
Same can be said of other issues: pro or anti union, open space
protections, crime, etc. In addition voter turnouts tend to be smaller
in municipal races with the result being a more informed electorate to
discern the differences between candidates._Awarding of contracts most
frequently is based on competitive bidding and recommendations come from
departments in the administrative branch. Where final approval is
required by a legislative body, there is the press and public interest
groups to keep an eye on whether the "lowest competitive bid" standard
is being violated frequently._ And union contracts are produced by
collective bargaining in which the elected officials usually are not
directly involved. Certainly, nothing is perfect. But neither are things
so far off the rails as to justify rampant violations of free political
speech and redress. And on those occasions when they go off the rails
there numbers of safeguards. Furthermore, contribution limits tend to
work a disproportionate hardship on those attempting to finance
campaigns in opposition to incumbents -- in other words redress a
grievance through free political speech.
I know I run the risk of being called naïve again for this position. But
after 44 years of political consulting and a dozen years as a political
reporter, I'll take that risk.
Larry
Several thoughts on Robert's post:
1. Robert, as a local office holder with a spouse who has been a
candidate for local office, I am very much aware of state and local
elections.
2. I actually agree with Robert (and I note Mark Scarberry) that "pay to
play" can be a bigger issue locally.
3. _I don't think Robert really would challenge my initial assertion,
which is that "__the vast majority of campaign contributors have no
corrupt intentions__,____and in fact never even seek a meeting with an
officeholder." A quick perusal of any state of local disclosure database
will disabuse anyone of that notion._
4. Robert changed my assertion, to address "/large /contributions,"
(emphasis added), and then asserts that "most large contributions come
from 'restricted sources,' that is, those regulated by, employed by, or
seeking special benefits from the government (directly or for their
clients)." _That's a category that pretty much covers the entire
population of the United States_, even without depending on how one
defines "special benefits." But limiting ourselves to those seeking
government contracts and regulatory approvals, not even a significant
fraction, let alone "most" large contributions come from such sources.
5. However, assuming, as I have already ceded, that "pay to play" is
more likely a problem at state and local levels, and even if one were to
accept the wild assertion that "most large contribut[ors]" seek meetings
with officeholders and "special benefits" from government, none of this
challenges my basic point, which is that _contribution limits do, almost
by definition, inhibit a great deal of non-corrupting activity._
6. Robert's focus on local elections, I think, strengthens my point -
which, for those who have long sense lost track in this meandering
debate, is that reform organizations might be able to find common ground
if they'd focus more directly on the specific problems of corruption
rather than broad prophylactic schemes aimed at altering the system. Why
does it strengthen my point? Because campaign finance reform
organizations have devoted substantially more effort to the federal
level than to state and especially local practices. Further, _when they
have gone local, the programs are generally modeled after federal level
initiatives. _
7. Further, relatively little effort has gone into non-campaign finance
mechanisms aimed at fighting corruption, such bidding processes,
contract review, tougher enforcement of bribery laws, open meetings, and
such.
For what its worth, I believe that the focus on campaign finance
distracts from efforts to expose and fight actual, real corruption.
Indeed, the first thing many a typical politician does, when caught in
such corruption, is propose campaign finance reform.
/Bradley A. Smith/
>
>
> Sent from my Verizon Wireless 4G LTE Smartphone
>
>
> -------- Original message --------
> From: Larry Levine
> Date:07/06/2014 10:36 AM (GMT-08:00)
> To: JBoppjr at aol.com, catbird at pipeline.com, BSmith at law.capital.edu
> Cc: law-election at uci.edu
> Subject: Re: [EL] WARNING: SNARK AHEAD RE: Supreme Court and campaign
> finance
>
> I've been preaching this message to reformers and reporters for
> decades. People who opposed the war in Vietnam gave to anti-war
> candidates, not pro-war candidates; people who support reproductive
> choice give to one set of candidates; anti-choice advocates give to
> different candidates. All this is why I believe contribution limits
> are an abridgment of the right of redress. When is free speech more
> necessary than in pursuit of redress. If my government is trying to
> break the union movement and I am pro-labor I should be permitted to
> contribute to pro-labor candidates in unlimited amounts. The notion
> that I would give to an anti-labor candidate to change his or her vote
> is foolish. Were I to do so with the express agreement that the vote
> would change, that would be bribery and we have laws to cover that.
>
> Larry
>
> *From:*law-election-bounces at department-lists.uci.edu
> [mailto:law-election-bounces at department-lists.uci.edu] *On Behalf Of
> *JBoppjr at aol.com
> *Sent:* Sunday, July 06, 2014 7:22 AM
> *To:* catbird at pipeline.com; BSmith at law.capital.edu
> *Cc:* law-election at uci.edu
> *Subject:* Re: [EL] WARNING: SNARK AHEAD RE: Supreme Court and
> campaign finance
>
> Regarding:
>
> /It's interesting how easily and unquestioningly some people say that
> "the vast majority of campaign contributors have no corrupt
> intentions," when in the vast majority of elections --- that is, local
> elections --- most large contributions come from "restricted sources,"
> that is, those regulated by, employed by, or seeking special benefits
> from the government (directly or for their clients)./
>
> As has been explained, there are two strategies for contributing, (1)
> find someone who agrees with you and then contribute to him or her to
> help get him or her get elected, or (2) find someone who opposes your
> views or is indifferent and then contribute to her to change her
> mind. Strategy (2) is rare because it is so dumb. What are the
> chances of changing someone's mind with a contribution, particularly
> one limited by contribution limits? If that happens, what are the
> chances of the politician staying bought?
>
> Strategy (1) is way more successful.
>
> This is so for anyone wanting benefits from government, including
> those wanting "special benefits." Lets say someone wants an increase
> in food stamp allowances. It is much smarter to contribute to a
> liberal Democrat than to a conservative Republican. And it does not
> matter if it is a "special benefit," whatever that is. Let's say one
> wants increased public employee union pensions and health care
> benefits. Well find a politician who thinks that is good public
> policy, ie, your average union official or everyday liberal
> Democrat, and contribute to him or her and you actually have a chance
> that the politician might support that public policy in office.
>
> "Pay to play" is Strategy (2) and I can only hope that all the
> liberals and progressives actually employ this strategy. I have a
> nice long list of conservative Republicans for them to "pay to play."
>
> However, we know they don't, so what does that say about the validity
> of their argument?. Jim Bopp
>
> In a message dated 7/5/2014 6:18:23 P.M. Eastern Daylight Time,
> catbird at pipeline.com <mailto:catbird at pipeline.com> writes:
>
> It's interesting how easily and unquestioningly some people say
> that "the vast majority of campaign contributors have no corrupt
> intentions," when in the vast majority of elections --- that is,
> local elections --- most large contributions come from "restricted
> sources," that is, those regulated by, employed by, or seeking
> special benefits from the government (directly or for their
> clients). In local elections, there is little ideology and lots of
> pay to play, expected contributions from employees and appointed
> officials, and the desire to preserve access and influence in
> order to keep, get, or prevent very specific things, such as
> contracts, permits, grants, and regulations. The vast majority of
> these contributors meet with officeholders.
>
> The world does not consist of the federal government. In the world
> where I work, you cannot get elected without money from restricted
> sources unless you are independently wealthy or participate in a
> public campaign financing program. Are elected local and state
> officials decent and honorable people stuck in a situation of
> legal, institutional corruption? No one can know an individual's
> character, but we can know the laws they pass and fail to pass.
>
> We also cannot know how many decent, honorable people choose not
> to run because of what they would have to do to run a winning
> campaign.
>
> Robert Wechsler
> City Ethics <http://www.cityethics.org/>
>
> On 7/3/2014 6:11 PM, Smith, Brad wrote:
>
> As I read this thread, a few thoughts occur to me:
>
> 1. Chief Justice Roberts made a very good point in the
> McCutcheon decision, when he pointed out that contribution
> limits are themselves a "prophylactic." That is to say, *_the
> vast majority of campaign contributors have no corrupt
> intentions_*, *_and in fact never even seek a meeting with an
> officeholder_*_._ They merely want what they consider to be
> good policy and good government. Similarly, the substantial
> majority of officeholders are *_not corrupt, but decent,
> honorable men and women_* trying to do a very difficult job.
> Thus, contribution limits inherently infringe on a great deal
> of political activity - speech activity - that is outside the
> scope of "corruption" as, I think, most Americans think of
> "corruption," and as the Supreme Court defines it for purposes
> of a compelling government interest that might overcome First
> Amendment rights.
>
> 2. The reform movement has not pursued narrowly targeted
> approaches aimed at specific, actual corruption with much
> vigor. Yes, virtually all reformers I know dislike Leadership
> PACs, but they have devoted, on the whole, little effort to
> reforming them. They have done very little to revise "personal
> use" laws (I believe I can say that during my time on the FEC,
> I was the toughest commissioner on the question of personal
> use). They have paid little attention to the types of events
> that Joe writes about below (But ask Bob Ney if there are
> limits). They have not put a major emphasis on limiting direct
> promises of access for contributions. Lobbying abuses,
> including lobbying by immediate family members, have always
> been a secondary target. Again, I emphasize that of course
> reformers have bemoaned abuses in these areas, but they have
> not been a major point of the reform lobby's legislative
> efforts. Those efforts have been reserved for much broader,
> "prophylactic" measures that necessarily limit a great deal of
> First Amendment activity that is not corrupting, and that have
> created an ever more complex set of rules that have,
> themselves, distorted the process. (As Larry notes, there was
> a time, before contribution limits, when massive IE campaigns
> were unheard of, to give just one example). Even the 1990s law
> that finally prohibited officeholders from converting campaign
> funds to personal funds on retirement was not led by the
> reform community, but by talk radio hosts, term limit
> enthusiasts, and other tea party precursors upset about
> perceived congressional abuses in the late '80s and early '90s
> that included the House banking scandal and more.
>
> 3. I suspect there would be room for cooperation and broad
> consensus on some of these narrow corruption issues, if
> reformers were prepared to drop their more utopian ideas and
> blunderbuss measures and place their focus here.
>
> /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
> <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>] on
> behalf of Joe Birkenstock [birkenstock at sandlerreiff.com
> <mailto:birkenstock at sandlerreiff.com>]
> *Sent:* Thursday, July 03, 2014 10:38 AM
> *To:* larrylevine at earthlink.net
> <mailto:larrylevine at earthlink.net>; JBoppjr at aol.com
> <mailto:JBoppjr at aol.com>
> *Cc:* law-election at uci.edu <mailto:law-election at uci.edu>
> *Subject:* Re: [EL] WARNING: SNARK AHEAD RE: Supreme Court and
> campaign finance
>
> Fair question Larry, but it's the "stays with" that really
> illustrates my point. What does that mean when that money
> replaces money spent on skiing?
>
> My real point with all this: Jim & his clients are litigating
> away/have litigated away the administrative rules that used to
> draw these kinds of lines. What's left are a set of criminal
> laws that Jim says he supports (his words: selling access
> "should be" illegal) but which exist primarily in the eye of
> the beholder.
>
> Ask Scott Walker (or Don Seigelman) whether we're better off
> using criminal laws to police officeholder self-dealing than
> we were when these were issues addressed first and
> foremost with fines and conciliation agreements.
>
>
> Sent from my iPhone
>
> *From: *Larry Levine <larrylevine at earthlink.net
> <mailto:larrylevine at earthlink.net>>
> *Reply-To: *"larrylevine at earthlink.net
> <mailto:larrylevine at earthlink.net>" <larrylevine at earthlink.net
> <mailto:larrylevine at earthlink.net>>
> *Date: *Thursday, July 3, 2014 at 10:16 AM
> *To: *Joe Birkenstock <birkenstock at sandlerreiff.com
> <mailto:birkenstock at sandlerreiff.com>>, Jim Bopp
> <jboppjr at aol.com <mailto:jboppjr at aol.com>>
> *Cc: *"law-election at uci.edu <mailto:law-election at uci.edu>"
> <law-election at uci.edu <mailto:law-election at uci.edu>>
> *Subject: *RE: [EL] WARNING: SNARK AHEAD RE: Supreme Court and
> campaign finance
>
> And what if the money stays with the campaign committee for
> communications with voters and eliminates the cause for
> independent expenditures?
>
> Larry
>
> *From:*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 *Joe Birkenstock
> *Sent:* Thursday, July 03, 2014 6:52 AM
> *To:* JBoppjr at aol.com <mailto:JBoppjr at aol.com>
> *Cc:* law-election at uci.edu <mailto:law-election at uci.edu>
> *Subject:* Re: [EL] WARNING: SNARK AHEAD RE: Supreme Court and
> campaign finance
>
> "Who gets the $100k?" That's a good question, isn't it?
>
> In practice it goes back to the campaign committee that paid
> for the weekend. So if you accept that money is fungible it
> seems as true to say the weekend attendees get it - at least
> get the benefit of it (including the senator).
>
> Sent from my iPhone
>
>
> On Jul 3, 2014, at 9:47 AM, "JBoppjr at aol.com
> <mailto:JBoppjr at aol.com>" <JBoppjr at aol.com
> <mailto:JBoppjr at aol.com>> wrote:
>
> As Trevor's "example" demonstrates, there is a lot of
> sloppy, vague and broad language used by "reformers"
> here. So, as to Joe's hypo, who get the $100K -- assuming
> it does not violate any contribution limits? Jim
>
> In a message dated 7/3/2014 9:40:23 A.M. Eastern Daylight
> Time, birkenstock at sandlerreiff.com
> <mailto:birkenstock at sandlerreiff.com> writes:
>
> Sure does. What if a US senator (also a public
> official) raises the same $100k from the same sources
> for a private ski weekend in Aspen all paid by
> campaign funds. Still a bribe?
>
> Sent from my iPhone
>
>
> On Jul 3, 2014, at 9:34 AM, "JBoppjr at aol.com
> <mailto:JBoppjr at aol.com>" <JBoppjr at aol.com
> <mailto:JBoppjr at aol.com>> wrote:
>
> Can the Director of the IRS -- a government
> official -- charge and pocket $100,000 for a
> meeting with him at IRS headquarters? Sounds like
> a bribe to me Jim Bopp
>
> In a message dated 7/3/2014 9:30:42 A.M. Eastern
> Daylight Time, birkenstock at sandlerreiff.com
> <mailto:birkenstock at sandlerreiff.com> writes:
>
> Now *this* is an interesting way to start a
> long holiday weekend. Serious question: this
> is "already illegal" under what law?
>
> ___________________________________
>
> Joseph M. Birkenstock
>
> Sandler Reiff Lamb Rosenstein & Birkenstock, P.C.
>
> 1025 Vermont Avenue, NW, Suite 300
>
> Washington, DC 20005
>
> 202.479.1111
>
> *also admitted to practice in CA
>
> *From: *Jim Bopp <jboppjr at aol.com
> <mailto:jboppjr at aol.com>>
> *Date: *Thursday, July 3, 2014 at 8:18 AM
> *To: *Trevor Potter <tpotter at capdale.com
> <mailto:tpotter at capdale.com>>
> *Cc: *"law-election at uci.edu
> <mailto:law-election at uci.edu>"
> <law-election at uci.edu
> <mailto:law-election at uci.edu>>
> *Subject: *Re: [EL] WARNING: SNARK AHEAD RE:
> Supreme Court and campaign finance
>
> Trevor, you are so silly. This is already
> illegal and should be. Jim
>
> In a message dated 7/2/2014 7:37:19 P.M.
> Eastern Daylight Time, tpotter at capdale.com
> <mailto:tpotter at capdale.com> writes:
>
> right to buy and sell meetings with
> government officials
>
>
>
>
> _______________________________________________
>
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