[EL] "The New Soft Money"/more news 6/18/14
Rick Hasen
rhasen at law.uci.edu
Wed Jun 18 07:18:06 PDT 2014
"The New Soft Money" -- Read It! <http://electionlawblog.org/?p=62484>
Posted on June 18, 2014 7:16 am <http://electionlawblog.org/?p=62484>by
Rick Hasen <http://electionlawblog.org/?author=3>
Let me briefly add my praise to Heather's post
<http://electionlawblog.org/?p=62416> on Dan Tokaji and Renata Strause's
report issued today, "The New Soft Money: Outside Spending in
Congressional Elections." <http://moritzlaw.osu.edu/thenewsoftmoney/> I
had a chance to read this in draft a few weeks ago.
This is an important, context-rich qualitative report on the role of
money in politics, and I'm already finding it very useful in my own work.
Dan will be blogging a bit about the report's findings over the coming
days (after an event tonight at GW <http://electionlawblog.org/?p=62329>).
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Posted in campaign finance <http://electionlawblog.org/?cat=10>
"Does Supreme Court Want Truthier Elections?"
<http://electionlawblog.org/?p=62482>
Posted on June 18, 2014 7:10 am <http://electionlawblog.org/?p=62482>by
Rick Hasen <http://electionlawblog.org/?author=3>
Noah Feldman
<http://www.bloombergview.com/articles/2014-06-17/does-supreme-court-want-truthier-elections>:
Seen from this perspective, laws regulating speech at election time
are like laws regulating money at election time: obsolete relics of
the Progressive-era aspiration to rid politics of distortion and
dirty tricks. Count on the Supreme Court to strike down bans on
election-season falsehoods when the time comes. And count on our
elections to keep getting dirtier.
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Posted in campaign finance <http://electionlawblog.org/?cat=10>,
campaigns <http://electionlawblog.org/?cat=59>
"Koch Group Forms 'Super PAC' as 2014 Races Near"
<http://electionlawblog.org/?p=62480>
Posted on June 18, 2014 7:05 am <http://electionlawblog.org/?p=62480>by
Rick Hasen <http://electionlawblog.org/?author=3>
NYT
<http://www.nytimes.com/2014/06/18/us/politics/koch-group-forms-super-pac-as-2014-races-near.html?hpw&rref=us&_r=1>:
Until now, groups supported by the Kochs and their fellow donors
have relied heavily on "issue ads" that do not specifically ask
listeners to vote for or against a candidate. Strategists working
with the Kochs concluded that the approach, while preserving the
secrecy of donors, limited the political impact of the groups' efforts.
With the Kochs already the subject of aggressive and personal
attacks by Democrats, and after reports that revealed the names of
many of the wealthy donors working with them
<http://www.motherjones.com/politics/2014/02/koch-brothers-palm-springs-donor-list>,
Freedom Partners concluded that the flexibility afford by the super
PAC was worth the headaches that increased disclosure may bring,
according to a person who attended the group's most recent
conference, held earlier this week.
Another person briefed on the super PAC's plans said it would spend
more than $15 million in the 2014 campaigns, going head to head with
environmental groups and liberal donors such as Tom Steyer, a former
hedge-fund investor who has pledged to raise and spend $100 million
on the climate change issue this year.
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Posted in campaign finance <http://electionlawblog.org/?cat=10>
"Even if accidental, the loss of Lois Lerner's e-mails is evidence
of problems at the IRS" <http://electionlawblog.org/?p=62478>
Posted on June 18, 2014 7:02 am <http://electionlawblog.org/?p=62478>by
Rick Hasen <http://electionlawblog.org/?author=3>
Jonathan Adler blogs
<http://www.washingtonpost.com/news/volokh-conspiracy/wp/2014/06/17/even-if-accidental-the-loss-of-lois-lerners-e-mails-is-evidence-of-problems-at-the-irs/>.
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Posted in campaign finance <http://electionlawblog.org/?cat=10>, tax law
and election law <http://electionlawblog.org/?cat=22>
"Cronies, corruption and cash: Lawrence Lessig on why we need a
super PAC to end all super PACs" <http://electionlawblog.org/?p=62476>
Posted on June 18, 2014 6:58 am <http://electionlawblog.org/?p=62476>by
Rick Hasen <http://electionlawblog.org/?author=3>
Salon Q & A
<http://www.salon.com/2014/06/18/teaching_us_to_hate_each_other_lawrence_lessig_on_his_super_pac_to_end_all_super_pacs/>.
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Posted in campaign finance <http://electionlawblog.org/?cat=10>
House Oversight Committee Issues Staff Report on IRS Mess
<http://electionlawblog.org/?p=62474>
Posted on June 18, 2014 6:57 am <http://electionlawblog.org/?p=62474>by
Rick Hasen <http://electionlawblog.org/?author=3>
You can now read How Politics Led the IRS to Target Conservative
Tax-Exempt Applicants for their Political Beliefs
<http://oversight.house.gov/wp-content/uploads/2014/06/How-Politics-Led-to-the-IRS-Targeting-Staff-Report-6.16.14.pdf>.
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Posted in campaign finance <http://electionlawblog.org/?cat=10>, tax law
and election law <http://electionlawblog.org/?cat=22>
"Democrats Griping About False Ads Respond With Deception"
<http://electionlawblog.org/?p=62472>
Posted on June 18, 2014 6:52 am <http://electionlawblog.org/?p=62472>by
Rick Hasen <http://electionlawblog.org/?author=3>
Bloomberg reports.
<http://www.bloomberg.com/news/2014-06-18/democrats-griping-about-false-ads-respond-with-deception.html?alcmpid=alcmpid=politics>
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Posted in campaign finance <http://electionlawblog.org/?cat=10>,
campaigns <http://electionlawblog.org/?cat=59>
"IRS chief promises stricter rules for 'dark money' nonprofit
groups; Expect new round of proposed regulations during early 2015?
<http://electionlawblog.org/?p=62470>
Posted on June 18, 2014 6:50 am <http://electionlawblog.org/?p=62470>by
Rick Hasen <http://electionlawblog.org/?author=3>
CPI report:
<http://www.publicintegrity.org/2014/06/18/14960/irs-chief-promises-stricter-rules-dark-money-nonprofit-groups>
The Internal Revenue Service will propose new and specific rules
defining how much money "social welfare" nonprofits may spend on
political campaigns, Commissioner John Koskinen
<http://www.wjla.com/articles/2013/12/john-koskinen-confirmed-to-lead-irs-98397.html>
said Tuesday during an interview for an upcoming Center for Public
Integrity <http://www.publicintegrity.org> investigative report.
Such rules could curb the influence of "dark money" nonprofits
engaging in overt political activity that proliferated
<http://www.opensecrets.org/outsidespending/nonprof_summ.php> after
the U.S. Supreme Court's /Citizens United v. Federal Election
Commission
<https://www.publicintegrity.org/2012/10/18/11527/citizens-united-decision-and-why-it-matters>/
decision in 2010.
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Posted in campaign finance <http://electionlawblog.org/?cat=10>, tax law
and election law <http://electionlawblog.org/?cat=22>
The Political Thriller Published by the Moritz College of Law
<http://electionlawblog.org/?p=62416>
Posted on June 18, 2014 6:07 am <http://electionlawblog.org/?p=62416>by
Heather Gerken <http://electionlawblog.org/?author=6>
Serious empirical research rarely reads like a political thriller, but
"The New Soft Money: Outside Spending in Congressional Elections"
<http://moritzlaw.osu.edu/thenewsoftmoney/> --- written by Dan Tokaji
and Renata Strause* and published by Ohio State's Moritz College of Law
--- is one of those rare exceptions. Even a cynic about
campaign-finance reform will find the details in this report to be
hair-raising. "The New Soft Money" doesn't just describe how money
influences campaigns and governance. It also provides compelling,
granular details about the transmission lines that have been erected
between outside groups and the candidates and parties with whom they are
not "coordinating." Many of those details will be familiar to political
insiders, but they'll be unnerving for everyone else. The report
provides compelling evidence of just how much things have changed since
the early 2000s.
"The New Soft Money" offers a deep dive into the current state of
outside spending. The research is largely qualitative; Tokaji and
Strause interviewed an impressive number of political insiders
(candidates, political consultants, staffers, and the like) in order to
find out how outside money moves through the system. The report
resembles the record amassed during the /McConnell/ litigation, except
in several respects it's deeper and more detailed than what the Supreme
Court relied on when it upheld the constitutionality of the bulk of
McCain-Feingold.
This isn't a report for true believers on either side of the issue.
Tokaji and Strause obviously have a view about reform, but they are
very careful not to overstate their findings. Reform advocates will be
disappointed that the report insists that there's no smoking gun
evidence of money being traded for votes. Those who argue that
independent spending is just about individual speech rights will have to
concede how profoundly outside money is shaping our politics.
You should read the report yourself, particularly the chapters detailing
how outside groups "cooperate," as Tokaji and Strause euphemistically
put it, while avoiding the legal prohibitions on coordination. I was
struck both by how hidden some of these interactions are and by how
open, even brazen the rest are.
Networks facilitate the hidden cooperation between candidates and
outside donors. Everyone knows everyone else in politics, and most of
the "everyones" are sophisticated enough to be careful about the game
they are playing on the coordination front. As a result, as one of the
interviewees said, "you hear things" even if no one from the campaign
ever speaks directly to an outside group. Other times, messages are
deliberately passed by a "friend of a friend of a friend," to quote
another insider.
While much of the networking is hidden from view, political operatives
also use public tools -- the mechanisms and strategies that we often
bless as "transparent" -- to tell outside spenders how best to support a
campaign. Savvy campaign heads become "the conductor" as they signal
their messaging strategy in surprisingly public ways. Some issue press
releases they know that the media won't pick up, but outside groups
will. Others deliberately use journalists to send "smoke signals" to
outsider funders. B-roll footage (high-resolution photos and clips) are
embedded into the website for outside groups to find. Donor lists are
shared before they are disclosed to the FEC in order to give outside
groups a leg-up on fundraising. Information also runs from the outside
groups to the candidates. Vote alerts and scorecards -- long a tool of
public-interest groups -- have become mechanisms for putting pressure on
politicians. If outside groups are scoring this or that vote,
politicians would be foolish not to pay attention.
Political scientists tend to prefer hard, quantitative data to the type
of qualitative data found in this report, often with good reason. But
we shouldn't underestimate the importance of Tokaji and Strause's
findings. First, while political scientists can map networks, quantify
spending, and run large regressions using big data sets, they can't
provide the granular and disturbing detail that Strause and Tokaji offer
about how things actually work in practice. Second, it helps a lot
that Tokaji and Strause are both lawyers housed in an academic
environment. They bring an academics' care to their research, but they
also possess the lawyer's keen sense of what matters to judges and why.
Perhaps that's why this report bears a noteworthy resemblance to the
record on which the Supreme Court relied in upholding McCain-Feingold
(which was also prepared in large part by lawyers). If anyone can
change Justice Kennedy's mind about the distinction he drew between
"ingratiation and access," on the one hand, and "corruption," on the
other, it's a report like this one. It's hard to imagine that the world
Strause and Tokaji describe looks anything like the one Justice Kennedy
contemplated when he wrote /Citizens United/.
The truth is, the report changed my mind as well and thereby provided
yet another reason why qualitative evidence matters. I have heard
countless officials tell me how much they fear the threat of outside
spending, particularly during a primary. I've always taken those
complaints with a grain of salt. Politicians are, after all, among the
most risk-averse creatures I know, and the numbers don't always back up
their concerns (incumbents don't lose that often, and outside spending
doesn't dominate every race). But the hard data can be misleading.
When you read through the report, you realize pretty quickly that
outside groups don't have to take down that many incumbents or spend in
that many primaries to influence politicians. Outside groups just
have to do it every now and then for their threat to be a serious one.
Those episodic interventions --- plus scorecards and smoke signals and
"press releases" that aren't for the press and b-rolls tucked away on
campaign websites -- are all you really need to cement the ties between
funders on the outside and policymakers on the inside. Whether that's
enough to convince you that the system is in need of reform depends very
much on your normative commitments. But facts matter, too, and the
facts in this report are important no matter which side of this fight
you are on.
/*In the interest of full disclosure, I should note that I like Dan and
Renata immensely (I defy you to find someone in the academy who
doesn't). I also encouraged them both to take part in this project
(which turned out to be even more important than I'd thought). /
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Posted in campaign finance <http://electionlawblog.org/?cat=10>,
Uncategorized <http://electionlawblog.org/?cat=1> | Tagged Campaign
finance <http://electionlawblog.org/?tag=campaign-finance-2>, dark money
<http://electionlawblog.org/?tag=dark-money>, outside spending
<http://electionlawblog.org/?tag=outside-spending>, soft money
<http://electionlawblog.org/?tag=soft-money>
--
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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