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

Mon Jun 30 16:24:03 PDT 2014

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
rhasen at law.uci.edu
http://www.law.uci.edu/faculty/full-time/hasen/
http://electionlawblog.org

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