[EL] dark money

[Smith, Brad]

Justin writes:
"CCP in The Hill<http://thehill.com/blogs/congress-blog/politics/219926-dark-money-still-a-bit-player>: What would you call an election in which over 95 percent of campaign spending is funded by groups that publicly disclose the names and addresses of their donors to the Federal Election Commission, along with information on donors’ employers and occupations?

"Though the point is valid, this op-ed assumes that spending disclosed to the FEC is the relevant denominator, and focuses on the portion with (some) donors disclosed.  But remember, some campaign spending is not disclosed to the FEC at all<http://summaryjudgments.lls.edu/2014/05/the-drunkards-search-for-money-in.html>, and we have no idea whether that number is large or small.  That’s not itself an argument for disclosing all the rest.  But it’s important to keep in mind the spending nobody knows about before trumpeting transparency based on what’s visible under the streetlight."

Whoa. Beep beep beep. Back up. We calculate these numbers by taking the estimates of good pro-"reform" groups railing against "dark money," such as the Center for Responsive Politics, as to the total amount of "dark money." Then we divide by spending reported by the FEC.

To the extent that more money is spent that is not reported to the FEC, that increases the denominator by one dollar for every such dollar spent. But what money aren't the reform groups including in the numerator? Some of this would appear to be money that is not reported to the FEC. If that is correct (these organizations are quite thin about how they calculate the number, witness James Bopp's recent exchange with the Wesleyan Project), then the percentage of "dark money" is actually lower, not higher.

To the extent that "dark money" is not included in either the numerator or the denominator, we don't know the ultimate change in its percentage of political spending. But wait a minute - what spending is included as dark money that is not reported to the FEC? It would have to be information that was never reported to the FEC - that is, issue advocacy, but not including electioneering communications. Is there any reason to believe that issue advocacy that is not an electioneering communication is on the rise? No. In fact, it is almost certainly in decline since organizations once restricted to issue advocacy can now make independent expenditures and electioneering communications. So if we want to include issue advocacy (and where, exactly, is the line on what we would then call "dark money" - spending on research reports (like Elizabeth Warren wants reported, at least if it doesn't support her ideas of good public policy)? spending on TV documentaries like "The Roosevelts?" Spending on TV commercial programming like the upcoming Tea Leoni series about a gutsy, heroic, (entirely fictional, no resemblance to any person living or dead is intended) Secretary of State?  Voter registration drives by c3 organizations such as Public Citizen? 

To the extent Justin would include any of these things in "dark money," he has just expanded the term beyond any prior definition I've heard of "dark money," and called for a more massive expansion of the compulsory disclosure regime than anything I've seen before. 

In short, we use the definition used by the groups that are acting most alarmed about so-called "dark money" as our numerator. Our denominator is, if anything, too small, to the extent that some of what these groups call "dark money" is not reported to the FEC.

Dark money? The hokum scare of our modern elections, and perhaps the single biggest obstacle to serious discussion of disclosure reform.

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 Justin Levitt [levittj at lls.edu]
Sent: Thursday, October 09, 2014 6:01 AM
To: law-election at UCI.EDU
Subject: [EL]  ELB News and Commentary 10/9/14

Theory to Practice: The Democracy Facts Label Goes Live<http://electionlawblog.org/?p=66562>
Posted on October 9, 2014 2:56 am<http://electionlawblog.org/?p=66562> by Justin Levitt<http://electionlawblog.org/?author=4>

Yesterday, Rick linked<http://electionlawblog.org/?p=66517> to a press release from the San Francisco Ethics Commission, announcing the launch of a great new campaign finance dashboard<http://www.sfethics.org/ethics/2014/09/about-the-2014-campaign-finance-dashboards.html>.  The site has a few different tools to get campaign finance information, and more important, to visualize it in different ways so that the morass of data is more meaningful.  There are maps for contributions by location<http://www.sfethics.org/ethics/2013/12/board-of-supervisors-district-2-dashboard-november-4-2014-election.html>, and c<http://www.sfethics.org/ethics/2014/09/general-purpose-committee-activity.html>harts for sorting big PACs from small ones<http://www.sfethics.org/ethics/2014/09/general-purpose-committee-activity.html>; there are graphs for lobbyist<http://www.sfethics.org/ethics/2014/08/political-contributions-made-arranged-or-delivered-by-lobbyists-to-candidates-for-local-office-in-20.html> contributions<http://www.sfethics.org/ethics/2014/08/political-contributions-made-arranged-or-delivered-by-lobbyists-to-candidates-for-local-office-in-20.html> and infographics of major donors<http://www.sfethics.org/ethics/2014/09/major-donors-2014.html>.

[cid:part12.01070100.05000607 at lls.edu]<http://electionlawblog.org/archives/DemocracyFacts.jpg>But the piece I’m most proud of is the interface<http://www.sfethics.org/ethics/democracyfacts.html> for quickly communicating information about the funding profile and major funders of ballot measures.  It’s modeled after my proposal for a “Democracy Facts” label, described in this paper<http://ssrn.com/abstract=1676108> and highlighted in this blog post<http://electionlawblog.org/archives/017415.html> almost exactly 4 years ago.  The idea is to borrow the familiar design of the Nutrition Facts labels, focusing on the few most important campaign funding facts real people actually might want to know, in readily digestible and comparable fashion.

The individual pieces of information on the label can be tailored to local needs and desires; there are lots of potential variations.  The San Francisco Ethics Commission chose the info that suited them best.

And the technical wizards on the implementation team improved on the idea in many different ways.  Among the upgrades: given the web interface, each individual major donor is clickable, and linked to a Google search providing a bit more context about the person or entity involved.  Community feedback, I understand, has thus far been profoundly positive.

Last year, Heather Gerken<http://www.law.yale.edu/faculty/HGerken.htm> had the opportunity to see her Democracy Index<http://www.law.yale.edu/faculty/democracyindex.htm> come to life, when Pew released its Elections Performance Index<http://www.pewstates.org/research/reports/elections-performance-index-85899445029>.  She wrote<http://electionlawblog.org/?p=47114> about the experience of watching the real-life realization of her powerful policy proposal to render information about the electoral environment more accessible and relevant, and thereby more meaningful.

She was right.  It feels great.

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10/9 FEC Meeting: Citizens United, McCutcheon & More<http://electionlawblog.org/?p=66559>
Posted on October 9, 2014 2:49 am<http://electionlawblog.org/?p=66559> by Justin Levitt<http://electionlawblog.org/?author=4>

Late Wednesday, the FEC posted several drafts of rules to be considered at a meeting Thursday.  One of the drafts<http://www.fec.gov/agenda/2014/documents/mtgdoc_14-53-a.pdf> implements the Supreme Court’s decision in Citizens United, removing prohibitions on labor and corporate spending on independent political activity; it would also allow corporations and labor organizations to contribute to others engaging in independent political activity, including SuperPACs and regular PACs with separate independent-expenditure accounts.

Another<http://www.fec.gov/agenda/2014/documents/mtgdoc_14-51-a.pdf> implements the Supreme Court’s decision in McCutcheon, removing the aggregate limits on contributing to candidates, party committees, and PACs.  Still another<http://www.fec.gov/agenda/2014/documents/mtgdoc_14-52-a.pdf> announces an upcoming rulemaking to consider further refinement in light of McCutcheon, including potential adjustments to existing earmarking, affiliation, and disclosure rules to help prevent circumvention of the existing base limits on contributions.

The FEC also released two draft advisory opinions.  The first is an AO requested by the DNC and RNC about whether they can fundraise separately for the 2016 presidential nomination conventions, in addition to limits on donations to the party committees generally.  Here’s the “yes” option<http://www.fec.gov/agenda/2014/documents/mtgdoc_14-50-b.pdf>; here’s the “no” option<http://www.fec.gov/agenda/2014/documents/mtgdoc_14-50-a.pdf>.

The second is an AO requested by the two dueling Randolph-Macon College professors looking to replace Eric Cantor, about whether the college can continue paying fringe benefits while the candidates are on leave.  For those convinced that the FEC is hopelessly divided based on rank partisanship for every possible issue (I’ve got doubts<http://ssrn.com/abstract=2239491>), I look forward to a 3-3 deadlock with the 3 Republican nominees voting to allow the college to pay the Republican candidate, and a 3-3 deadlock with the 3 Democratic nominees voting to allow the same college to pay the Democratic candidate.

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Posted in campaign finance<http://electionlawblog.org/?cat=10>, federal election commission<http://electionlawblog.org/?cat=24>Edit<http://electionlawblog.org/wp-admin/post.php?post=66559&action=edit>
On Party Fundraising for 2016 Conventions<http://electionlawblog.org/?p=66554>
Posted on October 9, 2014 2:48 am<http://electionlawblog.org/?p=66554> by Justin Levitt<http://electionlawblog.org/?author=4>

About those AOs up later today:  the Campaign Legal Center and Democracy 21 have<http://www.campaignlegalcenter.org/index.php?option=com_content&view=article&id=2628:october-8-2014-watchdogs-urge-fec-to-reject-rnc-a-dnc-request-to-open-soft-money-loophole-for-convention-funds&catid=63:legal-center-press-releases&Itemid=61> opinions<http://www.campaignlegalcenter.org/images/CLC_D21_Comments_on_Draft_AO_2014_12.pdf>.

Bauer<http://www.moresoftmoneyhardlaw.com/2014/10/facts-theories-campaign-finance-argument-convention-financing-matter-fec/> does too, highlighting that the conventions are about more than just the nominee.  As every bar in the host city can confirm.

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Posted in campaign finance<http://electionlawblog.org/?cat=10>, federal election commission<http://electionlawblog.org/?cat=24>Edit<http://electionlawblog.org/wp-admin/post.php?post=66554&action=edit>
“Rules for Provisional Ballots All Over the Map”<http://electionlawblog.org/?p=66552>
Posted on October 9, 2014 2:46 am<http://electionlawblog.org/?p=66552> by Justin Levitt<http://electionlawblog.org/?author=4>

Pam Fessler tries to make sense of the provisional ballot landscape<http://www.npr.org/blogs/itsallpolitics/2014/10/09/354534487/rules-for-provisional-ballots-all-over-the-map> for NPR.

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Posted in provisional ballots<http://electionlawblog.org/?cat=67>Edit<http://electionlawblog.org/wp-admin/post.php?post=66552&action=edit>
Right Questions, Wrong Answers in Voter ID Decision<http://electionlawblog.org/?p=66549>
Posted on October 9, 2014 2:46 am<http://electionlawblog.org/?p=66549> by Justin Levitt<http://electionlawblog.org/?author=4>

Prof. Chris Elmendorf<https://law.ucdavis.edu/faculty/elmendorf/>, over at the Election Law @ Moritz<http://moritzlaw.osu.edu/election-law/article/?article=12965> site, dives deep<http://moritzlaw.osu.edu/election-law/article/?article=12965> on the 7th Circuit’s WI voter ID decision<http://moritzlaw.osu.edu/electionlaw/litigation/documents/Frank72.pdf>.  It begins:

Earlier this week Rick Hasen blasted Judge Easterbook’s opinion upholding Wisconsin’s voter ID requirement as cavalier with the facts and “heartless and dismissive” in tone. But in one respect the opinion is extremely helpful: it asks the right questions.

Three questions foregrounded by Easterbook are particularly important to the future of the Voting Rights Act:

What limiting principle keeps the Section 2 “results test” from obligating every state to tinker with its election machinery until rates of voter participation by race have been equalized? Insofar as Section 2 conditions state obligations on past or present societal discrimination, how does this square with the 14th and 15th Amendments, which by their terms reach only state action? To what extent are the “fact” questions in Section 2 cases questions that district judges should try to answer on the basis of expert testimony, as opposed to questions of belief, faith, or policy that ought to be settled by appellate courts as a matter of law?

As this post will explain, Judge Easterbook’s answers to these questions are not convincing. But unless proponents of robust voting rights protections come forth with better answers—answers that a conservative judge can appreciate—Easterbook’s opinion is likely to prove a harbinger of things to come at the Supreme Court.

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Posted in election law and constitutional law<http://electionlawblog.org/?cat=55>, voter id<http://electionlawblog.org/?cat=9>, Voting Rights Act<http://electionlawblog.org/?cat=15>Edit<http://electionlawblog.org/wp-admin/post.php?post=66549&action=edit>
Roundup on the GAO Report on Voter ID<http://electionlawblog.org/?p=66547>
Posted on October 9, 2014 2:44 am<http://electionlawblog.org/?p=66547> by Justin Levitt<http://electionlawblog.org/?author=4>

Politico<http://www.politico.com/story/2014/10/voter-id-laws-minorities-111721.html>, Natl Journal<http://www.nationaljournal.com/domesticpolicy/voter-id-laws-can-decrease-minority-and-youth-turnout-20141008>, the Wall St. Journal<http://blogs.wsj.com/washwire/2014/10/08/gao-study-finds-voter-id-laws-reduced-turnout-in-tennessee-kansas/>, and the Washington Times<http://www.washingtontimes.com/news/2014/oct/8/photo-id-laws-do-hurt-voter-turnout-study/> discuss the GAO report; Sec. Kobach responds<http://www.kansas.com/news/politics-government/article2629693.html>.

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Posted in The Voting Wars<http://electionlawblog.org/?cat=60>, voter id<http://electionlawblog.org/?cat=9>Edit<http://electionlawblog.org/wp-admin/post.php?post=66547&action=edit>
Redistricting Made Simple<http://electionlawblog.org/?p=66545>
Posted on October 9, 2014 2:43 am<http://electionlawblog.org/?p=66545> by Justin Levitt<http://electionlawblog.org/?author=4>

Change IL<http://www.changeil.org/> has a great new animated digital tool<http://app.newsbound.com/stacks/redistrict/redistrict_il/public> explaining how redistricting works.  Even those who don’t like redistricting commissions have 18 slides to love.

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“Dark Money Still a Bit Player”<http://electionlawblog.org/?p=66543>
Posted on October 9, 2014 2:43 am<http://electionlawblog.org/?p=66543> by Justin Levitt<http://electionlawblog.org/?author=4>

CCP in The Hill<http://thehill.com/blogs/congress-blog/politics/219926-dark-money-still-a-bit-player>: What would you call an election in which over 95 percent of campaign spending is funded by groups that publicly disclose the names and addresses of their donors to the Federal Election Commission, along with information on donors’ employers and occupations?

Though the point is valid, this op-ed assumes that spending disclosed to the FEC is the relevant denominator, and focuses on the portion with (some) donors disclosed.  But remember, some campaign spending is not disclosed to the FEC at all<http://summaryjudgments.lls.edu/2014/05/the-drunkards-search-for-money-in.html>, and we have no idea whether that number is large or small.  That’s not itself an argument for disclosing all the rest.  But it’s important to keep in mind the spending nobody knows about before trumpeting transparency based on what’s visible under the streetlight.

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“How Campaign Finance Laws Make Florida Governor’s Race Unique”<http://electionlawblog.org/?p=66540>
Posted on October 9, 2014 2:42 am<http://electionlawblog.org/?p=66540> by Justin Levitt<http://electionlawblog.org/?author=4>

On Miami public radio<http://wlrn.org/post/how-campaign-finance-laws-make-florida-governors-race-unique>.  According to the Campaign for Public Integrity, the campaigns of Charlie Crist and Rick Scott are responsible for about 3 percent of the spending in the race.

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Posted in campaign finance<http://electionlawblog.org/?cat=10>

--
Justin Levitt
Professor of Law
Loyola Law School | Los Angeles
919 Albany St.
Los Angeles, CA  90015
213-736-7417
justin.levitt at lls.edu<mailto:justin.levitt at lls.edu>
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