As one of the proponents of a "base closing commission approach" that Bob mentions (a Congressional agreement to allow an up or down vote on a cfr proposal) I respectfully submit that such a proposal was not contrary to defering to the action Congress finally took. For many years it appeared that the leadership of Congress would prevent an "up or down" vote on reform, despite the fact that it appeared likely such a vote, if held, would be in favor of reform. In fact (absent the guarantted vote a base closing approach would have made possible) the reform rebels in Congress had to go through quite extraordinary gyrations to get a vote in both Chambers. Beating back a filibuster in the Senate, achieving a successful discharge petition in the House, and then avoiding a Conference Committee graveyard by thereafter passing the House bill in the Senate , where all happy but hardly predictable victories. But to Bob's point--either approach assumed there was a Congressional majority !
to change a system they had determined was offensive and corrupt, and determined Congressional leaders willing to go to great lengths to prevent a vote on such a proposal.
As for Bob's argument that Congress said nothing about the "political committee" issue when drafting and passing BCRA (and therefore made a substantive decision on the matter currently before the FEC), there were many aspects of FECA which Congress did not alter or restate--yet they all remain law as well.
Trevor Potter
----Original Message-----
From: owner-election-law_gl@majordomo.lls.edu on behalf of Bauer, Bob-WDC
Sent: Wed 1/21/2004 9:02 PM
To: 'Steve Weissman '; 'election-law@majordomo.lls.edu '
Cc:
Subject: RE: Bauer views on 527s and Tobin/Foley article
Steve is of course right about the law on officeholder/candidate
solicitation rules, but wrong, I beieve, that I have missed something.
Setting aside for the moment any question about my phrasing, it is clear in
my argument that parties are subject to financing restrictions not imposed
on other organizations, including "527s", precisely because they are
controlled or closely associated with federal candidates and officeholders.
Perhaps I should have said "outside the context of political parties and
those closely affiliated with or controlling them, namely, federal
candidates and officeholders." Yet the statute applies the Federal election
activity restrictions in this "context", and not in others NOT involving
control by or association with the officeholders or candidates whose
activities give rise to the concern with corruption or its appearance. The
restrictions on parties follows from the concern with the activities of
officeholders--they are hardly to be viewed as independent of each other.
The concerns I have with the Foley and Tobin argment deemed by Steve not
"inappropriate", is that it disregards the specific choices made by
Congress. Steve's response undercores the concern I have. He says:
"In this section, there is no mention of -- and no mention of or provision
for --candidate/officeholder solicitations of any kind for the 527 groups at
issue."
Correct. And it is also true that Congress placed restrictions specifically
on parties, prohibiting them from soliciting funds for, or making or
directing donations to, 527 organizations. So the drafters were aware of
the existence of 527s--indeed the Congress had imposed broader IRS reporting
requirements on them only a couple of years before--and elected NOT to
regulate their activities still more extensively, or comprehensively, than
appears in the statute. And the Court in McConnell made much of the cautious
adjustment in the law the Congress had made over time in proceeding in
"incremental steps".
Foley and Tobin nonetheless advance an argument in favor of changing by
regulation what the Congress declined to address in a statute enacted a
little over a year ago. To do so, they have to construct an argument that,
for the reasons I suggested, does not hold up under standard legal analysis
as a basis for regulatory, rather than Congressional, action.
Last note--not at all directed at Foley and Tobin, or anyone else for that
matter. The "reform" movement is concerned broadly with promoting democratic
values and participation. Yet the means chosen to effect these obviously
worthy goals have not always appeared to match up with this aspiration.
Some years ago, when Congress appeared unlikely to move on reform, some in
the community argued for a "base-closing commission" procedure to break the
stranglehold of recalcitrant, hopeless self-interested elected officials.
Then when Congress did act, the case for the statute was defended--in the
end also by the McConnell Court--as the most recent in a series of carefully
thought-out legislative measures advanced by officeholders historically
concerned with corruption and its appearance. Those elected officials who
once needed the discipline of a base-closing commission approach, now
merited great "deference". Now that Congress has acted, an effort is made
to disregard the specific legislative choices and revisit them, with
participation limited to political actors, activists and editorial boards,
through the administrative agency process. The results have some
considerable significance for the ability of citizens to organize and
promote their positions on issues; and yet all of this is proposed to be
done without Congressional participation or endorsement--through the
struggles and arguments of a limited community of individuals and
organizations with interests in the outcome, all of them speaking a language
that few can understand in a process that few can or do follow. This does
not seem to me the ideally democratic process for the design and debate of
rules of political competition and participation.
-----Original Message-----
From: Steve Weissman
To: election-law@majordomo.lls.edu
Sent: 1/21/2004 1:11 PM
Subject: Re: Bauer views on 527s and Tobin/Foley article
In the interesting article on his website (see p.4), Bob Bauer argues
against Foley's and Tobin's effort to recommend concrete criteria
(BCRA's
definition of "federal election activities") for the "major purpose"
test
that the FEC uses to help decide whether a Section 527 political
organization or other nonprofit group is a political committee under
FECA.
In making his case, Bauer emphasizes that Congress "did not elect" to
apply
the definition of federal election activities in Section 431 (20)(A)
"outside the context of political parties" which have a "close
relationship"
with "candidates and officeholders."
But this is not completely accurate. In section 441 (i)(e)(4),Permitting
Certain Solicitations, Congress referred specifically to the federal
elections activities definition in providing that candidates and
officeholders could not solicit not more than $20,000 per year on behalf
of
501c nonprofit organizations (and from individuals only, not
corporations or
unions) for two of the four defined federal election activities (voter
registration within 120 days of an election and voter id,
get-out-the-vote,
generic campaign activity). Candidates and officeholders could not
solicit
anything at all for 501c groups whose activities or principal purpose
involved the third activity -- public communications promoting or
attacking
candidates. (The fourth federal election activity, services by party
officials spending more than a quarter of their time on federal
elections,
is not applicable to 501c nonprofit groups). In this section, there is
no
mention of -- and no mention of or provision for --
candidate/officeholder
solicitations of any kind for the 527 groups at issue.
Thus, contrary to Bob's argument, Congress used the definition of
federal
election activities not soley to refer to restrictions on political
parties,
but also as criteria for determining permissions and limitations for
candidate/officeholders solicitations for nonprofit organizations.
Whatever
one thinks of the result, it does not seem inappropriate for Tobin and
Foley
to suggest similar criteria (which they do not claim to be legally
mandatory
from BCRA) as they attempt to develop means of regulating 527s and other
nonprofits primarily engaged in influencing elections.
Steve Weissman
Associate Director for Policy
Campaign Finance Institute
1990 M. St. NW Suite 380
Washington, DC 20036
202-969-8890
sweissman@cfinst.org
Steve Weissman
Associate Director for Policy
Campaign Finance Institute
1990 M. St. NW Suite 380
Washington, DC 20036
202-969-8890
sweissman@cfinst.org
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