It appears that Trevor and I are warming up for a conference on BCRA we are
co-chairing next week, but in that spirit, I will add to the
point-counterpoint only this:
I have no doubt that with a base closing-type proposal, Trevor intended to
free campaign finance reform from procedural strangeholds so that the
majority could work its will. But in a speech, reprinted in part in the
Wall Street Journal in August 2, l994, Trevor also wrote as follows:
"More important, [campaign reform finance laws] often provide incumbents
with an unfair, undemocratic advantage.
Public confidence in campaign finance reform is marred by the fact that
members of Congress have a classic conflict of interest on legislation that
directly affects their own elections....We don't allow government officials
to participate in matters in which they have a direct financial interest,
yet we allow members of Congress to draft the rules for elections that
determine whether they will keep their jobs. It is hard to imagine a
clearer conflict of interest."
I heard this quite a bit in the early to the mid-90's, including in the
course of the battle over the imposition of term limits. Now in 2004, we are
expected to accept that Members have put this conflict behind them and are
owed expansive "deference" in the design of campaign finance controls.
-----Original Message-----
From: Trevor Potter
To: Bauer, Bob-WDC; Steve Weissman ; election-law@majordomo.lls.edu
Sent: 1/22/2004 9:47 PM
Subject: RE: Bauer views on 527s and Tobin/Foley article
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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