Subject: blogging election law news: a response to Bauer
From: Rick Hasen
Date: 5/20/2004, 11:15 AM
To: "Bauer, Bob-WDC" <RBauer@perkinscoie.com>
CC: election-law <election-law@majordomo.lls.edu>
Reply-to:
rick.hasen@mail.lls.edu

A brief response to Bob's first paragraph.  I gave a more extensive excerpt from Corrado/Mann (not Ornstein/Mann) because it is on Roll Call and therefore not accessible for those who don't have a paid subscription, whereas the Broder piece is in the Washington Post, which has free registration.  Consistent with copyright laws, I always try to provide more extensive (but fair use excerpts) for those items that readers cannot see without paying.

As for the caustic reader comments, if I had received such comments about Corrado/Mann I certainly would have posted them as well.

This is the second complaint this week about what I choose to link to.  Jeffrey Hauser wrote:  "in some unintentional and hard-to-fault way, Rick's compilation of GOP 'sky is falling' links -- when the reality is that Bush + 501(c)(4)s surely is >>> Kerry + 527s -- helps further this smokescreen."  I have had other complaints in the past (in private messages) about the coverage on my blog, and whether it is biased one way or the other. 

Given these complaints, I thought now would be a good time for a response.  Perhaps my news coverage is biased in some subconscious way, but my intended criterion for linking has been that I link to all articles in major newspapers that I find on topics broadly of interest to election law. I link to most commentaries on election law as well, whether I disagree with them or not.

A blog is a sui generis type of medium.  Part of what I do is link to news (or provide news occasionally that is not covered by the media) and part of what I do is offer opinion.  In the "news" component, I try not to link to only those items that support my personal views.  Some blogs and websites, even on election law, are different---they link to articles (or to other blogs) that reinforce their own opinions about the state of the world.  There is room for both kinds of coverage in cyberspace I think.

Of course, if any listserv member or blog reader comes across articles or viewpoints to which I am not linking, send me a link in an e-mail. Chances are, as those who have done so can attest, I'll link to what you send so long as it is germane to election law.

Rick

Bauer, Bob-WDC wrote:
Not one to complain: but I cannot help but try to remedy the difference between the Ornstein/Mann posting, and the Broder posting.  The one is excerpted at some length, and the other is posted, then followed by a rebuttal, and a caustic one, from a reader. 
 
I increasingly hear from reform supporters that they did after all separate officeholders from the soft money.  And indeed they did. In return, the law invited them to follow the Bush campaign in raising hundreds of millions of dollars, by the hands of Pioneers and Rangers and the like, and decline the public funding process,  So now, if one is to take the corruption argument seriously, one can take little comfort in the fact that a federal elected officials cannot raise raise $100,000 from a corporation, but instead pursue the same amount through the individual efforts of one of its executives.
 
The "fundraising race" goes on, unabated, not because this law, in some way specific to it, has failed to curb it, but because fundraising races follow politics and not the dictates of legislators and think-tanks.
 
Another mistaken prediction only months ago: that negative campaigns would be limited by the "stand  by your ad" requirement.  Senator McCain even took to the floor to celebrate this turn of events.  This position might still seem plausible to someone without access to electricity or struggling with their cable or satellite reception. 
 
Finally, Broder is not wrong: backers of the bill denied that the statute would work unintended effects, that is, that any flow of funds away from parties, to independent organizations, would undermine the objectives of the statute.  They might have "anticipated" it, but they dismissed its significance.  In recent months, they have complained bitterly about it, and so undercut their ability to argue that they knew all along that this might happen and that it didn't threaten the overall coherence and viability of the reform.  And Broder is correct that one of the objectives of the bill was to limit the amount of money in politics, and skeptics are advised to read the floor debates.
 
 
 
-----Original Message-----
From: owner-election-law_gl@majordomo.lls.edu [mailto:owner-election-law_gl@majordomo.lls.edu]On Behalf Of Rick Hasen
Sent: Thursday, May 20, 2004 10:46 AM
To: election-law
Subject: news of the day 5/20/04

"Time Off Urged for Voting Work"

A.P. offers this report.


"Banned E-Voting Systems Likely to Be Ready Nov. 2"

The Los Angeles Times offers this report.


"Flap Over 527s Aside, McCain-Feingold is Working as Planned"

Anthony Corrado and Tom Mann have this Roll Call oped (paid subscription required). A snippet:

    McCain-Feingold was not written to bring every source of unregulated federal campaign funding within the scope of the law. Rather, it was designed to end the corrupting nexus of soft money that ties together officeholders, party officials and large donors. The law's principal goal was to prohibit elected officials and party leaders from extracting unregulated gifts from corporations, unions and individual donors in exchange for access to and influence with policymakers.

    Indeed, the law has accomplished this objective. Members of Congress and national party officials are no longer soliciting unlimited contributions for the party committees, nor are they involved in the independent fundraising efforts of the leading 527 groups. The FEC's decision to defer action, therefore, does not pose the same risk of corruption as did the soft-money decisions of the past.

Hatch Puts on Hold 'Arnold '08"

Roll Call offers this report, which begins: "California Gov. Arnold Schwarzenegger (R) shouldn't start planning a 2008 presidential campaign just yet. Senate Judiciary Chairman Orrin Hatch (R-Utah), who first raised such a possibility last year, said Wednesday that it may take a while to remove the constitutional obstacle preventing Schwarzenegger or any other foreign-born U.S. citizen from running for president of the United States." I'm sure our governor's reaction will be that the news is "fantastic."

"What McCain-Feingold Didn't Fix"

David Broder offers this column. About the column, a blog reader writes:

    Check out this David Broder column today, the upshot of which is the surprising -- and to my mind ridiculous -- conclusion that BCRA has "produce[d] more unintended negative consequences than benefits."

    Broder seems to assume -- without even providing any arguments in support on the points -- that the spending of money on elections (including by the candidates) necessarily is in and of itself a bad thing, and that a (or the) purpose of BCRA was to get money out of campaigns. No mention of corruption, of the role of parties in making officeholders beholden to contributors, etc.

    And he is shocked, shocked, by the "unanticipated" phenomenon that folks are actually raising hard money (including on the Internet!) in amounts permitted by BCRA, and choosing not to accept public financing when hard money contributions are more lucrative -- as though the statute doesn't contemplate exactly that.

Thanks for writing. I would add that Broder is simply wrong as a factual matter that McCain-Feingold backers "did not anticipate that the ban would simply divert the flow of big contributions into other channels." Indeed, this was one of the main arguments made against the law when it was being debated.

"FEC Ruling Mocks Campaign Reform"

The Virginia Pilot offers this editorial.


Canadian Free Speech Decision Roundup

Brett Marston has it all here.


Solum on Developments in Judicial Appointments Process

Larry Solum concludes that despite much talk about compromise in yesterday's developments, not much has changed. See here.


Corrado on Soft Money

Anthony Corrado has posted National Party Fundraising Remains Strong, Despite Ban on Soft Money on the Brookings website.


Electronic Voting Machine Humor from The Onion

See here.


Anderson and Richie on Vieth

See this commentary by John Anderson and Rob Richie that appeared in this week's Legal Times.


"Skirting law, some shift use of campaign funds for primary"

The Miami Herald offers this report, with the following subhead: "The federal campaign finance law allows candidates to raise -- and sometimes to spend -- money during a primary even if it's earmarked for the general election." Thanks to Dan Smith for the pointer. 
-- 
Rick Hasen
Professor of Law and William M. Rains Fellow
Loyola Law School
919 South Albany Street
Los Angeles, CA  90015-1211
(213)736-1466
(213)380-3769 - fax
rick.hasen@lls.edu
http://www.lls.edu/academics/faculty/hasen.html
http://electionlawblog.org
    

-- 
Professor Rick Hasen 
Loyola Law School 
919 South Albany Street 
Los Angeles, CA  90015-0019 
(213)736-1466 - voice 
(213)380-3769 - fax 
rick.hasen@lls.edu 
http://www.lls.edu/academics/faculty/hasen.html 
http://electionlawblog.org