The terms" soft money" was used in two principle ways in the debate over
the enactment of BCRA. First, "soft money" (a/k/a 'non-federal money' in
the RNC briefs and 'sewer money' in the NY Times editorial page) was the
term commonly used to describe any corporate and labor contributions and
"large" (over $20,000) individual contributions received and banked by
the national party committees-funds they were not allowed to receive
under a facial reading of the FECA.
"Soft money" was also used to refer to funding for "sham issue"
advertising by corporations and unions in the midst of federal election
campaigns--sources that were not and are not permitted by federal law to
make contributions OR independent expenditures in federal elections.
-----Original Message-----
From: Kelner, Robert [mailto:rkelner@cov.com]
Sent: Friday, May 21, 2004 10:33 AM
To: Trevor Potter; RBauer@perkinscoie.com; marty.lederman@comcast.net;
TMANN@brookings.edu; rick.hasen@lls.edu; election-law@majordomo.lls.edu
Subject: Re: news of the day 5/20/04
Maybe I'm the one missing something, but I think Trevor's response tends
to prove my point. What we are seeing now is that the media and the
public understand "soft money" (correctly in my view) to include all
"large" corporate and individual contributions in connection with
federal elections, regardless of whether the contributions are made to
political parties or to special interest groups that are assuming the
role of political parties. If Trevor thinks soft money applies only to
party contributions, as his response to me seems to suggest, I would
observe only that the term has assumed a much more expansive and vague
connotation in the public mind, as reflected in the media. The
distinction between party soft money and special interest soft money was
not one that the Sponsors cared to highlight while BCRA was pending
before Congress. Many Americans and the media understandably came to
expect that BCRA would ban soft money generally, but have now awakened
to the fact that BCRA was an anti-party bill, not an "anti-soft money"
bill.
--------------------------
-----Original Message-----
From: Trevor Potter <TP@Capdale.com>
To: Kelner, Robert <rkelner@cov.com>; Bauer, Bob-WDC
<RBauer@perkinscoie.com>; marty.lederman@comcast.net
<marty.lederman@comcast.net>; TMANN@brookings.edu <TMANN@brookings.edu>;
rick.hasen@lls.edu <rick.hasen@lls.edu>; election-law@majordomo.lls.edu
<election-law@majordomo.lls.edu>
Sent: Thu May 20 20:46:59 2004
Subject: RE: news of the day 5/20/04
I must be missing something-why aren't the two the same?
-----Original Message-----
From: Kelner, Robert [mailto:rkelner@cov.com]
Sent: Thu May 20 19:23:41 2004
To: Trevor Potter; Bauer, Bob-WDC; marty.lederman@comcast.net;
TMANN@brookings.edu; rick.hasen@lls.edu; election-law@majordomo.lls.edu
Subject: RE: news of the day 5/20/04
I don't recall any of the Sponsors publicly correcting the numerous
supporters of BCRA who portrayed it simply as a ban on "soft money," as
opposed to a ban on "large soft money contributions to party
committees." Certainly most of the public did not appreciate such a
distinction, and no one was rushing to correct the misimpression.
-----Original Message-----
From: owner-election-law_gl@majordomo.lls.edu
[mailto:owner-election-law_gl@majordomo.lls.edu] On Behalf Of Trevor
Potter
Sent: Thursday, May 20, 2004 4:55 PM
To: Bauer, Bob-WDC; marty.lederman@comcast.net; TMANN@brookings.edu;
rick.hasen@lls.edu; election-law@majordomo.lls.edu
Subject: RE: news of the day 5/20/04
Bob's message conflates the legislation's Sponsors with all those who
voted and spoke for it. The Sponsors almost always talked of removing
the large soft money contributions to party committees, often solicited
by sitting federal officeholders, from of the federal system. They spoke
fondly of grass roots political activity and small donor
fundraising.They predicted (contrary to many opponents of BCRA) that the
national political parties would not only survive the absence of soft
money, but flourish. The figures to date (with parties raising more hard
money this cycle than they raised in hard AND soft last cycle at this
point) seem to prove their point--and to prove that the sponsors (at
least) were not anti-money, but only anti large soft money
contributions. -----Original Message-----
From: owner-election-law_gl@majordomo.lls.edu
[mailto:owner-election-law_gl@majordomo.lls.edu] On Behalf Of Bauer,
Bob-WDC
Sent: Thursday, May 20, 2004 4:32 PM
To: 'marty.lederman@comcast.net'; 'TMANN@brookings.edu';
'rick.hasen@lls.edu'; 'election-law@majordomo.lls.edu'
Subject: Re: news of the day 5/20/04
Your comments about the sponsors and the irrelevance of their motives
would not sit well with them, much less be compatible with their filings
and positions with agencies and courts.
I disagree that the bill ios "extremely" ill-suited to the purpose of
the bill. I am happy to cite to the many citations to the "explosion" in
party and electioneering communication soft money. But in any event, I
cannot deduce purpose from bill structure as a general rule: many
legislative enactments are poorly suited to their intended purpose.
-----Original Message-----
From: Marty Lederman <marty.lederman@comcast.net>
To: Bauer, Bob-WDC <RBauer@perkinscoie.com>; 'Thomas Mann'
<TMANN@brookings.edu>; Rick.Hasen@lls.edu <Rick.Hasen@lls.edu>;
election-law@majordomo.lls.edu <election-law@majordomo.lls.edu>
Sent: Thu May 20 13:05:29 2004
Subject: Re: news of the day 5/20/04
Actually, the "motives" that matter are not those of the bill's
supporters outside Congress, or of its champions on the Post's op-ed
page, or of a few representatives or sponsors, but those of Congress as
a whole, and of the United States in its constitutuional defense of the
statute. And therefore I think it's fair to say that the object of the
bill was not to reduce the amount of money in campaigns: Indeed, if
that had been the objective, the bill would have been extremely
ill-crafted to serve its purposes.
----- Original Message -----
From: "Bauer, Bob-WDC" <RBauer@perkinscoie.com>
To: "'Thomas Mann'" <TMANN@brookings.edu>; <Rick.Hasen@lls.edu>;
<election-law@majordomo.lls.edu>
Sent: Thursday, May 20, 2004 3:41 PM
Subject: RE: news of the day 5/20/04
I apologize for the mistake of citing to Ornstein, not Corrado. I
will be happy to engage with the points of the article and will do so
later in the day, with more time to do so. But I cannot help noting
this passage:
BCRA was not designed to reduce the amount of money in campaigns. Many
of us involved in the effort believe more money is needed. The
problem is with how it is raised and distributed. Hyperbolic floor
statements by some supporters cannot undue this reality.
In an astute comment passed on to me by colleague Brian Svoboda (which
I will simply restate more in my terms, through no fault of his own),
the statements of those who passed the bill simply count for me than
the intentions of private citizens and organizations that lobbied for
its passage. However the law was designed, many of the Members of
Congress supporting the law believed that it would have the effect of
reducing the amount of money in politics. Dismissing their beliefs as
"hyperbolic"--and
I
do not believe that the adjective fits--ignores one salient point:
since these are the men and women who have the elected authority to
pass the
law,
their motivations and views actually matter.
-----Original Message-----
From: Thomas Mann [mailto:TMANN@brookings.edu]
Sent: Thursday, May 20, 2004 2:23 PM
To: Rick.Hasen@lls.edu; election-law@majordomo.lls.edu; Bauer, Bob-WDC
Subject: RE: news of the day 5/20/04
Bob,
Sorry that you didn't engage any of the points Corrado (not Ornstein)
and I made in this morning's Roll Call. A few points about your
defense of Broder.
Bush opted out of public financing before BCRA. He would have done so
again with it. Fortunately for Democrats, Kerry followed suite.
Anything else would be irrational, not because of BCRA, but because
the presidential public financing program is hopelessly out of date
and in need of major repair. BCRA supporters correctly calculated
that reform had to be deferred.
I see a big difference between between elected and party officials
soliciting unlimited contributions from corporate and union treasuries
and wealthy individuals, on the one hand, and presidential campaigns
enlisting fundraisers/bundlers. The latter is a longstanding practice
and fully anticipated by BCRA's authors.
BCRA was not designed to reduce the amount of money in campaigns. Many
of us involved in the effort believe more money is needed. The
problem is with how it is raised and distributed. Hyperbolic floor
statements by some supporters cannot undue this reality.
The activities of outside groups were fully anticipated by BCRA
architects, Remember, the focus was on party soft money and
electioneering communications (60/30 day windows). The latter
constraints remain in effect, even for your 527 clients. We kept
saying the bill was modest; critics never accepted that.
Bottom line: the parties and candidates, working entirely with hard
money, are dwarfing the soft-money efforts of the new 527s. For the
relevant numbers, see
http://www.brook.edu/views/papers/20040519corrado.htm It's not even
close. BCRA is alive and well.
Tom Mann
"Bauer, Bob-WDC" <RBauer@perkinscoie.com> 05/20/04 01:34PM >>>
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
<http://www.latimes.com/news/politics/2004/la-na-pollworkers20may20,0,75
4381
4.story?coll=la-politics-pointers> report.
"Banned E-Voting Systems Likely to Be Ready Nov. 2"
The Los Angeles Times offers this
<http://www.latimes.com/news/politics/la-me-evotes20may20,1,1279831.stor
y?co
ll=la-home-politics> report.
"Flap Over 527s Aside, McCain-Feingold is Working as Planned"
Anthony Corrado and Tom Mann have this
<http://www.rollcall.com/issues/49_128/guest/5646-1.html> 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
<http://www.rollcall.com/issues/49_128/news/5653-1.html> , 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."
BM_001219
"What McCain-Feingold Didn't Fix"
David Broder offers this
<http://www.washingtonpost.com/wp-dyn/articles/A41360-2004May19.html>
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
<http://home.hamptonroads.com/stories/story.cfm?story=70562&ran=23785>
editorial.
Canadian Free Speech Decision Roundup
Brett Marston has it all here
<http://marston.blogspot.com/2004/05/canadian-electioneering-speech.html
.
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
<http://lsolum.blogspot.com/archives/2004_05_01_lsolum_archive.html#1084
9831
1114258112> .
Corrado on Soft Money
Anthony Corrado has posted National
<http://www.brookings.edu/views/papers/20040519corrado.htm> Party
Fundraising Remains Strong, Despite Ban on Soft Money on the Brookings
website.
Electronic Voting Machine Humor from The Onion
See here
<http://www.theonion.com/lib/pdf.php?type=ia&cat=Infograph&img_id=2383>
.
Anderson and Richie on Vieth
See this <http://fairvote.org/commentary/betterwaytovote.pdf>
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
<http://www.miami.com/mld/miamiherald/news/local/states/florida/counties
/bro
ward_county/8698746.htm?1c> 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 <mailto:rick.hasen@lls.edu>
http://www.lls.edu/academics/faculty/hasen.html
<http://www.lls.edu/academics/faculty/hasen.html>
http://electionlawblog.org <http://electionlawblog.org>
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