Well, if nothing else we certainly agree on our points of disagreement:
"Independent "issue ad " campaigns were a prominent feature of the 1996 and
2000 campaigns."
"Prominent" in the abstract - OK, sure. "Prominent" vis-a-vis the
much-excoriated issue ad campaigns run by the national party committees - in
my opinion, no.
"National parties raised $433 million in the first 15 months of this
election cycle."
Conflated, yes, the six national party committees have raised quite a bit of
money so far in this cycle. (And yes, frankly, more than I expected they
would.) Segregated by party, the GOP committees have very significantly
outraised their Democratic counterparts. The fundraising by the new 527s
makes up part of the difference, confirming your point that in the broadest
terms the "blue" and "red" teams will apparently reach the same rough
financial parity in this cycle as they did in the past and underscoring my
point about relatively decreased relevance with respect to the *Democratic*
national party committees in particular.
"The new 527s raised $47 million."
Correct - that we know of, as of the last reporting deadline. How much is
being raised by groups that haven't triggered any public disclosure
obligations (501(c)6's, for-profit entities, etc.)? Unknown, and may never
be known, which is precisely my point about focusing the attention where the
light is.
"Both presidential campaigns are raising sufficient funds to finance
virtually all of their campaign needs."
This I do agree with, but taking off my "shameless partisan" hat for a
second, it's hard to view the exquisite divisiveness of this president as a
positive thing for the overall health of our political system.
-----Original Message-----
From: Thomas Mann [mailto:TMANN@brookings.edu]
Sent: Friday, May 21, 2004 12:30 PM
To: TP@Capdale.com; marty.lederman@comcast.net; rkelner@cov.com;
rick.hasen@lls.edu; election-law@majordomo.lls.edu; RBauer@perkinscoie.com;
jbirkenstock@smithkaufman.com; daveanstaett@yahoo.com
Subject: RE: news of the day 5/20/04
I think you are greatly exaggerating the importance of the parties in 1996
and 2000 relative to outside groups and underestimating the position of
parties in 2004 relative to the new 527 groups. Independent "issue ad "
campaigns were a prominent feature of the 1996 and 2000 campaigns. BCRA
prevents all of these groups from using "soft money" to run electioneering
communications during the most crucial stage of the campaign in 2004.
National parties raised $433 million in the first 15 months of this election
cycle. The new 527s raised $47 million. Both presidential campaigns are
raising sufficient funds to finance virtually all of their campaign needs.
What critics worry about in theory is not supported by experience to date.
"Joe Birkenstock" <jbirkenstock@smithkaufman.com> 05/21/04 03:09PM
"Why, again, is it "anti-party" to require parties to forego unlimited
corporate and union contributions in favor of connecting with thousands of
small donors who ostensibly make up a party's base?"
I explain it this way: in 1996 and 2000 the national party committees were
undeniably the 800-pound gorillas of the political landscape, particularly
with respect to the general election. In this cycle that isn't true anymore
and I'm not convinced that's a good thing. I can't vote for the president
of the Club for Growth or the executive director of ACT - so I really don't
have any say over what issues they should highlight, or what stands they
should take on public policy. The new 800-lb gorillas aren't accountable to
me (or you or any other Joe Lunchbox voter) in the slightest. The parties
are accountable (and as you point out, arguably even more so than before),
but even prior to BCRA the selection of party leadership, message, and
strategy was enormously more "small-d" democratic than is the case with the
new gorillas. There's certainly an element of "choose your poison" here,
but I'm not convinced we're better off with less-relevant, more-democratic
party committees than we were before BCRA with more-relevant,
still-more-democratic-than-the-alternatives party committees.
"I assume we can soon expect a mea culpa from those promised that BCRA would
put the parties on life support?"
Speaking strictly for myself, no, you can't. See above.
________________________________
Joseph M. Birkenstock, Esq.
Special Counsel
Smith Kaufman LLP
777 S. Figueroa St., Suite 4050
Los Angeles, CA 90017
(213) 452-6576
*only admitted to practice in DC
-----Original Message-----
From: owner-election-law_gl@majordomo.lls.edu
[mailto:owner-election-law_gl@majordomo.lls.edu] On Behalf Of Dave Anstaett
Sent: Friday, May 21, 2004 10:30 AM
To: Kelner, Robert; TP@Capdale.com; 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
Why, again, is it "anti-party" to require parties to forego unlimited
corporate and union contributions in favor of connecting with thousands of
small donors who ostensibly make up a party's base? And if some of those in
Congress who voted for BCRA promised more than they were actually delivering
(I'm shocked, shocked!), I assume we can soon expect a mea culpa from those
promised that BCRA would put the parties on life support?
"Kelner, Robert" <rkelner@cov.com> wrote:
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 understand!
ably 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
To: Kelner, Robert ; Bauer, Bob-WDC ; marty.lederman@comcast.net ;
TMANN@brookings.edu ; rick.hasen@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
fed! eral 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
To: Bauer, Bob-WDC ; 'Thomas Mann'
; Rick.Hasen@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"
To: "'Thomas Mann'" ; ;
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 w! as 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 t! hese 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" 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. A! nd 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
4381
4.story?coll=la-politics-pointers> report.
"Banned E-Voting Systems Likely to Be Ready Nov. 2"
The Los Angeles Times offers this
y?co
ll=la-home-politics> 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, t! he 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."
BM_001219
"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
&! gt; 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
9831
1114258112> .
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
/bro
ward_county/8698746.htm?1c> report, with the following subhead: "The
federal campa! ign 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
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