"Why is the idea of "politically motivated" complainants a problem --
especially for someone, as Brad seems to be, of a pro-market,
libertarian bent?"
I did not describe it as a "problem," but merely as a fact. The second
half of the question I don't even understand.
But here are some reasons why it might be viewed as a "problem," and why
the campaign finance system does not really resemble the classic private
AG:
In most fields, private AGs may be politically motivated, but even if
they are they are vindicating some public right separate from their
political motive. They have little to gain (other than the satisfaction
of spite) and incur substantial costs by filing weak or frivolous
complaints. They benefit only when the public right is vindicated, and
are usually harmed by filing a weak or frivolous complaint.
In the election arena, the complainant typically benefits merely by
filing the complaint, and (oddly enough) rarely benefits from the
resolution of the complaint. This latter point is true even if the case
goes against the respondent, since the resolution will usually come
after the election, a happenstance dictated in most cases by minimal
regard for due process. Moreover, in this arena, these are not truly
private AGs - they bear none of the cost of investigation or litigation,
all of which is thrown onto the government. These factors provide a
strong incentive to file weak or frivolous complaints, aiming less at
vindicating any public right that at harassment of political opponents.
While a frivolous complaint by a person acting as a private AG is a
problem, it typically will not work to frustrate the overall goals of
the program at issue. In the election law arena, weak or frivolous
complaints may well frustrate the underlying goals of the regulatory
system, which include diminishing the role of money and the power of
lawyers, consultants, and accountants in the campaign; seeing that the
public is well-informed on issues; providing for constructive public
debate on matters of importance; increasing voter turnout; and exposing
real corruption, among others.
Finally, there is the fundamental insight that there a danger is
entrusting government with laws which give it the power to attack its
political opponents through selective enforcement - one of the problems
that the complainants in the Columbus church case are now raising.
While this danger exists in other regulatory systems, the potentials for
abuse are less and usually come at a higher cost.
Bradley A. Smith
Professor of Law
Capital University Law School
Columbus, Ohio
-----Original Message-----
From: Jeffrey MA Hauser [mailto:jmh248@nyu.edu]
Sent: Tuesday, April 25, 2006 1:20 PM
To: Smith, Brad; election-law
Subject: Re: RE: Tuesday on Votelaw
Why is the idea of "politically motivated" complainants a problem --
especially for someone, as Brad seems to be, of a pro-market,
libertarian bent?
Private attorneys general are way UNDERUSED in post-Rehnquist Court era,
and I find that sad. Relying on political opponents to identify
violations shouldn't be the entire enforcement strategy, but it should
play a big role.
Brad wrote,
"As with the DeLay case, to say that the charge is politically
motivated is not to say that there is not a violation of the law -
but it is another example of how these rules will always be
exploited for partisan gain. The laws are arrows in the quivers of
political operatives, and will be used against one's opponents to
the extent possible."
----- Original Message -----
From: "Smith, Brad" <BSmith@law.capital.edu>
Date: Tuesday, April 25, 2006 11:15 am
Subject: RE: Tuesday on Votelaw
A couple things should be pointed out on the first and third items
in Ed's report.
First, on the Texas case, the article is not the "Houston Chronicle
report[ing];" it is an opinion column by Rick Casey. Casey is a
pretty rabid Delay critic, if you read some of his back columns.
This column itself is quite unfair: there is no evidence, for
example, that DeLay criticized the 1977 decision on which the Court
relied last week. One might note that last week's ruling was
perfectly consistent with a conservative approach to judging: the
judges followed binding precedent that they obviously did not like.
And it is hardly fair to accuse DeLay of hypocrisy based not on
anything he said or did, but on what Casey thinks DeLay would have
thought about a decision 30 years ago.
Next, on the Blackwell piece: This is the type of reporting that
illustrates the fundamental dangers of this type of regulation.
Now granted, here the issue is merely the church's tax exempt
status, and the Supreme Court has held that limits on that status
do not violate the First Amendment. But as in campaign finance, it
illustrates the problematic nature of government regulation of speech:
A bunch of politically liberal preachers file a complaint with the
IRS. Barely three months later - the Post says it's been three
months, but the fact of the complaint was first announced by the
preachers and first reported in the Columbus Dispatch less than
three months ago - they complain that the IRS is not acting, and
that this demonstrates "favoritisim." In fact, they have no idea
if the IRS is acting or not, because the IRS doesn't tell them.
But what, exactly, should we expect in any case? Let's see - do
you think the churches should be notified of the complaint, and
have an opportunity to respond? How long should they get to
respond - is 20 days adequate? 30 days? So in a best case
scenario, we're basically a month in, more or less, by the time the
IRS has notified respondents of the complaint and received a
response. Only then can the IRS even decide to start an
investigation.
Despite the thoroughly predictable assertions from the
complainants' lawyer (quoted by the credulous Post as if they were
meaningful to understanding the case), this looks to be a pretty
complex case. Complainants allege - according to press reports
here in Columbus - a number violations of lengthy, often arcane,
and generally complex rules. Most of the allegations have been
publicly denied as being based on incorrect facts (for example, the
defendant churches have stated publicly that they did give other
candidates the same invitations as they gave Blackwell, but the
other candidates chose not to take them - a very believable story).
So this "he said/she said" is almost certainly a case demanding
some fact intensive investigation. How fast do you think that
should be done? Once it is done, do you think the defendant
churches deserve a chance to respond to any legal findings? The
truth is, whether it's the IRS or the FEC, it is wholly unrealistic
to expect most investig!
ations to be completed within 3 months, if any respect is given to
the due process rights of defendants.
So, one week before the Ohio primary, the complainants, admitted
Blackwell opponents, want another news story. And they get
compliant Post reporters to write one, relying almost entirely on
their own assertions. Does anyone think that this complaint is
anything but politically motivated? Does anyone think this
complaint would have been filed by these preachers against
Columbus's predominantly black churches, inviting liberal
politicians to address them (as has occured many times in the
past)?
As with the DeLay case, to say that the charge is politically
motivated is not to say that there is not a violation of the law -
but it is another example of how these rules will always be
exploited for partisan gain. The laws are arrows in the quivers of
political operatives, and will be used against one's opponents to
the extent possible. If the current charges against Blackwell turn
out to be patently bogus, they will have served their purpose of
tarring he and his supporters, and attempting to suppress their
activity for fear of bad press and legal enforcement. Just as
violations, if any, will not be determined until well after the
election, nor will innocense and bogus charges. So much for
campaigns being about "the issues." In any event, these
complainants are hardly in a position to whine about favoritism in
enforcement, not only because they have no evidence of favoritisim
(other than their apparent belief that the IRS should act at a pace
that would clearly den!
y the defendant churches due process), but because even if true,
it is an inherent problem in this type of regulation. Indeed, many
would argue that it is the purpose of this regulation. And that is
why we generally don't give the government this power.
Of course, my friend Ken Blackwell - and he is my friend of many
years - has accepted John McCain's endorsement and jumped on the
campaign finance bandwagon, so there may be some rough justice if
he is hoisted on that petard. I wonder if Sen. McCain will come to
Secretary Blackwell's defense, noting that it is wholly
unreasonable to expect a decision from the IRS so quickly?
Probably not.
Brad Smith
Professor of Law
Capital University Law School
Columbus, OH
________________________________
From: owner-election-law_gl@majordomo.lls.edu on behalf of Edward
StillSent: Tue 4/25/2006 9:24 AM
To: election-law
Subject: Tuesday on Votelaw
To read these and earlier stories in full, go to
http://www.votelaw.com/blog.
Texas: a 1977 "liberal" decision helped DeLay
<http://www.votelaw.com/blog/archives/004010.html>
The Houston Chronicle reports: IT was exactly the sort of decision
that has Congressman Tom DeLay declaring that "judicial activism
has become the greatest threat confronting representative
government." In Baker v. the State of Texas, an appeals court made
up...
Arizona: two appellate courts reject challenges to trial judge
hearing redistricting case
<http://www.votelaw.com/blog/archives/004009.html>
AP reports: The state's redistricting commission is questioning how
it can get a fair shake from a trial judge who the commission
suggests could be resentful, partly because his rulings on key
issues on the legality of Arizona's map of...
Ohio: is the IRS dragging its feet on investigation of churches
supporting Blackwell?
<http://www.votelaw.com/blog/archives/004008.html>
The Washington Post reports: In a challenge to the ethics of
conservative Ohio religious leaders and the fairness of the
Internal Revenue Service, a group of 56 clergy members contends
that two churches have gone too far in supporting a...
Wisconsin: county voters may vote on county board size
<http://www.votelaw.com/blog/archives/004007.html>
AP reports: Advocates for smaller county boards have a new weapon
in Wisconsin - putting the issue to a vote of residents - but early
returns indicate changes won't come soon. Only one county has put
the issue to a...
Alabama: GOP redistricting suit awaits court action
<http://www.votelaw.com/blog/archives/004006.html>
AP reports: A lawsuit challenging the constitutionality of the
current district boundaries for the Alabama Legislature awaits a
ruling by a three-judge federal panel on whether it can continue.
Democrats claim it's a Republican attempt to pick up where the...
Edward Still
attorney & mediator
Suite 201
2112 11th Avenue South
Birmingham AL 35205
phone 205-320-2882
fax toll free 1-877-264-5513
still@votelaw.com
http://www.edwardstill.com
<http://www.edwardstill.com/> http://www.votelaw.com/blog
<http://www.votelaw.com/blog>
Edward Still
attorney and mediator
Suite 201
2112 11th Ave S.
Birmingham AL 35205
phone 205-320-2882
fax toll free 1-877-264-5513
still@votelaw.com
http://www.edwardstill.com <http://www.edwardstill.com/>
http://www.votelaw.com/blog <http://www.votelaw.com/blog>