Re: [EL] Pay to Play or "No Pay to Play"

          Some imprecise writing on my part led Brad Smith to misunderstand my point (see the last paragraph in his message below).  I did not mean to suggest that he or anyone else is shortsighted to criticize the proposed disclosure requirement because the requirement will permit abuse by the Republicans in the future as it will permit abuse by the Democrats currently.  The thought never even entered my mind that he or anyone else here would have any interest in such a calculus.  My intended point was that to the extent that (as he strongly alleges) any Democrats are supporting this proposal because it will permit the present administration to use it improperly, they are shortsighted because a future Republican administration is equally likely to abuse it similarly.

             Best,

             Daniel H. Lowenstein
             Director, Center for the Liberal Arts and Free Institutions (CLAFI)
             UCLA Law School
             405 Hilgard
             Los Angeles, California 90095-1476
             310-825-5148

________________________________
From: election-law-bounces@mailman.lls.edu [election-law-bounces@mailman.lls.edu] On Behalf Of Smith, Brad [BSmith@law.capital.edu]
Sent: Friday, April 22, 2011 8:55 AM
To: Daniel Schuman; Election Law
Subject: Re: [EL] Pay to Play or "No Pay to Play"

I think there are a number of reasons, and I will offer them in the same spirit as your post - less to defend them per se than simply as arguments that may be made. But then I want to turn back to the big picture, which in my mind provides the strongest arguments contra the proposed EO, and which will go beyond responding to your post, Dan.

First, bear in mind that corporate PAC contributions to candidates and parties, or corporate PAC independent expenditures (which are quite rare) are already disclosed.  So are the contributions of corporate officers and managers. Thus, the limited universe we are discussing concerns contributions by corporations or their employees and officers to groups that make politically oriented expenditures without disclosing the precise identities of their donors.

Contrary to your assumption (that "political figures already know about these ... expenditures"), it appears that political figures in fact do not know about these expenditures, but desperately want to find out. And, indeed, it seems clear that donors do not want politicians to find out, and are willing to expend considerable monetary and political capital to keep their identities quiet. Certainly that has been the ongoing theme of the last year, and the fact that there have not been many allegations along the lines of "these are the corporations that have given to ..." suggests that the politicians really don't know.  If that is true, then the case for disclosure pretty much falls out at the bottom - at that point it is clearly making pay to play easier, not harder.

The reasoning, however, typically continues that the spenders will make their spending known to the people who matter.  But this is harder than it seems.  This requires the spender to make known information to the key congressional players, without letting it be publicly known. Maybe keeping secrets in Washington has become easier than it used to be. Regardless, because anyone can swear fidelity and claim that they supported groups making independent communications that an officer holder might have been grateful for, there is a major trust problem (unless the spender is already a known supporter, in which case there is no real issue) in convincing the politician to take an unethical measure (really, most politicians have ethics) of promoting a contractor for political gain. Moreover, even unethical politicians cannot know if the spender is also playing the other side of the fence, another reason for skepticism and mistrust.

In this situation, requiring disclosure dramatically lowers the transaction costs for those who would engage in "pay to play" politics. Indeed, this is true even for those contributions that are already disclosed through the FEC or the IRS - now, all those will be listed in one easy to find and analyze place, as opposed to searching databases and teasing out the information (not always easy if corporate managers do not list their employer, which is requested but not required.)