McCain and the Republican FEC three

Hans von Spakovsky, a visiting legal scholar at the Heritage Foundation and former FEC commissioner, has written a piece for National Review dealing with the recent debate over split votes at the FEC.

He explains how the complexities of the law, which have at times escaped even campaign finance “reform” crusader Sen. John McCain, have led the Republican bloc on the FEC to refuse charge forward with penalties in cases where the law is unclear, ambiguous, or not applicable to the facts — even when such deference upsets proponents of strict campaign finance regulations like Sens. McCain and Russ Feingold.

von Spakovsky relates how “amusing” it is that a Democratic nominee of President Obama is being held up by Sens. McCain and Feingold after then-Sen. Obama placed a hold on von Spakovsky’s nomination, upsetting a tradition of deference to FEC nominees of the opposing party.

Here’s an excerpt:

… if it weren’t for the three Republican commissioners voting together to block enforcement of ambiguous and confusing provisions, McCain would be paying large civil penalties for violating the law he co-authored. McCain has demonstrated on more than one occasion that he does not understand the requirements of his own law, including when he was investigated by the FEC while I was on the commission.

…now we have a situation in which McCain, who claims he did not violate the law, wants to replace those same Republican commissioners, on the grounds that the FEC needs “new commissioners with a demonstrated commitment to the existence and enforcement of the campaign-finance laws.”

So who does McCain think was correct in his own case — the career lawyers and the three Democratic commissioners, or the Republican commissioners he wants replaced because they are supposedly not enforcing the law? If the author of the law can’t understand its confusing, complicated, and often ambiguous requirements, how does he expect the rest of the political world to do so?

Filed Under: Blog

Encouraging news from campaign finance ‘reform’ poll

A recent telephone survey by polling firm Rasmussen Reports finds that U.S. voters are less supportive of campaign finance restrictions than reform groups regularly claim. The data show a clear and deep skepticism of the current campaign finance regime and a willingess to let the onerous system of low contribution limits and other campaign curbs fade away.

Filed Under: Blog

Mason: Public financing no cure for corrpution

Check out David M. Mason’s recent piece in Engage, the journal of the Federalist Society’s practice groups. Mason’s article, “No Cure for Corruption: Public Financing under Constitutional Constraints,” appeared in the Free Speech and Election Law section.

Mason is a Visiting Senior Fellow at the Heritage Foundation and former Chairman of the Federal Election Commission.

Here’s an excerpt:

Trends in technology and constitutional interpretation are likely to continue, however, to make public financing—at least that associated with spending limits—unattractive. Low-cost, high-volume Internet fundraising has overwhelmed spending limits associated with traditional public financing schemes. At the same time, courts have clarified that public funding schemes may not coerce or handicap privately-funded candidates, for instance by giving advantages to publicly-funded candidates on account of an opponent’s private fundraising. Further, courts have increasingly limited the rationales sufficient to justify limits on private political financing, and therefore expanded the scope and volume of private financing. The Supreme Court’s recent order for rehearing in Citizens United v. FEC gives a strong hint that the Court will extend this trend. Reform proposals have finally adapted with increasing subsidies and by increasing or eliminating spending limits.

In an era of broad-based Internet fundraising, public financing begins to look like a cure in search of a disease. Even worse, the super-subsidies required to compete with Internet-enabled fundraising offer powerful inducements to the fraud and corruption that campaign finance laws are purportedly intended to prevent. A campaign finance scheme enabling corruption is not a cure worse than the disease: it is a contagion masquerading as a cure.


Filed Under: Blog

Taxpayer-financed campaigns lead to bunnies, sunshine and happiness

Today in North Carolina the insurance industry and the Department Of Insurance reached a settlement, leading one state blog to note that, “having an Insurance Commissioner who is willing to stand up to the insurance industry can save consumers tens of millions of dollars.” 

Chase Foster, of the Progressive Pulse, seems to believe that this all occurred because of the taxpayer-financed elections in the state. While that would certainly be a coup for advocates of the program, where’s the proof?

Simply because a candidate accepts contributions from private individuals, rather than take a government handout, doesn’t mean they lack the ability or the “guts” to make a change for the public good — or in this case, simply do their job and demand accountability from industry in the state. The Commissioner did his duty, and there’s no indication that it had anything to do with how he funded his campaign. 

Foster writes that “if the Commissioner of Insurance was in the pocket of the insurance industry, we would certainly not have what the Department calculates to be the fifth lowest auto insurance rates in the country.”

If that’s true, what about the four states with superior rates? Do they too, not have their hands dipped “in the pocket of the insurance industry?”

(click here to read more)

Filed Under: Blog

FEC Republicans speak out

Two Republican FEC Commissioners have taken to the Washington political press to defend the FEC — and specifically the oft-criticized bloc of Republicans — against condemnation from the “reform” community that the agency is unwilling to enforce campaign finance laws and “mired in gridlock.”

The most recent addition to the Center for Competitive Politics team, Benjamin Barr, addressed this issue a few days ago here.

The op-eds by Commissioners Don McGahn and Caroline Hunter, in Politico and Roll Call (subscription only) respectively, offer a strong defense of the Republican Commissioners’ reasoning and the principles behind their decisions in some recent thorny cases.

In both pieces, the commissioners note that the “reform” criticism about frequent deadlocks paralyzing the FEC is hyperbole unsupported by the facts and the split votes center on weighty — and often muddled — legal issues. They cite that during the past year, the FEC has resolved more than 350 matters, resulting in close to $2 million in civil penalties. Oh, the gridlock!

(click here to read more)

Filed Under: Blog

We thought campaign finance reform wasn’t about silencing opposing voices

The only justification that the Supreme Court has recognized for upholding campaign finance regulation despite the limits it imposes on speech is to prevent “corruption or its appearance.”  Moreover, limitations must be content neutral — “reform” cannot withstand constitutional scrutiny if it is just an excuse to silence disfavored voices.  We don’t think much of the anti-corruption rationale for upholding restrictions on political speech, on either theoretical or empirical grounds, but let’s let that pass today. In September, in Citizens United v. FEC, the Supreme Court will hear argument on whether to overrule Austin v. Michigan State Chamber of Commerce, a 1990 decision that allows a complete ban on all corporate political expenditures.

Naturally, the “reform” community is up in arms. Why? Well, here is what Austin supporter Professor Rick Hasen, owner of the influential Election Law Blog, had to say in the immediate aftermath of the Court’s announcement on Austin:

If Republicans were wondering how their 2012 presidential candidate is going to compete against President Obama’s $600 million fundraising juggernaut, the Supreme Court seems poised to provide an answer: unlimited corporate spending supporting the Republican candidate, or attacking Obama.

Here is National Journal‘s Eliza Newlin Carney, an ardent advocate of “reform:”

The bottom line: Already-influential corporations would win vast new powers — something that arguably couldn’t come at a worse time.

Longtime campaign finance lobbyist Fred Wertheimer, President of the pro-regulation organization Democracy 21, expresses his concern that:

Overruling the Austin decision — and finding that corporations have a First Amendment right to spend unlimited sums of corporate funds to influence federal campaigns — would fundamentally undermine our democracy and change the character of federal elections. It would allow the immense wealth of corporations to drown out the voice of the American people.

Does this sound like these influential commentators are interested in “content neutral” legislation? Or does it sound like they want to silence a point of view that they associate with corporations, and, at least in Hasen’s case, with Republicans?

(click here to read more)

Filed Under: Blog

Citizens United v. FEC: Did the Solicitor General blow it? Or is the problem the theory?

Citizens United v. FEC is heading back to the Supreme Court in September, specifically to consider whether Austin v. Michigan Chamber of Commcerce and/or portions of McConnell v. FEC should be overruled.  The “reform” lobby is freakin’ out, making apocalyptic predictions  and uncertain whether the problem is that the Supreme Court seems poised to upend something landstanding – a “100 year old” law (never mind its racist pedigree and dated relation to the realities of modern life)  – or something new (“a precedent less than 6 years old”).  But clearly they are concerned that there is a realistic possibility, and perhaps a probability, that Austin will be overruled.

In this context, there has been something of an effort to blame the Solicitor General for blowing the oral argument.  The idea is that Deputy SG Stewart, who argued the case, said way too much when he declared that the government had constitutional authority, per Austin and McConnell, to ban books.  But this overlooks the fact that this was not some ill-thought out, off-the-cuff comment – what Stewart argued is what the government briefed. 

Click the headline to read more…

Filed Under: Blog

Kudos to the ‘do-nothing’ FEC Commissioners: the Constitution compels humble restraint

When it comes to preserving our constitutional liberties, it is so often the case that valuing restraint over action is a virtue, and a message sorely needed to be repeated. The Federal Election Commission is an especially unusual creation — itself possessing the rare power to meddle with fellow citizens’ political activities. Recently, a small chorus of voices has crept up; worried that something is rather afoul at the FEC — there have not been enough fines, investigations, and penalties levied against citizens.

Some election law observers and those within the self-styled reform community have launched their own series of labels for the hesitant commission — “obstructionist,” “defunct,” and “ideological” are among the many. These critics construct an overly simplified problem at the FEC, reasoning that a commission that authorizes fewer investigations and penalizes fewer citizens must somehow be corrupt or unwilling to uphold the law. But these critics all lose sight of more important considerations, and considerations which carry the full blessing of the United States Supreme Court.

As of late, The Washington Post editorial page, Talking Points Memo, and others have put blame on Republican commissioners as the source of the commission’s roadblock. Reasoning these commissioners just don’t believe in the law they are to enforce, it is generically assumed that every time they vote against enforcement or opening an investigation, some ulterior political motive must be at bay. But the Post, TPM, and others fail to recognize that something more important, the Constitution, just might be driving these commissioners’ decisions. And it proves worthy to note that these commissioners take an oath to uphold that Constitution.

Throughout the FEC’s history, the commission has been on the losing end of many free speech and constitutional challenges. The reason is easily understood: In our constitutional Republic we favor more speech and less government intervention in public debate. As George Washington reasoned, we must be not be too giddy in welcoming government authority: “Government is not reason; it is not eloquence, it is force. Like fire, it is a dangerous servant and a fearful master.”

(click the headline to read more)

Filed Under: Blog

Testimony of CCP Government & Coalition Relations Director Kristen Meade to North Carolina Senate Committee on Appropriations and Base Budget

Written testimony of CCP Government & Coalition Relations Director Kristin Meade at a July 13, 2009 hearing of the North Carolina Senate Committee on Appropriations and Base Budget on the topic of clean elections.

Filed Under: Blog, External Relations Comments and Testimony, External Relations Sub-Pages, State, State Comments and Testimony, Tax Financed Campaigns Comments, Tax Financed Campaigns State, Tax-Financing, Comments and Testimony, North Carolina

New line of attack: Judge Sotomayor and campaign finance

Politico reports on a new tactic by Senate Republicans to focus on Judge Sonia Sotomayor’s abysmal record on campaign finance to try to establish her lack of respect for Americans’ free speech rights.

Pretty much no one expects Senate Republicans to succeed in blocking Sotomayor’s nomination to the High Court, but its a good development that weighty issues like campaign finance will get an airing in her nomination hearing.

We’ve previously discussed Sotomayor’s troubling jurisprudence on campaign finance issues here and here.

Filed Under: Blog

The Center for Competitive Politics is now the Institute for Free Speech.