Daily Media Links 10/31: Harvard Business Law Review: The Non-Expert Agency: Using the SEC to Regulate Partisan Politics, Failure to Learn from Scandal, Analysis of Recent Claims by Anti-Corporate Speech Activists, and more…

In the News

Harvard Business Law Review: The Non-Expert Agency: Using the SEC to Regulate Partisan Politics.

By Brad Smith and Allen Dickerson

Over the past 15 years advocates of campaign finance reform, frustrated by the structure and design of the Federal Election Commission (FEC), have attempted to offload the duties of campaign finance regulation to other federal agencies, most notably the Internal Revenue Service (IRS) but also the Federal Communications Commission (FCC). Recently, these efforts have expanded to include the Securities and Exchange Commission (SEC). 
We respond specifically to Professors Lucian A. Bebchuk & Robert J. Jackson, Jr., who in their recent article “Shining Light on Corporate Political Spending,” urge the SEC to adopt compulsory disclosure rules to govern corporate political activity. We argue that whatever the theoretical merits of this position, the reality is that the current pressure on the SEC to adopt new compulsory disclosure regulations is a direct result of a desire to use the SEC to regulate not corporate governance or the world of investment and trading, but campaign finance. We suggest that, as a result, any rules adopted are likely to be illadvised and co-opted in the enforcement process. Additionally, we note that efforts to require the IRS and FCC to regulate speech have resulted in very bad unintended consequences, the natural result of agencies operating outside their area of expertise. 
At the core of the theory of the independent agency is a belief that administrative bodies will develop unique technical competence and will operate within that sphere of expertise. Pressure on the SEC (or other agencies) to regulate campaign finance takes these agencies out of their area of professional expertise and competence, and is thus likely to result in bad law, damage to institutional reputation, and a distraction from the agency’s core mission.
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Failure to Learn from Scandal

“The effort to make the IRS into a campaign finance law enforcement agency created one of the worst scandals in IRS’s history.  Today’s effort to draw the Securities and Exchange Commission into regulating political speech shows that many have failed to learn the valuable lesson from the IRS scandal – don’t ask agencies to do jobs they don’t know how to do.  The SEC is ill-suited to police speech and efforts to drag the agency into this arena are fraught with danger.  It would sidetrack the SEC from its mission of protecting investors and threaten First Amendment rights.
“As for the comments to the SEC, these are ginned up by partisans with a political agenda.  Fewer than .01% of the 640,000 comments contain unique text and relevant arguments.
“Citizens and lawmakers benefit from more speech and more information, not less.  The SEC should learn from the IRS scandal and stay out of regulating political speech and focus on its mission.”
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Analysis of Recent Claims by Anti-Corporate Speech Activists 

Our analysis found less than .01% of these submissions to be “substantive” letters containing unique text and coherent arguments from independent perspectives that were not duplicates, without complete names, or using form text. 
99.71% of the comment letters stem from nine different form letters from union and Soros-funded entities, which have posted SEC submission links on their websites. 
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Wall Street Journal: California’s Name-and-Shame Attack on Political Speech

By Allysia Finley

At least the IRS purported to be acting independently when it targeted conservative groups. The same can’t be said of California’s political watchdog agency, the Fair Political Practices Commission.
On Thursday, the commission and Democratic Attorney General Kamala Harris, following a yearlong investigation spurred by Gov. Jerry Brown, announced a “record” $1 million fine against two out-of-state conservative nonprofit groups: Americans for Responsible Leadership and the Center to Protect Patient Rights. The Arizona-based groups, according to the commission, were “part of the ‘ Koch Brothers ‘ Network’ of dark money political nonprofit corporations.”
So what’s their alleged offense? Protecting individual donors’ identities from public disclosure.
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Wall Street Journal: The United States of Lou Reed


It is somehow fitting that rock star Lou Reed died Sunday, in this season of American national angst over government shutdowns, mounting debt and declining influence abroad. That’s because the Velvet Underground frontman not only motivated Václav Havel and the Czechoslovak dissidents who challenged their Communist rulers and helped bring down the Soviet Union. He also demonstrated why, for all we hear about Washington’s sclerosis, it is still smart to bet on America in this century as in the last.  
Not that Reed himself would have put it this way. Starting in the mid-1960s, his lyrics about urban life, drugs and sexuality made him one of rock’s leading transgressives. Later he lambasted the concept of the American dream (“Give me your hungry, your tired, your poor I’ll piss on ’em/That’s what the Statue of Bigotry says”) and railed against New York Mayor Rudy Giuliani and the religious right. In recent years, he supported Occupy Wall Street and performed in Israel, even as some of his left-wing contemporaries boycotted the Jewish state.  
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Candidates, Politicians, Campaigns, and Parties

Roll Call: DSCC Spreads Wealth to State Parties for 2014

By Kyle Trygstad

Senate Democrats have quietly started implementing their plan to keep the majority by transferring funds to state parties with top races in 2014.  
The Democratic Senatorial Campaign Committee has begun making monthly transfers to these organizations to help construct first-rate, on-the-ground affiliates ahead of the midterms.  
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The Hill: Senate confirms Wheeler to lead FCC

By Brendan Sasso

The Senate unanimously confirmed Tom Wheeler, an investor and former industry lobbyist, to be chairman of the Federal Communications Commission Tuesday.   
The vote was delayed for two weeks by Sen. Ted Cruz (R-Texas), who expressed concern about Wheeler’s views on political disclosure rules. Cruz lifted his objection after Wheeler assured him in a private meeting Tuesday that tougher disclosure requirements for the donors behind political TV ads are “not a priority” for him. 
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The Hill: Top Lobbyists 2013

Among the thousands of advocates in the nation’s capital, only a select few have risen to the top of their profession to earn a slot on The Hill’s Top Lobbyists list.
Some of the Top Lobbyists are hired guns who have proven to clients that they can shape the agenda on Capitol Hill. 
Others are advocates who derive power from the grassroots, turning old-fashioned organizing into potent political power.
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Politico: Michelle Obama policy initiatives are a big deal for big business  


The latest Let’s Move! event is brought to you by the letter K. As in K Street.
On Wednesday, first lady Michelle Obama will be joined by Sesame Street’s Elmo and Rosita to unveil a new marketing effort aimed at making healthier foods more appealing to children.
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State and Local

Michigan –– AP: Pro-Duggan super PAC raises $2.8M; pro-Napoleon PAC collects $300K

DETROIT, MI — A super political action committee supporting Detroit mayoral candidate Mike Duggan has raised $2.8 million overall and $1.4 million in the latest period, according to a recently released quarterly report.  
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The Center for Competitive Politics is now the Institute for Free Speech.