In an op-ed today in Politico, Prof. Rick Hasen argues that Congress should use the lame duck session to take up campaign finance reform once again. He suggests that the early seating of Republican Sen. Mark Kirk of Illinois* gives life to a campaign finance bill in the lame duck session because Kirk, during his campaign for Senate, spoke in favor of disclosure. Hasen urges Kirk to endorse the issue and try to bring other GOP moderates with him.
Hasen is shrewd enough to understand that the DISCLOSE Act itself—the hyper-partisan, partly unconstitutional bill proposed by Democratic leadership after the Supreme Court’s decision in Citizens United v. Federal Election Commission—is probably dead. Moreover, as a Congressman, Sen.-elect Kirk already voted against the DISCLOSE Act.
But, Hasen argues, Kirk should now try to produce action on a bill that “borrow[s] the best parts of the DISCLOSE Act’s provisions and junk[s] the rest.” They should also fix the holes in the bill—which could have led to a shift in 2012 to other nonprofit organizations, perhaps veterans organizations, for example.”
So let’s get this straight: the lame-duck session begins Nov. 15 for one week; breaks for Thanksgiving, and then returns, with a maximum of four weeks until Christmas, if they worked right through Christmas Eve.
During this time, Congress must first address some type of budget resolution—one of the scandals of the current Congress is that it has yet to act on any budget bills. There is certain to be negotiation over whether to try to pass a $1.1. trillion catch all budget, or merely to continue freeze spending at current levels, for some period that would have to be negotiated. The annual defense policy bill, passed every year for four decades, has yet to be negotiated, locked in a standoff on “Don’t Ask, Don’t Tell.” Absent Congressional action, taxpayers of all income levels will face a substantial hike in income tax rates on Jan. 1, 2011. There seem to be clear majorities for extending at the current tax rates for most taxpayers, but there are significant disputes over whether to make them permanent, or again just temporary (and if so, for how long), and on whether to protect the current rates for all taxpayers or only some. Also on the table is Alternative Minimum Tax relief, supported by many if not most Democrats and already expired, unless Congress acts in the lame duck.
The START treaty remains before the Senate. Congress must also act on the Democrats’ promise (also supported by most Republicans, but controversial because it will substantially increase the cost of the already unpopular health care bill passed this year) to “fix”—that is, prevent cuts in—Medicare payments to doctors. Congress has to decide whether to extend unemployment benefits again; otherwise, hundreds of thousands of long-term unemployed workers will lose benefits in December. Democrats also have promised to pass a bill child nutrition and a bill granting Social Security recipients an extra $250 in benefits, though it looks like neither measure has the votes to pass.
Into this heavy agenda, Prof. Hasen, doubtlessly joined by the usual suspects interested in limiting speech, now argues that Congress must take up disclosure, even though there is at least some breathing space before the next election. Part of this is shear political calculation: Hasen thinks a disclosure bill is unlikely to pass in the next Congress (which really ought to make one wonder if one should pass in this Congress—see long-time “reformer” Norm Ornstein’s column in The New Republic, poo-poohing the idea that Congress would use the lame duck to pass bills that couldn’t pass before the election).
But another reason for thinking action is possible in the lame-duck is the usual tendency of the reform lobby, which largely consists of public interest lawyers and academics with little grasp of the realities of enforcement and compliance, to underestimate the challenge involved in drafting campaign finance legislation.
Current law already provides a massive amount of disclosure of campaign spending and contributions. Put bluntly, the U.S. government already devotes a massive amount of energy to requiring citizens to report their political activities to the government, and to policing and tracking citizen political participation. Every ad in a federal race must state who paid for the ad, and whether it was authorized by a candidate or committee. Any group of citizens with a major purpose of influencing federal elections must report all of its income and expenditures—even those unrelated to federal elections—to the government. Anyone else who spends money promoting the election or defeat of candidates must file reports of their spending with the government, and identify anyone else who contributed funds for specific ads. Citizen groups which operate to discuss candidates and issues without advocating the election or defeat of candidates, unless they have some other dominant, educational or charitable mission, must report all their donors to the IRS, for public release. And of course political parties and candidates must report all of their spending and contributor information (except for contributors of $200 or less) to the government.
In addition to all this legally compelled disclosure, there is much informal disclosure in the system. When groups incorporate, those records are usually public, revealing the names of the incorporators and often the lawyer who files the papers. Most groups maintain websites, and these usually list addressees and contact information, and often top staffers. All of this information provides cues to the nature of the group and its objectives. Of course, many groups brag about their endorsements and participation.
For some people, however, all this is not enough. They believe that if a group that exists for non-electoral purposes—such as the U.S. Chamber of Commerce, Planned Parenthood, or the NAACP, or a “shadowy” group (not!) such as American Crossroads—spends money on politics, voters must also know the names of anybody who gave money to that group. We are highly skeptical that the public, or public discourse, really benefits from this added information. This information is often sought for the purpose of harassing or boycotting the political supporters of such groups, and while people have rights to engege in lawful boycotts (and even some modest harassment) it’s doubtful that the government has a compelling interest in making such harassment and boycotts easier. But the fact that we already have extensive federal disclosure laws, which take up well over 150 pages in statutory and administrative regulation, might caution these denizens of reform that these issues are simply not easy—at least not if one has concern for First Amendment interests, privacy rights, and political non-partisanship.
Indeed, even Prof. Hasen seems to abstractly understand the problem, noting that even the ridiculously draconian DISCLOSE Act had “holes” that could lead to new ways for donors to contribute while protecting their privacy and protecting themselves from boycotts and harassment.
Consider a real world example of contributions, with only the names changed: ACME Widgets gives to the Widget Manufacturers Association, which represents the interests, political and otherwise, of widget makers. The WMA then contributes or pays dues to the U.S. Chamber of Commerce, in part because it believes the Chamber’s activities help to create a healthy economic and political climate in which widget makers can thrive. The U.S. Chamber then matches commitments by state chambers for some political spending, hoping both to encourage the involvement of local business and to take advantage of local knowledge. A state chamber then contributes to the State Business Alliance, which is a coalition of leading business groups in the state, such as State Retailers, State Manufacturers, and others. The State Business Alliance then reports its spending. What do reformers want disclosed? They may want to know who contributed to State Business Alliance, but how much more do they want? After all, their complaint is that they need to know “who is really funding these ads.” Do they want the details on ACME Widgets (and others) payments to the WMA, over which ACME gave up legal control several transactions and perhaps many months ago? Would this really enlighten the public?
Understand that however far back up the chain of title one wants to go, a person or organization that wants to retain some anonymity can do so, simply by putting one more group in the middle. Of course, by chasing up the ladder indefinitely the “real” donor’s identity might be achieved, but only by bringing with it many, many others.
And this may not be informative at all. Let us take another example. I will use real names, but the scenario is, so far as I know, fictional. Imagine that conservative home builder Bob Perry, a prominent donor to conservative causes and politics, makes a large contribution to the National Rifle Association. The NRA in turn spends money to support the re-election of Ohio Gov. Ted Strickland (whom, in fact, the NRA did endorse this year). Will Ohio voters benefit from the (probably misleading) suggestion that Bob Perry supported the election of Strickland?
In other words, assuming still more reporting of political activity to the government is necessary (or at least beneficial), drafting a serious law that achieves these objectives, is realistically enforceable, and does not merely end up funneling large sums into more arcane avenues of participation is not easy. Even the DISCLOSE Act, which didn’t worry at all about such concerns, took a good three months to draft into legislation.
If Prof. Hasen and the regulatory lobby are correct, that more disclosure, stripped of the partisan and unconstitutional provisions of the DISCLOSE Act, is desired by the public, we would expect it to pass in the next Congress. After all, McCain-Feingold passed in a GOP-controlled Congress, and it was much more controversial and far reaching than mere “disclosure.”
Congress has a lot on its plate in the lame duck, and any new disclosure bill should be done right—after the new Congress is seated in January.
*In addition to his election to a full term, Kirk would fill the remaining two months of the term for the seat previously held by President Obama and, since Obama’s inauguration, appointed Sen. Roland Burris.
