How Campaign Finance “Reform” Is Abused

September 22, 2006   •  By Brad Smith   •    •  
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Yesterday the Milwaukee Journal Sentinel reported on doings at the Wisconsin State Elections Board:

“A lawyer for Democratic Gov. Jim Doyle’s campaign repeatedly lobbied three Democratic members of the State Elections Board before they voted with the majority to order Republican gubernatorial candidate Mark Green to divest $467,844 in donations from out-of-state political action committees, records show.

“Attorney Michael S. Maistelman bluntly told Democratic Party members of the board he contacted why they should publicly sanction or punish the Green campaign, according to documents obtained by the Journal Sentinel under the state’s open records law.

“‘Even if this ends up in Court it is a PR victory for us since it makes Green spend money and have to defend the use of his Washington DC dirty money,'” Maistelman said in a 9:31 a.m. e-mail one day before the vote. He sent the message to Carl Holborn and Kerry Dwyer, board members appointed by Democratic leaders of the Legislature.

Holborn, Dwyer and another Democratic appointee, Robert Kasieta, were part of a five-vote majority that gave Green’s campaign 10 days to divest itself of $467,844 in donations from political action committees not registered in Wisconsin – an order the Green campaign will fight in a Dane County courtroom

You can read more of these unsettling emails here.  It is highly disturbing that Wisconsin election officials seemed to think nothing of this.  I served five years on the Federal Election Commission, and cannot imagine not recusing myself, and making public the communications, if lawyers for an interested party had ever lobbied me in such a fashion on an enforcement matter.

But equally disturbing is the logic of Governor Jim Doyle’s lawyer, Mike Maistelman: “Even if this ends up in court, it is a PR victory for us since it makes Green spend money and have to defend the use of this … money.” (Emphasis added).

As I have often noted, the abuse of the campaign finance enforcement process is an inherent cost of campaign finance regulation.  Rarely are lawyers so brazen, but Maistelman’s logic is not lost on other practitioners in the field.  Filing a complaint takes relatively little effort and little more than speculation of wrongdoing.  Once filed, the complaining party can typically sit back and watch at no cost to himself.  He can issue public statements complaining about the “serious allegations” leveled against his opponent, as Governor Doyle did again this week.  Even if it is without merit, it costs the opponent thousands in legal fees to defend, and puts him or her on the defensive with a credulous press ever eager to show it’s “worldliness” by trumpeting allegations of scandal.  As Maistelman noted quite bluntly, it didn’t matter if the charge was good or bad – “it is a PR victory… it makes Green spend money.”

No one should deceive themselves that this is but the tip of the iceberg.  It may be one of the more brazen cases, but it is not an isolated one.  As Jan Baran, one of the nation’s most experienced campaign finance lawyers and, early in his career, the top lawyer for FEC Commissioner Joan Akins, told Reason Magazine a decade ago, ” “The political police have never been benign anywhere. Why do we think we can be any better at it than any other society?

Examining the behavior of regulators and interested parties in Wisconsin, we might also ask if campaign finance reform does not contribute to corruption.

Brad Smith

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