SkepticsEye 2.0

I'm Unreliable!

2010-06-02T16:49:00.000-04:00

As you no doubt gathered, given that I haven't been blogging.

That's because I'm busy as a little bee at my new office. Look for me there in the coming days.

In other fraud news!

2010-05-28T10:22:00.000-04:00

Kenneth Starr (not THAT Ken Starr), a NY financial advisor, donor to various Democratic causes and committees, and business partner with Marvin Rosen (he of former DNC glory) has been charged with stealing $30 million from clients.

See reports here, and here, too.

Glass Houses

2010-05-28T10:14:00.000-04:00

Oops. It seems the Connecticut campaign funders are a little careless with the public fisc.

The state paid $192,261 to a private contractor for information technology, and no SEEC supervisor approved the purchase or verified that the amount billed represented services rendered, according to the audit.

"That is uncommon," Jaekle said. "It is possible the state paid much more than what it actually got."

There's no truth to the rumor that the agencies finances were managed by Chris Ward.

The Longmont Saga Continues

2010-05-28T10:10:00.000-04:00

See here.

What began as a meeting about nuanced campaign finance rules quickly turned into a fiery debate about the role of government in approving the rules that it must play by. Several citizens showed up denouncing the city's current law, declaring that they were "thoroughly disgusted" with the way that campaigns operate.

Looking Good in Kansas

2010-05-27T09:18:00.002-04:00

I may need to revise all my personal stereotypes about Kansas.

One way to get money out of politics

2010-05-27T09:11:00.000-04:00

Suck it all up for onesself and one's chosen beneficiaries.

Piercing the Marriage Veil

2010-05-26T08:22:00.000-04:00

A Maine Judge has ordered the National Organization for Marriage - a 501(c)(4) "qualified non-profit"- to reveal its donors to state officials.

In a ruling dated Sunday, U.S. Magistrate Judge John Rich III said the National Organization for Marriage, which contributed $1.9 million to the repeal campaign, should give documents relating to donors and fundraising dating back to Jan. 1, 2009, to the Maine Attorney General’s Office.

Is this an easier case than Doe v. Reed? Harder? Unlike Proposition 8 in California, these donors gave to the group, not a political committee. Unlike Doe v. Reed, these people gave to a group, and didn't sign a petition (what some deem a "legislative act" entitled to less confidentiality). The expectations of donors to a (c)(4) QNC are what, exactly? If they've read NAACP v. Alabama (a 52-year precedent, by the way), they probably think they are protected from identification.

Competition and Contribution Limits

2010-05-25T09:12:00.000-04:00

Several months ago, the Brennan Center went all jiggy over a report, co-authored by Tom Stratmann of the GMU Economics Department, that they claimed showed that low contribution limits improved competitiveness in elections and helped challengers. From their editorial in The Hill:

But our study found that low contribution limits cut into this advantage and help challengers. With lower contribution limits, incumbents cannot amass the types of war chests that scare away potential challengers.

This stood in stark relief to what many people thought, which is that low contribution limits made it harder for challengers to compensate for other advantages of incumbency, and could protect incumbents from competition.

("Jiggy." So '90s.)

This prompted a short but meaningful kerfuffle, between the Brennan Center and me, over whether Stratmann's findings deserved to be seen as the last word on this topic. Here, here and here.

I left the debate with this point: that the dummy variables used in the study to control for other effects would not account for redistricting effects if redistricting and low-contribution limits worked at the same time to produce some change in the competitiveness of elections. That is, you might think you are measuring the effect of low contribution limits, because the low limits (at only certain levels - read the paper) appear to increase competitiveness, controlling for other variables. But, it could be that the effect the study attributes to contribution limit levels is really due to redistricting reform. Correllation isn't causation, after all.

Tom is quite up front about this in the paper, notwithstanding that the Brennan Center represents his findings as conclusive, rather than as a piece of literature to be revisited in the pursuit of real knowledge. He observes:

Redistricting occurred for the 1982, 1992 and 2002 elections. This analysis captures increases or decreases in competitiveness due to state-wide redistricting via state and year effects. This is certainly less than perfect, but aspects of redistricting that are not captured by these effects will only bias the estimated coefficient on contribution limits if redistricting is correlated with the passage of more restrictive campaign finance laws.

Why bring up these fond memories? The lovely people at the Election Law Journal, quite possible the best peer-reviewed journal devoted to election law on the planet, and a publication that is quite kind to publish me once in a while, have published Stratmann's study as an article in their latest issue.

With the same paragraph.

Apparently, what seems like a plausible story, that state contribution limit changes during the time period could correlate with redistricting reforms that could impact incumbency advantage, didn't persuade Stratmann to control for them separately. Which would take time, and might be hard to do.

The takeaway is this: We don't KNOW that low contribution limits help challengers and increase competitiveness. We know that Stratmann has found a non-zero difference in states with very low contribution limits (under $200) and high contribution limits (over $2000) but no difference in states with limits between these two levels, which IMHO is a little strange. We know that the Brennan Center has oversold this study. Stratmann's appearance at the May 2009 panel where the report was released doesn't help.

Stratmann's study is what it is. No regression can control for every variable. But redistricting reform, campaign finance restrictions, and term limits often travel together in proposals to reform state politics. If there is omitted variable bias, as I suggest, someone with better math skills than mine could obtain the data and work through the analysis. It would have been nice of Stratmann had done this with his ELJ article.

Doe v. Reed Podcast Available!

2010-05-24T10:39:00.000-04:00

Could life GET more exciting? Enjoy a panel discussion about Doe v. Reed and the place of anonymity in a democracy, featuring John Fortier and Robert Frommer, hosted by your's truly, and produced by the Federalist Society.

More Love for Campaign Finance

2010-05-24T08:36:00.000-04:00

Profile of Chris Gober, Texas born and DC trained political attorney. No mention made of how he felt about the Bush 2004 position viz 527s and the donors who want[ed] to support them.

Loosening Restrictions?

2010-05-24T08:31:00.001-04:00

Today's Boston Globe campaign finance coverage reveals a secret effort to make campaign finance restrictions more lenient. Sort of. Enjoy the following excerpt, with annotations:

Little-noticed language in campaign finance bills would help parties and their candidates get around restrictions on working together on political campaigns — essentially allowing parties to tap into their deep well of funds to more directly help their favored candidates.

Um. People noticed. I daresay it is a critical part of the bill, actually.

[snip]

The US Chamber of Commerce has said it is preparing to spend $50 million on midterm elections, an early sign of a corporate media blitz to come.

Powerful unions are also planning massive spending on the fall campaigns. Officials from the American Federation of State, County and Municipal Employees have told The Hill newspaper that the union plans to top $50 million in spending, while the Service Employees International Union reportedly plans to spend $44 million.

Imagine. A potential sea-change realigning election. At which the direction of foreign and domestic policy could reverse. Or not. And corporations and unions want to participate. Jeez, next thing you know they'll employ prominent individuals to talk with their powerful friends about the content of legislation.

[snip]

The effort to strengthen the power of political parties would “address the disproportionate influence’’ the Supreme Court gave to big corporations by striking down broadcast regulations in the 2002 McCain-Feingold campaign reform bill, said US Representative Chris Van Hollen, a Democrat from Maryland and chairman of the Democratic Congressional Campaign Committee.

Could someone please advise Rep. Van Hollen that larding the public record with exhortations about "leveling" is probably not the most clever strategy?

But even as lawmakers try to counter the effects of the Supreme Court’s ruling, the voice of the average citizen is already shrinking, said Sarah Dufendach, vice president of legislative affairs for the watchdog group Common Cause.

“Regular-old Joe Six-pack has been drowned out for a long time,’’ she said. “The court made a bad system intolerable.’’

That's just because Joe picked the wrong sobriquet. He should go with Joe the Plumber.

LundLofGren Committee

2010-05-20T15:28:00.000-04:00

Midst the hilarity of Dan Lungren being called "Lofgren" and Zoe Lofgren being called "Lungren" the committee debated the necessity of adding "labor unions" explicitly to the DISCLOSE Act.

Lungren made the point that if a corporation that is a contractor poses a risk of corruption, and thus should have its right to make expenditures restricted, the union representing that contractor's employees could also. His hypothetical entertained the wild notion that an employer and a collective bargaining representative might be on the same side of a debate. The contractor would be restricted, but the union would not be so restricted, and that seems irrational.

It was pretty clear to me that the majority's side missed this point entirely.

DISCLOSE Markup Live Feed

2010-05-20T13:03:00.001-04:00

Is here. Or so I'm told.

Come to Your Census Blog

2010-05-19T09:03:00.002-04:00

This is fabulous. Also scary.

Michigan CU Fix, with a Photo!

2010-05-19T08:19:00.000-04:00

Here's another story about the Michigan legislation to "fix" state law after Citizen's United.

This one, however, is different. We get to see the visage of the brave legislator who has authored the legislation. Look him in the eye, if you dare.

Heady Brew

2010-05-19T08:15:00.000-04:00

Take an incumbent politician (here a mayor, but pretty much anyone will do), add a charity and a girlfriend, and stir.

Boy am I happy I missed this

2010-05-18T09:36:00.000-04:00

My kids don't need to see me throw another show through a plasma screen. Once was bad enough.

Is she the kind to take the bus?

2010-05-18T09:02:00.000-04:00

The Sue Lowden campaign continues to entertain. Today she stand accused of having taken an excessive in-kind contribution in the form of a really ugly RV. The story has legs in part because of her reaction:

The tan 2001 Monaco, complete with kitchen, shower and bed, was bought by Giudici, a former casino owner, in May 2009 from a Montana dealer, according to a public database of vehicle registrations.

A few months later, Lowden entered the race and became the front-runner, a status assured in part by the big bus that the campaign had wrapped in a colorful advertisement for her.

In a recent TV appearance, Lowden said a supporter had donated it to her.

...

The campaign has offered shifting explanations for the bus’s ownership.

Charles Spies, an attorney for the campaign, wrote in an e-mail last week: “The RV is titled in its owner’s name (not Sue Lowden or Lowden for Senate).”

Is that the end? Nope.

In response to a records request, however, the DMV confirmed that Lowden is a titleholder with Giudici, indicating co-ownership status.

Later, the Lowden attorney sent a follow-up e-mail: “Although (Lowden) is not the owner of the vehicle (but instead is using it through a private lease agreement), (Lowden) and the owner are on the registration for insurance purposes.”

Some points:

First, don't sandbag your lawyer.

Second, if you feel the need to weave a story or prevaricate, have your press secretary do it.

Third, don't answer questions about legal issues if you haven't already been briefed by your lawyer.

It seems the "edit" function in the speech centers of Sue Lowden's brain has been disabled. But if you're running for the U.S. Senate it isn't too much to ask that you exercise a little self discipline.

Federalist 15

2010-05-18T08:45:00.000-04:00

I admit it isn't one of the popular Federalist papers. But it is surprisingly relevant. Here's my Blog post for the Constituting America project.

Ken Vogel, On Ken Vogel and Campaign Reform

2010-05-17T11:10:00.000-04:00

I've exchanged a couple of notes with Ken, who given he's just been married should, well, you know, be doing something more interesting. Anyhow, he wanted me to share this with all of you:

Saw your post based on my wedding announcement and, though it seemed to be in good humor, it nonetheless raised a serious issue to which I feel compelled to respond.

The quote you cited from my wife (still feels weird to type/say that) describing our common interest in campaign finance differs from the language I used in writing the submission, and, I fear, could be subject to misinterpretation.

My phrasing - "a fascination with federal campaign finance rules" - which similarly appeared in the announcement, more accurately reflects my interest in the subject, which is as a reporter engrossed by the evolving struggle between those seeking channels through which to inject money into the political system; lawmakers and advocates seeking to block, preserve or expand those channels; and the regulators and courts refereeing the fight.

In other words, I am strictly and proudly agnostic on campaign finance, as I am on every subject I cover. I think my reporting reflects that.

My wife, on the other hand, is an unabashed supporter of strict campaign finance regulation. We have had many discussions and even debates in which she has argued the efficacy of such rules, with her positions grounded in her affiliation with the side of the struggle that has successfully branded itself as supporters of "campaign finance reform” – a public relations coup that frustrates advocates for reducing regulation, which is, of course, a different type of reform.

Before my wife enrolled at American University’s Washington College of Law (where she organized campaign finance courses taught by Karl Sandstrom), she worked on campaign finance issues for Chris Shays. In fact, the former Congressman was a guest at our wedding – though I should point out that so too was Center for Competitive Politics Communications Director Jeff Patch.

When my wife told the New York Times “He loves campaign finance reform,” she was using the shorthand that supports her perspective and background on the issue, rather than describing my views on it.

I certainly expect – and indeed encourage – folks on all sides of the campaign finance debate (and every issue I cover) to call me out if they see signs of bias in my reporting, but I don’t think they’ll find many.

Anyway, sorry for the serious and lengthy response to what seemed to be a quick and light-hearted post, but I take seriously my professional reputation and objectivity, and have worked hard to preserve both.

Best wishes, Ken. And I am sorry to have provided a distraction taking you from your family and your friends.

Candidate Disbursements!

2010-05-17T08:59:00.001-04:00

YES! The FEC has responded to massive lobbying by special interests (OK, I wrote an article about this once) and has made available candidate disbursements in a downloadable form.

The uses of political funds are just as interesting, important, and potentially worrisome as the sources. Traditionally, it has been the use of money that has rankled reformers - from "walking around money" to employing sweethearts to embezzling treasurers. Presidential accounts that receive tax funding are audited, but other campaign committees that look sound on paper are not. I don't believe random audits would be a game worth the candle, but transparency and the self-discipline it might prompt is another thing.

Having a searchable interface would be nice, but this is a great first step.

Thank You Ben Smith!

2010-05-17T08:51:00.000-04:00

You made my day. Thugs. Criminals. Bragging about illegal contributions on Facebook. Who knew?

How to react? By posting the ad on my Facebook page!

Missouri Reform

2010-05-17T08:45:00.000-04:00

Notwithstanding the confusing title of this article, Missouri is not considering "caps" that are spending limits, but "caps" that are contribution limits. Are we in for a Vermont-style suppression effort? Doesn't seem so:

Missouri voters first implemented donation caps in the 1990s, and the Assembly voted to eliminate them in 2006. That law was tossed out by the state Supreme Court because of procedural problems, and the Republican-led Assembly voted again to repeal donation limits with about one hour remaining in the 2008 session.

Missouri in 2008 capped donations at $1,350 for candidates to statewide offices, $625 for Senate candidates and $325 for House candidates.

A special House committee that was created to recommend ethics changes this year proposed to restore campaign contribution limits at $5,000 per election for all candidates. But that proposal stalled progress on any ethics changes in the House, where roughly three-quarters of the members there had decided two years to scrap limits.

$5,000? Hey, if it was good enough for Congress in 1940, why the heck not? Yet the most interesting comment comes here:

"Campaign finance caps have nothing to do with ethics. There, I said it," said sponsoring Rep. Tim Jones, R-Eureka. "And the Supreme Court of the United States agrees with me."

One might observe that ethics rules have "nothing to do with ethics" as "ethics" is usually understood (that is, voluntary good behavior, not simply following mandated standards) but that argument is for another venue.

Congrats to Ken Vogel, but . . .

2010-05-16T08:17:00.001-04:00

As maniacal as I am, I didn't marry Steve for his campaign finance views. From the Times Weddings page:

“He honestly struck me as the most attractive person I had ever met in my entire life,” Ms. Rosengarten said. “He has shockingly blue eyes and the most adorable dimples I have ever seen. He loves campaign finance reform, that was all I needed to know. We knew instantly that we were intellectually attracted to each other.”

Here's hoping Speechnow doesn't tear this beautiful union asunder.

UPDATE: I happen to think Ken is a terrific, fair, and well informed reporter. And his eyes . . . well, they're very nice too. But really - bonding over campaign finance law? For geeks like me, this is wonderful news.

Don't Let Precedent Get in the Way of a Good Rant

2010-05-14T08:49:00.000-04:00

The New York Times doesn't care that the FEC followed long-standing interpretation, in concluding that redistricting is not a federal election.

Sure, I had my jibe at the text of the draft AO (I tease because I love). But that doesn't change the fact the conclusion is sound, and what lawyers and activists believed to be the scope of the law. Redistricting battles and not "in connection with" federal elections. They occur within state legislatures and governments, for starters.

And the FEC draft of which I made some fun, had a point. Neither is the war in Iraq. Sure, both have some "effect." But so does the mortgage meltdown. Not everything that happens that has political consequences is "in connection with" a federal election. The line has to be electoral advocacy, or express advocacy, or fundamental equivalents, or whatever.

One wonders how the NYT would advise the FEC to explain a change in interpretation. Perhaps this "post-partisan" era we live in required a reversal?

Shocked, shocked

2010-05-14T08:40:00.000-04:00

Lawyers and rose-colored glasses.

Covered Communication Dustup

2010-05-13T09:30:00.000-04:00

Oops. Someone figured out that the "covered communications" restricted in the DISCLOSE Act include, well, any communication that is "publicly distributed or disseminated."

Which is what, exactly? VOD, a la Hillary: The Movie? Is a communication available to a subscriber for a fee "public." I dunno. Maybe.

Is SkepticsEye 2.0 with its literally dozens of loyal readers, "publicly distributed?" Anyone with a browser could theoretically read it, and Google scrapes by every now and then, so a Google search would turn it up. Suppose I'm not me, but instead Glen Reynolds? Matt Drudge? A columnist for HuffPo? Halliburton?

How about Tweets? You need to "follow" a Twitter-er to get their tweets, or "friend" them on Facebook. Is that "public?" How about if you go into the Tweet archive at the Library of Congress?Isn't much of the controversy about Facebook's ever-changing policies about how "public" Facebook compels a member to become?

How about a blast email? To my friends? To a list I've purchased for the purpose? A posting on a listserv? A phone tree to the neighborhood? A phone tree to all the employees of Halliburton?

We just don't know. Defenders of the DISCLOSE Act shouldn't pretend otherwise.

Kagan and Campaign Finance

2010-05-13T09:02:00.000-04:00

Everybody's trying to figure out what Elena Kagan's views are on campaign finance regulation. As I speculated before, she might be an old style civil libertarian - Floyd Abrams with more hair.

Or she might be an Active Liberty - Regulation to Further Democratic Principles person. As a policy preference, I like democracy as much as anyone, but this school meanders dangerously close to anything-goes navel gazing, and is untethered to the judicial function of interpreting the laws we have, then reconciling then to the Constitution we have.

Or she might not have any carefully crafted perspective. She taught Administrative Law, Constitutional Law, Civil Procedure, Labor Law, and classes about the President. So she probably understands both substantive and procedural due process, interpleader, executive privilege, and Carolene Products fn. 4. Which means it is unlikely she has had the luxury of mastering Gingles, Skelly Wright, nonretrogression, or the "major purpose" test.

She looks like a lady who gets Beer, however.

Ackerman and "Pay-for-Play"

2010-05-12T08:44:00.000-04:00

Bruce Ackerman, Yale Law prof and purveyor of strange ideas, recently had this to say about the Citizens United "fix" legislation:

Most importantly, I think, is the provision in the bill that bars campaign contributions from any firm that does more than $50,000 of business with the government is very consequential. A very substantial percentage of the Fortune 500 does more than $50,000 of business with the government. It happens to be the consequence in a world of big government that almost all large firms engage in business with the government. This provision will force the court to think hard about the classic rationale for traditional campaign finance reform, which is to say corruption, and the appearance of corruption. It's one thing to have a general statute barring all corporations from spending freely. It's another one to have a statute focused on what is obviously a problem, which is pay-for-play. This will force the court to decide if they're really saying pay-for-play and corruption are not a serious problem? And if not, then what are they saying?

First, most people call it "pay-to-play" although since Ackerman is at Yale and I'm not, I suppose we will all follow his lead and change the phrase.

Second, the notion of "pay-to-play" is most useful in the world of no-bid contracting. If "business with the government" was obtained through competitive bidding, then unless the bidding itself was corrupted (a separate problem, and a crime), whatever expenditures that winning bidder made should be irrelevant.

Finally, "pay-to-play" laws are structured differently than expenditure bans. A "pay-to-play" law makes contracting contingent on not having made a contribution or expenditure. It does not make the expenditure contingent on not having business with the government. This is not a mere semantic point. The government has latitude to restrict with whom it does business. It does not have latitude to pick who gets to speak about politics.

Campaign Finance Reform Is Essential

2010-05-12T08:31:00.002-04:00

The latest from Trinidad.

Bad Candidate Name of the Week

2010-05-11T09:14:00.002-04:00

Krystal Ball?

Who is Elena Kagen?

2010-05-11T09:12:00.000-04:00

This rather lengthy Politico story assesses Elena Kagen and her paper record. Lots of quotes, including this:

“She appears to have gotten tenure at the University of Chicago based on a single article, something that’s not allowed at most top schools,” said Jonathan Turley, a law professor at The George Washington University. “She is certainly a nominee who has one of the thinnest records, in terms of writing, that we have seen in years.”

Quoted eminences go on to speculate whether this is a problem and why this might be. Was she busy? Selective? Unimaginative? Dim? Whatever the justification, the last one at least would account for her administrative successes in law academia, since she wouldn't be acting the boorish egoist or threatening turf.

Wisconsin Responds to CU, sort of

2010-05-11T08:53:00.002-04:00

Notwithstanding the implication of this article, I suspect Wisconsin already had disclaimer and disclosure requirements, but needed to adapt them to include corporate and labor expenditures.

Hayward DISCLOSE Paper

2010-05-10T15:57:00.002-04:00

My latest paper, written for the New Federal Initiatives Project at the Federalist Society, is here. It sets forth the arguments for and against the various provisions of the DISCLOSE Act.

Kagan and CU

2010-05-10T08:59:00.000-04:00

This HuffPo post suggests that Elena Kagan's scholarship puts her on the Citizen's United side of the First Amendment, not the Austin side.

Given that I have every reason to suspect she is a consistent civil libertarian, this would not surprise me at all. One hopes that she will not be bullied into a "nuanced" rethink.

Once upon a Time

2010-05-10T08:52:00.000-04:00

. . . not so very long ago, a debate raged over disclosure of the "true" source of political commentary.

Experts predicted that, without mandated disclosure of bloggers' identities, among other things, large corporations such as Halliburton could spend millions on the Internet to influence voters. The merits of what Halliburton might want to say was secondary. The public needed to know that it was Halliburton saying it.

And? The FEC continued to leave th Internet alone for the most part. Blogging has taken a back seat to social networking, where knowing the identity of the Facebook friend/Twitterer is the whole idea. This is just to observe that one should expect the unexpected.

Ted Olsen's Testimony

2010-05-07T08:57:00.000-04:00

Olsen's written testimony for yesterday's CHA hearing contained this notable quip:

Schumer – Van Hollen’s selective restrictions on persons on the basis of their nationality or citizenship violate numerous constitutional requirements. The bill would impose on domestic corporations the prohibitions on contributions and expenditures that now apply to foreign nationals when, for instance, a foreign national owns 20% or more of the corporation’s voting shares. § 102(a) (amending 2 U.S.C. § 441e(b)). Discrimination based on national origin is prohibited by the Constitution and scores of federal statutes. See Graham v. Richardson, 403 U.S. 365, 372 (1971); 42 U.S.C. §§ 2000a, 2000d, 2000e.

It is ironic indeed that at the very time that so many political figures and media opinion-makers are denouncing as discriminatory the effort by Arizona to enforce federal prohibitions on illegal immigration, Congress would consider a measure that would “abridg[e] the freedom of speech” of selected persons based on their national origin.

Bob's Leak Free Operation

2010-05-07T08:35:00.002-04:00

Really. Then what's this?

Hi, Bob!

Voting Rules in Britain

2010-05-06T09:21:00.002-04:00

Answers to such questions as Can I bring my dog? Must women wear tops? Can I vote if I'm drunk?

Why does this all sound so much more fun than US election day?

Jim Gibbons, Not a Chick Magnet After All?

2010-05-06T09:03:00.000-04:00

It just gets better and better.

DISCLOSE Hearing Next Tuesday

2010-05-06T08:44:00.000-04:00

Who will testify?

Here's the roster for today's hearing, BTW. David Bossie, Ted Olsen, and a host of people who make it their life's ambition to regulate politics.

Repeat After Me: BP Doesn't MAKE Contributions

2010-05-06T08:33:00.000-04:00

Yesterday's take on the tragic BP oil spill did its best to link BP to campaign money to Obama. Politico starts its coverage thus:

While the BP oil geyser pumps millions of gallons of petroleum into the Gulf of Mexico, President Barack Obama and members of Congress may have to answer for the millions in campaign contributions they’ve taken from the oil and gas giant over the years.

This gets the TIME political blog's attention. It rightly criticized Politico's perspective, but both sources, and numerous others (including Carl Cameron on Fox News last night, who should really know better), mistakenly attribute individual contributions by employees of BP as "BP contributions."

They aren't. To the extent any contribution is from "BP" it would be a PAC contribution. But those aren't any fun to write about, since they're CAPPED at $5,000. Maybe it would be newsworthy to see to whom BP's senior executives and poobahs donate, but again, these stories aggregate any donor who has listed BP as an employer into the BP pool. Remember, any contributor who nets over $200 gets itemized in a campaigns disclosure reports, and besides being named, their address, occupation and employer are also reported, unless they have had the temerity not to provide that information (after being asked, in writing, twice).

Not only is this wrong, but it is unhelpful. It breeds ignorance and cynicism. No wonder ordinary folks think corporations make direct contributions to candidates and buy votes, despite that law. That's what they're told.

FEC's Existentialism: Federal Officeholders at Soft-dollar Fundraisers

2010-05-05T09:45:00.000-04:00

Featured speaker? Good. Other honorific that is related to fundraising. Not so good.

So, while Congress is running around (potentially) loosening restrictions on parties, the FEC remains back at camp, trying to respond to the Shays decisions.

Another Money Laundering Complaint

2010-05-05T09:04:00.002-04:00

But Michigan isn't Texas, and the FEC isn't Texas, either.

Longmont Campaign Finance in the News

2010-05-05T08:53:00.000-04:00

Longmont Colorado. Population 86,000, more or less. Not just home to great canned beer and the Chairman of the OCE. But a troubled community. Troubled about campaign finance reform.

Longmont revamped its city campaign finance rules a year ago, and felt the lash of litigation. It cost the city. Plenty.

Now the city fathers are considering revising their rules:

In January, the City Council agreed to allow Election Committee members to spend time combing over the LFCPA and coming up with recommended changes. Committee members have been meeting weekly for the past two months.

The committee will present its report to the council tonight, with recommendations that include the following:

Delete the requirement that the city clerk has to publish in the newspaper the names of people who contributed $100 or more during a campaign.

Change the trigger to report independent expenditures from $100 to $250.

Change the threshold for candidates to report the name and address of individual contributors from $20 to $50 per election year.

Add and define “express advocacy” in the definition of what counts as an “electioneering communication.” That will clarify that a communication has to advocate voting for or against candidates or ballot issues (such as saying “re-elect,” “defeat,” or “vote for”) to count as an election communication.

Remove the clause that says communications have to be within 90 days of an election to be considered “electioneering communications.”

Apparently in Longmont even disclosure has its limits.

Crist Portrait at $6,200

2010-05-05T08:44:00.000-04:00

See here.

Party Expenditures in DISCLOSE

2010-05-05T08:40:00.000-04:00

CQ describes the DISCLOSE bill's provision loosening the rules under which party committees can make expenditures.

Marc Elias's recollection is a little different from mine, although I agree as a matter of policy:

“Parties never should have been subject to the tighter coordination rules passed in 2003,” Democratic attorney Marc Elias explained about the unintended consequences of the Bipartisan Campaign Reform Act. “Ads that are sponsored by parties were never a target. This would restore the law back to prior to McCain-Feingold.”

Interestingly, while Marc was happy to speak for attribution quotes later in the article from a "GOP attorney" aren't nearly as specific. What publicity-shy campaign finance practitioner did CQ unearth?

40 years ago

2010-05-05T08:29:00.000-04:00

this happened.

Congrats!

2010-05-04T13:18:00.000-04:00

Brad Smith is a recipient of the 2010 Bradley Prize.

No word yet on whether he will attempt to spend his stipend secretly through shell entities to influence campaigns for federal office. I think it unlikely.

Crist Portrait at $5,600 already

2010-05-04T09:36:00.001-04:00

When will we know the identity of the purchaser?

Today's Most Boring Headline

2010-05-04T08:51:00.000-04:00

Modest spending continues in Denton campaigns

Wrong about "Right to Know"

2010-05-04T08:44:00.000-04:00

Democracy 21's release today claims to bust a myth regarding DISCLOSE - the myth being that MCFL groups should be protected from the Act's disclosure requirements. It says:

Myth: Under the new legislation, non-profit (c) (4) advocacy organizations (most are incorporated) that raise money only from individuals and accept no funds from corporations or labor unions should be exempt from having to disclose the donors who fund their campaign-related expenditures. These advocacy groups should receive different treatment than for-profit corporations, labor unions and trade associations, or non profit (c) (4) advocacy groups that receive both individual and corporate or labor union money.

Reality: The disclosure legislation implements the fundamental principle that the public has a right to know the groups that are spending money to influence federal elections and the donors who are financing these “campaign-related” expenditures – defined in the legislation as independent expenditures and electioneering communications.

This disclosure goal is no way disappears nor is it any less relevant for (c) (4) advocacy groups that receive their funds only from individuals. The public still has the right to know who is funding the group’s campaign-related expenditures, even if the funders are only individuals.

While incorporated (c) (4) advocacy groups that receive only contributions from individuals were exempted by the Supreme Court from the ban on corporate campaign spending prior to the Citizens United decision (so-called MCFL corporations), this exemption has never applied to disclosure.

Well? Look - bald assertion is not an argument. What justifies this "public right to know" ? The State of Alabama wanted, via its state corporations code, to unearth the "interests" behind the NAACP, by compelling production of its membership lists. The Court said no.

We hold that the immunity from state scrutiny of membership lists which the Association claims on behalf of its members is here so related to the right of the members to pursue their lawful private interests privately and to associate freely with others in so doing as to come within the protection of the Fourteenth Amendment. And we conclude that Alabama has fallen short of showing a controlling justification for the deterrent effect on the free enjoyment of the right to associate which disclosure of membership lists is likely to have.

In NAACP v. Alabama, the state at least was arguing a specific (if unavailing) need for the lists - to ascertain if the NAACP was engaged in interstate activities and thus subject to state corporate registration requirements. What's the need here? If a group funds a communication that says "Reelect Representative John Doe" why does the public need to know that your parents gave that group $1,000 in unrestricted funds?

Arkansan?

2010-05-03T09:56:00.000-04:00

Those who live by spellcheck will die by spellcheck.

Hello. My name is Allison Arkansan. I mean really - wouldn't somebody notice?

Socialists and Disclosure

2010-05-03T08:38:00.002-04:00

The irony. Bernie Sanders is co-authoring the DISCLOSE Act.

Broadcasters Oppose Lowest Unit Expansion!

2010-05-03T08:32:00.000-04:00

Of course they do.

Recently someone observed to me that the "lowest unit charge" requirement was obsolete anyway, because broadcasters sell time via something more akin to an auction. That is, the rate card is a thing of the past. Could someone with a more sophisticated understanding of telecom than mine enlighten me?

Hunt on DISCLOSE

2010-05-03T08:25:00.000-04:00

Al Hunt writes as if DISCLOSE just requires "disclosure."

Telling pull quote:

What is vital to any legislation, says Anthony Corrado, a campaign-finance expert and professor at Colby College in Waterville, Maine, is to ensure that companies or unions can’t disguise efforts to help or hurt candidates by using front groups.

“It’s important to get disclosure of the first resort,” says Corrado, who is less enthusiastic about some of the non- disclosure provisions in the Van Hollen-Schumer proposal.

Too bad we don't get Prof. Corrado's complete view.

By the way, I would support this legislation on one condition: that it bar the use of "sunshine is the best disinfectant" or any version of that trite and unhelpful metaphor. True, that would be a content-based speech restriction, but it serves the compelling state interest of reducing stupidity in our society.

You Wouldn't Want them to Think Carefully About the Bill

2010-05-02T12:54:00.000-04:00

Obama Urges Congress To Act Quickly on Campaign Finance Reform.

Someone Out There Needs this Pin

2010-05-01T09:16:00.002-04:00

Don't all bid at once.

Transparency and Modesty

2010-04-30T09:34:00.000-04:00

With DISCLOSE, disclosure has become the means to pursue the time-honored campaign finance goal of buggering up your rivals' and opponents' political efficacy. Partly this is because arguments resisting disclosure (even disclosure of trivial information or very low-level donations, e.g.) come up against a question with tons of populist appeal - "what are you trying to hide?"

Daniel Solove, of GWU Law, thinks this argument is dangerous, and you can read his paper here on SSRN.

This is the abstract:

In this short essay, written for a symposium in the San Diego Law Review, Professor Daniel Solove examines the nothing to hide argument. When asked about government surveillance and data mining, many people respond by declaring: "I've got nothing to hide." According to the nothing to hide argument, there is no threat to privacy unless the government uncovers unlawful activity, in which case a person has no legitimate justification to claim that it remain private. The nothing to hide argument and its variants are quite prevalent, and thus are worth addressing. In this essay, Solove critiques the nothing to hide argument and exposes its faulty underpinnings.

Reax to DISCLOSE

2010-04-30T09:00:00.000-04:00

The Blog of the Legal Times collected several. My favorite:

Theodore Olson, partner in the Washington office of Gibson, Dunn & Crutcher, and winning counsel in Citizens United: “Though it comes wrapped up in language of ‘transparency,’ the plain intent of the Schumer and Van Hollen legislation—the purpose invoked by its sponsors—is to discourage people from exercising their constitutional right to free speech. One can understand why today's party leaders may want to silence discussions on their continued fitness for office, but the First Amendment simply does not tolerate it.”

No mention made of any other campaign finance case he might have argued.

Redistricting and elections

2010-04-30T08:39:00.000-04:00

The FEC did not produce an advisory opinion 2010-03 yesterday, reports CQ. Which raises the disturbing possibility that the long-held precedent at the agency of construing "in connection with an election" to exclude the redistricting litigation process is under a threat.

And by precedent, I mean an interpretation that has been the rule since even before 1990!

Vat can Ve Learn from Valdo?

2010-04-30T08:23:00.000-04:00

Werner Herzog discuses the futility of life, which would of course include campaign finance reform.

We've Got Van Hal[l]en

2010-04-29T15:31:00.001-04:00

right here. It's ten pages shorter than the Senate counterpart. Thank goodness for small favors.

No David Lee Roth, however.

UPDATE: The two notable differences between the two bills are that Van Hollen does not tackle media rates or the Senate filing with the FEC. If there are other differences I didn't spot them.

Media Rates and Davis v. FEC

2010-04-29T14:04:00.000-04:00

If I am reading the Schumer bill correctly, the section on media rates starting at about p. 80 provides that if expenditures/electioneering communications are made in a race, once those expenditures exceed $50,000, the candidate or party targeted can avail themselves of the lowest unit cost. Given the broad definition of "electioneering communication" in the new bill, it seems the upshot of this is to provide an incumbent who has been called out in an issue ad a subsidized means to respond.

In Davis v. FEC, the Court held unconstitutional a statute that provided candidates in races with wealthy self-funded opponents a higher contribution limit. Of course this is different, but I think the principle is similar - since when can Congress provide a benefit to one side of a political debate not available to the other side?

Senate Filings

2010-04-29T13:52:00.000-04:00

Don't worry about a poison pill being added to the Schumer bill - it's already there! (p. 75)

Section 302(g) of the Federal Election Campaign Act of 1971 (2 U.S.C. 432(g)) is amended to read as follows:

‘‘(g) FILING WITH THE COMMISSION.—All designations, statements, and reports required to be filed under this Act shall be filed with the Commission.’’

The Senate would give up its prerogative to file with the Secretary of the Senate instead of the FEC? Has hell frozen over?

Deemed Donations

2010-04-29T13:36:00.000-04:00

About p. 35 has this gem:

RULES FOR DEEMING TRANSFERS MADE FOR PURPOSE OF MAKING EXPENDITURES.—For purposes of clause (i) in determining whether a covered organization or any other person who transfers amounts to another person shall be deemed to have transferred the amounts for the purpose of making a public independent expenditure, the following rules apply:

‘‘(I) The person shall be deemed to have transferred the amounts for the purpose of making a public independent expenditure if—

‘‘(aa) the person making the public independent expenditure or another person acting on that person’s behalf solicited funding from the person or from the person to whom the amounts were transferred for making any public independent expenditures,

‘‘(bb) the person and the person to whom the amounts were transferred engaged in substantial discussion (whether written or verbal) regarding the making of public independent expenditures,

‘‘(cc) the person or the person to whom the amounts were transferred knew or should have known of the covered organization’s intent to make public independent expenditures, or

‘‘(dd) the person or the person to whom the amounts were transferred made a public independent expenditure during the election cycle involved or the previous election cycle (as defined in section 301(25)).

The (dd) clause seems to mimic the approach of the California "one-bite" rule. (Regulation 18215(b)(1) for the geeks in the crowd). Ask any Californian - it's very popular. (Not). That legal conduct can alter the rights of individual and groups post hoc by such a presumption is sketchy, if you ask me.

What about winks? Nods? Nudges? Say no more. There's hope:

‘‘(II) The person shall not be deemed to have transferred the amounts for the purpose of making a public independent expenditure if the transfer was a commercial transaction occurring in the ordinary course of business between the person and the person to whom the amounts were transferred.

That this even needs to be said should underline how broad the "donation" at issue could be. Yet it is incumbent on the donor - not the recipient anybody else - to establish that funds are NOT meant for political spending.

Express Yourself. Carefully.

2010-04-29T12:56:00.000-04:00

Moving through the Schumer bill, on p. 25-26 we find a new definition of express advocacy. Like platform shoes, every decade needs its own definition of express advocacy:

(A) that, when taken as a whole, expressly advocates the election or defeat of a clearly identified candidate, or is the functional equivalent of express advocacy because it can be interpreted by a reasonable person only as advocating the election or defeat of a candidate, taking into account whether the communication involved mentions a candidacy, a political party, or a challenger to a candidate, or takes a position on a candidate’s character, qualifications, or fitness for office; . . .

If a message can only be reasonably construed as advocating the election or defeat of a candidate, of what possible use is the "taking into account" clause following it, except to broaden the category of regulated communications beyond those that could only have one reasonable interpretation? Mentions of a party? An opponent? Opinions about the fitness for office? The safe path would appear to be to say nothing about a federal officeholder. Which may be the idea . . .

Party Coordinated Expenditures

2010-04-29T12:42:00.000-04:00

From p. 24 of the Schumer DISCLOSE copy linked below:

(b) REQUIRING CONTROL OR DIRECTION BY CANDIDATE FOR TREATMENT AS COORDINATED PARTY EXPENDITURE.—

(1) IN GENERAL.—Paragraph (4) of section 315(d) of such Act (2 U.S.C. 441a(d)) is amended

to read as follows:

‘‘(4) SPECIAL RULE FOR DIRECT COSTS OF COMMUNICATIONS.—The direct costs incurred by a political committee of a political party for a communication made in connection with the campaign of a candidate for Federal office shall not be subject to the limitations contained in paragraphs (2) and (3) unless the communication is controlled by, or made at the direction of, the candidate or

an authorized committee of the candidate.’’.

(2) CONFORMING AMENDMENT.—Paragraph (1)

of section 315(d) of such Act (2 U.S.C. 441a(d)) is

amended by striking ‘‘paragraphs (2), (3), and (4)’’

and inserting ‘‘paragraphs (2) and (3)’’.

If I am reading this right, while at the same time this bill expands the scope of "coordinated expenditure" to things that aren't expenditures (that is, mere mention of a "candidate") - as far as parties are concerned, coordination for 441a(d) limits' purposes is only when the candidate benefitting from the party's expenditure is in charge of it. This would seem to be an effort to strengthen the parties in the tug of war with other groups.

We've been struggling for quite a while now to come up with ONE standard for coordination. Is two necessarily better? Is a standard that necessarily requires the feds to engage in invasive discovery to figure out whether a massive expenditure is exempt or not great news? If party coordinated expenditures aren't a hazard to democracy, why not deregulate them?

Senate DISCLOSE has been disclosed!

2010-04-29T12:20:00.000-04:00

The Senate version of DISCLOSE (f/k/a Schumer-Van Hollen) is uploaded for your reading enjoyment here!

Mention has been made that the Senate and House version are "similar" but not identical. Someone must be relishing the potential for a conference committee on campaign finance reform.

Intrade line on NV Senate Race

2010-04-29T10:06:00.000-04:00

Doesn't look too good for Reid: NV.SENATE2010.REP 15:04

Crossing fingers

2010-04-29T08:28:00.000-04:00

Will today be the big day? The day we finally get to see what's in the "bipartisan" ("bi" meaning quite literally, "two") reform legislation touted by Rep. Van Hollen and Senator Schumer, affectionately known by some as VH-S?

Will there be any surprises? Rumor has it that the sponsors may have loosened some restrictions on party coordinated spending. Which would be a neat way to thank Jan Baran for all the hard work he did a decade ago. Not to mention a nice belated sayonara to Justice Souter.

When Intraparty Transfers are a Crime

2010-04-29T08:16:00.003-04:00

only criminals will make intraparty transfers.

Gah.

UPDATE: Meanwhile, in Florida . . .

My latest paper

2010-04-28T14:17:00.000-04:00

is here.

You Want 20%? I've Got Your 20% Right Here.

2010-04-28T14:06:00.001-04:00

Rumor has it - and rumor is all we've got folks, that the Van Hollen-Schumer "fix" to Citizens United will contain a 20% foreign shareholder threshold. That is, if over 20% of a firm's shares are owned by foreign owners, that company may not make independent expenditures in federal elections.

Recall how it is a person comes to own stock. When the stock is first issued (the IPO), market makers purchase it from the company. Afterwards, shareholders purchase their shares through a stock market from other shareholders. There is no company-based clearinghouse involved. Giant grocery knows I am a customer, but Citicorp probably doesn't know I am a shareholder. (I say "probably" because I am too lazy to figure out how I hold that particular investment). Maybe all Citicorp knows is that some person has some amount of its shares in a Schwab account.

Thus, there is no way for the company at any particular time to be able to evaluate the nationality of its shareholders. Furthermore, this mix changes hourly. Share ownership is far more fluid than residence, or even union membership.

But it may be that the foreign ownership threshold is not so much about protecting American elections from foreign money. It may instead be a way to make election expenditures too difficult for corporations to be able to participate. Serving up dysfunctional obstacles to achieve indirectly what the Court has said Congress may not do directly? Would that be what this is about?

Scenes from Post Argument

2010-04-28T13:24:00.000-04:00

Joe Sandler, amicus briefwriter of the day

Jim Bopp (in middle) and the press.

Surprise, surprise

2010-04-28T13:10:00.000-04:00

The Berkeley CA city Council considered a resolution opposing Citizens United. As the article notes, the resolution's supporters suggests attendees bring small signs:

People are bringing small signs to hold up with bold and concise messages such as:

$ = Speech?!

Corporations =?!

End Corporate Personhood!

End Rule Inc.!

Save Democracy!

YES 28th Amendment!

I wonder what Rule Inc. ever did to the good folks of Berkeley?

Dough v. Reed?

2010-04-28T13:00:00.000-04:00

Although apparently this case is REALLY about hidden money in campaigns, today the Supremes gave both sides' advocates the full treatment in the oral argument for Doe v. Reed. For the petitioners, the Justices were skeptical how the First Amendment prohibited releasing the names of individuals who had signed petitions, but did not prohibit open voting, campaign disclosure, etc. For the State of Washington, they doubted there was much real help provided the states in reviewing petitions by the public.

The morning got off to a rollicking start with Justice Kennedy delivering the opinion of the Court in Salazar v. Buono, in which it reaffirmed Congress's power to give away land in the middle of nowhere on which a cross had been set 70 years ago.

I must admit I was disappointed. I sped to the Court this morning looking forward to seeing what would happen when circumstances mixed gay activists and Christians in the Bar member line. Instead, I enjoyed catching up with Joe and Cleta. I was hoping for fireworks. Instead, we discussed smartphones and Citizens United.

I detect a new rule in campaign and election cases. You now must attract a brief from a group of scholars as amici. Then, a Justice will mention it from the bench. (Hey - two times makes a trend.) Today's proud amici is the Democracy Scholars for Democratic Democracies, or something like that. Cudos to Joe and Liz for their fine work.

Predictions? Of course! The holding will be to permit disclosure in general of the petition signer's information. There will be a variety of opinions why this is the law. Some Justices will embrace the idea that disclosure is the default in political regulation. Some will see this as an Election Administration case, rather than a First Amendment case, where states enjoy discretion. Some will see a positive role for "enhancing debate" - which seems to confuse the effect of putting one's name on a petition with putting up a yard sign. Justice Thomas will buy none of this, and he may or may not have company this time.

Big Bopper Bopping in the Morrow

2010-04-27T13:39:00.000-04:00

Just a reminder that the truly incomparable Jim Bopp will be arguing at the Supremes tomorrow, tacking the Doe v. Reed contention that petition signers should be served up to their hostile adversaries. Or that the public really needs to know who's grandmother thinks same-sex marriage, or taxes, or school bonds, or whatever, is or isn't a good idea.

Why Candidates Dislike In-Kinds

2010-04-27T13:32:00.000-04:00

No word yet on whether Sue Lowden, contrary to typical practice, is taking chickens as contributions to her campaign.

Pop Quiz!

2010-04-27T12:49:00.000-04:00

From today's Wall St. Journal comes this excerpt:

[Before Citizens United] outside groups faced restrictions imposed by the 2002 McCain-Feingold campaign-finance law.

For example, campaign attack ads had to be funded by volunteer donations from company employees or union members, rather than from the corporate or union treasury, and those ads couldn't run within 60 days of a general election.

Which of the following best describes this author's mistake?

   a) Corporations are not people.
   b) PACs are not corporations, or people for that matter.
   c) Justice is not blind.
   d) Money is not speech.

Let's not neglect 2010-03

2010-04-27T09:20:00.000-04:00

Another advisory opinion up for consideration is 2010-03, which asks the FEC to reiterate its past interpretation of what is "in connection with" a federal election - and exclude from that term of art redistricting.

Don't get me wrong - I am all for stability and for a responsible (narrow) construction of that phrase. But the advisory opinion isn't content with that and explains:

Moreover, while the outcome of the Trust's activities may incidentally affect elections occurring subsequent to redistricting— for example, an individual's decision whether and where to run may depend on how a particular district is drawn—those strategic considerations can be impacted by any number of factors, such as: changes to campaign finance law, campaign issues that arise and fade with the vicissitudes of current events and pending legislation, changes in the electorate caused by migration, or the effect of State ballot measures on the general political climate, to name a few. The nexus between such considerations, like redistricting, and an individual's decision to run for office are far too attenuated to be considered in connection with an election.

. . and sex scandals . . . are we talking about potential candidates who are deciding whether to run? Or are we talking about individuals already in Congress, protecting themselves and their colleagues? Is the funding of redistricting litigation really as attenuated to holding office as "migration?" Really?

Literary Contributions

2010-04-27T09:08:00.000-04:00

Just think. Without a readily accessible computer database identifying federal campaign donors by occupation, we wouldn't have this!

Now the voting public can take into account which novelists support which nominees when deciding for whom they should vote. Or they can get mad at a writer for supporting a candidate they dislike. Which is more likely? Which serves any governmental interest at all?

Wawa WUT?

2010-04-27T08:51:00.000-04:00

You can feel it in the air - the anticipation of a Thursday FEC public hearing. On the menu? AO 2010-04, in which the Wawa PAC folks request that five specific managers be considered part of the solicitable class for the PAC.

For those of you not fluent in PAClish, if a PAC is connected to a corporation or union, that means that the connected entity can pay the PACs administrative expenses with treasury funds. But the bitter with the sweet is that the PAC may only solicit money from certain executive or administrative employees, shareholders, families of each, and in the case of a membership organization, the group's members.

The Draft AO considers each of the five described managers in turn, and concludes that the PAC can solicit them. Smart guys Mike Toner and Ken Gross have weighed in, however, to suggest that the FEC simplify the whole solicitable class mess by making the FEC rules relate to definitions found in other labor statutes and regulations. Which would be simplifying if one were already conversant with those standards. At least it gets at the proliferation of nonsensical distinctions that likely are driving PAC managers and HR folks nuts.

But this comment seems in these interesting times to lack the bold imagination that marks the high art of campaign finance law practice. Indeed, these solicitations are expenditures, aren't they? And they are independent. And independent expenditures, says Citizens United, pose no threat of corruption that justifies a ban. And isn't a "ban" exactly what we are playing with here - a blanket rule that forbids corporations from talking to certain people about the corporations political activities? Hmmm?

Ah, you say. That would blow a hole in the Court's 1982 National Right to Work decision. Well, yes. Who are you going to believe, me or your own eyes?

Well, now

2010-04-26T17:45:00.001-04:00

We've had a sleep year here on the Skeptic, haven't we? That's about to change.

More between Ciara and Me

2009-05-21T17:30:00.000-04:00

(Cross posted to the Election Law Listserv).

It's round two! On the issue of incumbency, we are in heated agreement that incumbents are different from you and me. So I'll leave it at that.

On the contribution limits study, Ciara states this:

(Incidentally, as to the critique of our analysis vis-à-vis gerrymandering, to the extent that some states have stricter gerrymandering rules than others, Dr. Stratmann controlled for this with state dummy variables. He also controlled for other factors as well to rule out the problem of endogeneity.)

The Stratmann study says this (I added the boldface):

State dummy variables (fixed effects) control for differences across states that are constant within the state over time (1980-2006) but that may influence all of the aforementioned measures of competitiveness. To the extent that these state dummies account for time invariant variables, such as the number of districts, they do not need to be included in the regression equation because the state dummies already control for these variables. State indicators also capture the fact that population sizes differ greatly across districts, which in part explains differences in campaign spending across states (Gierzynski and Breaux 1991, Hogan 2000), and differences in campaign technology. Lastly,?i controls for omitted time invariant state characteristics that simultaneously determine vote shares and the campaign finance regulations.

Redistricting occurred for the 1982, 1992 and 2002 elections. This analysis captures increases or decreases in competitiveness due to state-wide redistricting via state and year effects. This is certainly less than perfect, but aspects of redistricting that are not captured by these effects will only bias the estimated coefficient on contribution limits if redistricting is correlated with the passage of more restrictive campaign finance laws. No theoretical or empirical work suggests that redistricting is correlated with more restrictive campaign finance laws (see, for example, Basehart and Comer (1991) and Heterington, Larson, and Globetti (2003)

Better minds than mine can weigh in, but I think the correlation that would be an issue could be either a correlation of low state limits and "restrained" gerrymandering (hypothesize the good-government state of your choice), or one between wild-west gerrymandering and states that don't impose anything under a $2000 contribution limit. I would just observe that Stratmann is pretty upfront about this issue. He doesn't maintain that his controls eliminate this issue.

Remember the significant finding in the study is between the $2000 plus contribution group, and the $500 and under group. That's it.

Old Ballots

2009-05-20T11:50:00.000-04:00

By the way, I have a Scribd page with scanned copies of old ballots I've collected. See the pasters! Revel in the ambiguous and counterintuitive ballot instructions! It's all there.

Called Out by da Brennan Skolarz!

2009-05-20T10:31:00.000-04:00

Yo! Doz skolarz at da Brennan Centa miskonstruz my incumbunt c argument. Meh! Wot wit u?

OK, enough of that LOL stuff.

Apparently, at the Brennan thing I was heard to have said something like this:

[P]anelist Professor Allison Hayward, a skeptic of campaign finance reform, asked whether reformers should really focus more on incumbency than they do on limits on money in politics.

What I meant to say - and what I think I said, was that people with concerns about the quality of governance, who had been railing against earmarks, corporate influence, voter disengagement, etc. etc., might reflect on whether those reflected a problem with money or a problem with incumbency. I thought I was making the rather mundane point that it isn't political spending by itself, but that fact that too often that spending is tied to or derivative of, some goody that the spender seeks or gets from incumbents. To illustrate: nobody is concerned about the corrupting influence donors have on the poor Republican who gets to challenge Nancy Pelosi every two years. It seems stupid to subject both those candidate to identical restrictions, doesn't it?

Furthermore, I believe the Brennan Center study in campaign contribution limits, (summary report here, full paper here) while fine as far as it goes, does not really stand for the proposition that low limits "reduce the power of incumbents." It does demonstrate that lower limits, that is $500 or less, may marginally reduce the reelection rates of incumbents, as compared with states that have "high" limits of $2,000 or more. I am not sure the study's design captures some incumbent protection variables that could correllate with these sets of states - do "reform" minded states with low limits also have effective redistricting reforms that "fix" gerrymandering? I am hesitant to criticize the study, since I am not an empiricist, but it strikes me that there may be an issue here.

Moreover, to the extent this study is suppose to be responsive to the Randall decision, might it not have been useful to design a study that would test the effects of limits as low as those found in that Vermont law? Oh wait - Vermont's were really, really low. The Court wasn't just concerned about limits and competitiveness, but the fact that Vermont had limits that were much lower than other states, applied them to affiliates in a singular way, had other peculiarities, and couldn't really explain why their state required such burdensome restrictions.

And why is "the power of incumbents" the power simply to win reelection? So long as they have the ability to attach earmarks to favor certain supplicants, craft trade rules to help or hinder others, then we aren't getting to the nut of the issue.

If you want to address the "problem of incumbency" in an appropriate way - here's a modest proposal to think about. Why not require both winners and losers to zero out their campaign accounts after each election? Why is it appropriate for Congressman A to sit on a growing coffer seeded with contributions raised 15 years ago, while challenger B must declare his candidacy in a specific cycle and form a federal committee for that race before raising hard money? Hmm?

. . . so . . .

2009-04-29T15:26:00.000-04:00

Does this mean that Skeptics Eye is up and running? Maybe . . .

NAMUDNO!

2009-04-29T15:21:00.000-04:00

Yes, we had fun, didn't we!

Here, for you all, are the details unavailable from a mere audio transcript, from this morning's argument, and some pertinent questions:

1. Nina Totenberg made a big point of leaving the press section to enter the Bar section and give a distinguished looking gentleman a big kiss. We would all like to know who he was.

2. Abby Thernstrom was seated one person away from John Lewis. I also spotted Patrick Leahy and Ben Cardin. Any other members?

3. Several notables moved colleagues into bar membership. Has such a motion ever been denied?

4. An adorable older man seemed to be picking up a radio station on his hearing aid. I think he was escorted out, but I'm not sure.

5. Why aren't Democrats thrilled to have another opportunity, potentially, to rewrite voting law? Just asking.

6. Ginsberg seemed unwell. Kennedy was mumbling quite a bit, as well.

7. The argument that the Court today stands in the position of the Court in the Civil Rights cases, and that ruling against Section 5 could permit reinstitution of racist practices similar to that time, did not go over well. People, supporters as well as skeptics, cringed.

My prediction: 5 justices concluding that the MUD needs to be able to bailout. 4 reaching further, and finding the renewal of section 5 unconstitutional, as Congress had not sufficiently calibrated it to present conditions. Breyer will write a dissent, where he applies Active Liberty to this context, but yet again fails to drop a footnote to his book. Souter will write for himself and Justice Ginsberg, praising the VRA and especially Section 5 for its ameliorative effects. Souter will pick up on the reference made in argument to Reconstruction and the Civil Rights cases.

UPDATE: We did not observe Nina Totenberg in an indiscretion. The gentleman she greeted so warmly was Frank Lorson, who I understand was a longtime deputy clerk of the Court. There's a photo of Mr. Lorson here, but he seems not to have a Wikipedia page. Someone correct this oversight!

It's Come To This

2008-05-23T17:32:00.000-04:00

SkepticsEye - hosted by Blogger! Ah. Hopefully this interface will be a little more idiotproof! And hack resistant.

Living In The Past

2008-05-23T17:30:00.000-04:00

I will begin to populate this new site with posts from the late, great Skepticseye.com. So if things look familar, well, that brain cell apparently still flourishes. If I can manage it, they will even have their old dates!

DNC Files Suit Against McCain

2008-04-15T12:11:00.000-04:00

But that was no 120 days just now. And if they get the court to order the FEC to take action, doesn't that restart the 120-day clock?

You see, under the statute, if a party files an FEC complaint, and the FEC doesn't take action, in 120 days the party can prosecute the complaint directly in federal court. These suits, called "a8" suits, don't work if the FEC has taken action at all - even to just start the wheels of an investigation moving.

So I'm not sure why the DNC is rushing the procedure like this. Wouldn't it be better to wait the 120 days out, and file on the merits during . . . gee I don't know . . . the Republican Convention?

People's Park

2008-04-14T17:45:00.000-04:00

People's Park in Berkeley - has rules. Posted. Several places. I have photos.
Meanwhile I was able to enjoy this as a guest of the Institute of Governmental Studies at Berkeley. They dialed up nice weather, great panelists, and a memorable occasion.

Bye, Herb.

2008-04-05T17:47:00.000-04:00

Brilliant, grumpy campaign finance czar Herb Alexander has departed this life. The Post and the NYT both featured very thoughtful obits. John Samples offers thoughts here. USC's In Memoriam is here, with a great photo. CCP's thoughts are here.
I first met Herb as one of the counsel for the Thompson Investigation - the staff called me one day to say there was "this guy" in the office that wanted to talk to someone about offering testimony when the time came. I figured it was, you know, just a "guy" and then Herb Alexander walked into my teeny little office. We had a blast talking about how much fun it was to do state-level campaign finance research on the Internet. And grumping about some of the more outlandish reforms being bounced around the Hill at that time.

The last time I had the pleasure of talking with him was at a Cato campaign finance conference in, I believe, 2006. He was frail and accompanied by a nurse, but generally in feisty spirits with lots to say about everybody there. (Heh).

Here's a link to Alexander's Frontline Interview from pre-BCRA, just for fun. I hope someone sat down with him to take an oral history.

My Bundling Paper is Up

2008-04-03T18:05:00.000-04:00

My paper for The Forum, on why we might not want to require bundling disclosure, is up and available here.

CFIF Opposes Disclosure for Issue Ads in West VA

2008-03-28T18:06:00.000-04:00

And has had a pretty good track record on this issue - see the links at their site, here.

I Meant What I Said . . .

2008-03-26T18:07:00.000-04:00

and I said what I meant. An elephant's faithful, one-hundred percent.

However, you wouldn't know all I meant, or said, by reading the Politico. The Politico called to see whether I would comment on an anti-voter caging proposal now before Congress. I obliged, and made the following points:

- if a state permits challenges to voters, than it makes little sense to deny challengers the ability to do research on whom to challenge (that is, caging mail returns to review who may have moved from the precinct);

- opponents of caging are really opposed to partisan challengers in polling places at all, and one wonders why that isn't the focus of reform;

- perhaps that reticence has something to do with a subconscious realization that partisan challengers, some places, perform a valuable function, and we might not want a federal law banning them. They are, in one-party jurisdictions, perhaps the only monitors around not allied with incumbents and the majority party. This is where the machine comment came in - that historically challengers protect abuse of voters by "historically Democratic" machines. I think I then allowed that the Platt machine wasn't Democratic.

My point was that, with all we hear about abuses involving partisan challengers in polling places, we shouldn't lose sight of their intended purpose - and the purpose they may continue to serve. Sometimes you don't know what you've got 'til its gone.

- finally, the reporter related some accounts of partisan poll workers abusing voters, confronting them, and whatnot. I observed that many jurisdictions do not permit challengers to address voters directly, so this would violate state rules (maybe federal law, too, depending). If the rules aren't being followed, how is adding a "caging" law to the mix going to help, I queried.

The reporter who wrote the story had a word limit, and was entitled to use the quote he did. But that squib shouldn't be taken as a complete summary of my views. I think some good friends know that . . .

Un(Pre)Clear

2008-03-25T18:09:00.000-04:00

The Court had fun thinking about the scope of "preclearance" yesterday. As a refresher, under the Voting Rights Act, jurisdictions that used certain restrictive practices, and had a minority of the voting age population registered to vote, were required to have any of their changes in voting practices "precleared" by the Department of Justice, (or sanctioned by a judge). The scope of this requirement has been interpreted broadly, to cover not just laws regulating voter qualifications, but redistricting and other more attenuated regulations of elections.

This case involved whether the Governor could appoint a replacement on a county commission, or whether a special election must be held. The special election had been precleared -- a return to the appointment process had not, even though state law provided for appointments.

Governor Riley sees politics at work:

"The plaintiffs' problem with my appointment of Commissioner Chastang has nothing to do with race. They simply wanted a different African American on the Mobile County Commission," said Governor Riley. "The plaintiffs want to take a federal civil rights statute aimed at preventing racial discrimination in voting practices and use it instead to further a partisan political agenda. I hope the Supreme Court will stop this effort to pervert the aims of the Voting Rights Act."

Imagine using voting rights law for political ends. Is nothing sacred?

Caging the Politico

2008-03-25T18:08:00.000-04:00

I'm quoted in this story about voter caging and young voters. That hasn't really been the focus of the debate, but apparently this writer's focus is usually on "youth" issues, which accounts for the direction of the article.

Cthulhu For President

2008-03-22T18:10:00.000-04:00

The campaign logo alone is worth it.