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New Campaign Finance Horrors
In the Kentucky Senate race between Republican Rand Paul and Democrat Jack Conway, new revelations have appeared about the financing of the campaigns. Apparently something called “outside groups” — it’s not clear whether they are from outside Kentucky or outside the parties — have been spending money.
Listen to what one group is doing: “Groups that want lower taxes and less federal regulation are helping Paul … [and] pushing a message that federal spending and the size of government must be reined in.”
Shocking no? You have not heard the worst.
In Kentucky, “The health care law has been a key difference in the Senate race, with Conway supporting it and Paul, a Bowling Green eye doctor, strongly opposing it. Supporters say the law will bring insurance coverage for millions more Americans, but opponents have argued, among other things, that it will add costs to businesses.” And both supporters and opponents have the gaul to spend lots of money pushing their point of view!
For Paul, new troubles have appeared. A shadowy corporation has funded attack ads directed at the Republican, see here, here, and here. The corporation in question has not disclosed the source of its funding for the ads to the Federal Election Commission. It is possible that the money for the ads came from commercial transactions and thus has no relationship to the relative strength of public opinion in Kentucky. Prior to Citizens United such spending by corporations was illegal, right? It will be a great day for democracy when shadowy corporations like this one can no longer fund attack ads directed at American voters.
Except…
More Surprises from the Kentucky Senate Survey
You may have heard about the new survey in the Kentucky Senate race that shows Rand Paul up by 15 points. The disaggregated data from the survey are almost as surprising as the overall result.
About one-third of likely African-American and Democratic voters support Paul. He attracts solid majorities of young people, of college graduates, and of people who “almost never” attend religious services. Among the one-quarter of voters neutral toward the Tea Party movement, Paul receives 60 percent of the vote. He gets majority support from every region of the state. Paul’s support is the same from voters who make more or less than $50,000 a year. Paul’s weaknesses? People over 65 and women, both coming in around 45 percent.
Pretty amazing stuff, but there’s a caveat (there’s always a caveat).
One time in twenty, a well-done poll will return a misleading result. The 15 percent number may be wrong because of sampling error.
If not, Rand Paul might want to think about whether he really wants to keep his practice open on Mondays considering all that stuff he will be doing in DC. But maybe he’s not looking to make a career in the capital.
They Should Earn Our Trust
Ronald Brownstein points to the many measures showing Americans have lost confidence in their government and in some private institutions. He concludes that these signs of distrust “point toward a widely shared conviction that the country’s public and private leadership is protecting its own interest at the expense of average (and even comfortable) Americans.”
Maybe. But there is another interpretation. Consider the recent performance of the government and of more than a few businesses. Most Americans do not pay attention to the details of governing. They have other things to occupy their time. They do, however, notice important matters like war and the economy. Since about 2004, Americans have steadily soured on the wars in Iraq and Afghanistan. The economy remains weak despite promises to the contrary from the current administration. Banks and auto companies flouted the presumed rules of the capitalist game by seeking and taking bailouts when bankruptcy loomed.
The last nine years have given the public little reason to have confidence in the performance of the federal government and of some business leaders. The lack of public confidence Brownstein notes might better be seen as a rational response to what is becoming a decade of incompetence in DC combined with bad faith elsewhere.
New Attack Ad Provides an Early Look at the Fall Campaign
The Jack Conway for Senator campaign has run an attack ad on The New Republic website disguised as an article about Rand Paul by one of the magazine’s interns. The tipoff is the word “radical” which appears five times in a short article along with “eccentric,” “unconventional” and similar words. (Doesn’t TNR bother to edit the web-only stuff?) Yeah, yeah, you’re saying by the end of the article, I get it: Paul is a radical, weirdo libertarian.
The evidence so far suggests that the Conway for Senate campaign seeks to paint Paul as an extremist while Jack, of course, is a moderate who will provide plenty of pork and don’t worry about the debt. Like most Democrats, Conway is facing a tough electorate this year, and he is responding by the party’s political playbook: demonize, mobilize, and spend. He will have adequate funds to pursue that strategy along with more than a little help from affiliated outside groups like TNR.
Parts of the article provide a useful political analysis of Kentucky’s different regions, presumably provided by the Conway campaign. So the article does offer a look into how Conway thinks he can win this.
Our intern concludes that the Conway-Paul race “is suddenly a close race.” It is true that a survey at the end of June, cited by TNR, indicated an even division. But the article appeared on August 4, and three polls in July showed Paul up by 3 to 9 points, the last one having Paul over fifty percent for the first time. That most recent poll also indicated that Paul had the support of one-quarter of Democrats and two-thirds of independents in the state.
With TNR flailing around like this, the Conway campaign seems pretty desperate pretty early.
A Look Back at DISCLOSE
The DISCLOSE Act, as expected, failed on a cloture vote yesterday. Let’s review why it failed as a matter of politics:
The Democrats have majorities in both chambers of Congress. Many members of those majorities were concerned that Citizens United would lead to political speech that lessened their chances of re-election. The DISCLOSE Act was an effort, within limits imposed by the courts, to discourage that speech and thus increase the chances threatened members of the majority would be re-elected.
A simple disclosure requirement imposed on independent spending would not have done the trick. Many of the groups that congressional Democrats fear would have no problem with a simple disclosure attached to their independent ads. So the House sponsors ramped up the disclosure requirement in the bill by requiring CEOs to appear in the ad endorsing its content and the revelation of donors supporting the ad. They also broadened prohibitions on speech by government contractors and companies headed by non-citizens. Supporters of the legislation argued such prohibitions would cover most of the Fortune 500. The purpose of the legislation seemed to be getting around Citizens United and reinstating the ban on corporate speech.
The effort started to come apart when the National Rifle Association demanded an exemption from the enhanced disclosure mandates. The NRA had enough support from House Democrats to kill the bill so DISCLOSE’s sponsors exempted the NRA from its requirements. Other groups also wanted an exemption. Reformers were appalled even as the the groups granted exemptions grew by the day. The bargaining process that in most legislation became all but public with DISCLOSE. Like most “reform” bills, DISCLOSE presented itself as an ethical exercise to protect the integrity of the government. One does not bargain over righteousness. Senate Democrats threatened to vote against the bill because of the NRA.
After much work and more bargaining, a majority for the bill was found in the House. On the Senate side, the sponsors needed at least one Republican vote. They could not get it. The senators from Maine correctly surmised the bill was a crude partisan undertaking even by the standards of campaign finance. They also reasonably called for Congress to take its time and produce a bill that might not cause serious unexpected consequences. But the whole point of the bill was to move quickly to protect incumbents in the majority in the fall. Democrats settled for blaming Republicans for blocking the bill and hoping voters would remember all this in five months.
A simple disclosure requirement might have passed, but it would not have been very useful politically so it was not an option. More than anything else, the three or four months devoted to DISCLOSE indicated the intensely political nature of campaign finance regulation, a species of legislation said to be devoted to the general interest in government integrity. Once again political realities belie mistaken hopes held by the general public more than the seasoned pols on Capitol Hill.
DISCLOSE Near the End
The cloture vote on the DISCLOSE Act will soon be taken. It appears that its supporters lack the votes to close off debate.
Brad Smith explains some of the problems of DISCLOSE.
Roger Pilon notes other failings.
President Obama tried to rally the troops yesterday by taking a populist tone. I have never thought Obama was a very good demagogue, and his efforts at populism belie his strengths. President Obama and congressional Democrats are hoping a defeated DISCLOSE will be good for their fall campaigns. Historically, campaign finance issues have had little salience with the public. On these issues, more than others, hope does seem to spring eternal.
DISCLOSE Again and Maybe for the Last Time
The DISCLOSE Act, slightly modified, is headed for a cloture vote on Tuesday afternoon. The alterations to the bill have changed few minds outside of Congress. It remains to be seen whether the modification in the bill — the sponsor removed a passage allowing labor unions to transfer funds among its affiliates — will be enough to attract enough support to achieve cloture.
My policy analysis of DISCLOSE applies to the altered bill.
The Center for Competitive Politics provides an analysis of the altered bill here.
The American Civil Liberties Union is sending around a letter of opposition that states “we believe this legislation would fail to improve the integrity of our campaigns in any substantial way while significantly harming the speech and associational rights of Americans.”
The ACLU has four objections to the altered bill:
- The DISCLOSE Act fails to preserve the anonymity of small donors, thereby especially chilling the expression rights of those who support controversial causes.
- The DISCLOSE Act would chill not only express advocacy on political candidates, but also issue advocacy.
- The DISCLOSE Act imposes impractical requirements on those who wish to communicate using broadcast messages.
- The DISCLOSE Act imposes unjust restrictions on contractors, TARP participants and corporations with minimal foreign participation.
More on Justin Amash
I wrote yesterday about a candidate for the House of Representatives who offered an interesting and critical look at his experience as a state legislator in Michigan. This candidate, Justin Amash, both reads the bills he votes on and posts explanations for his votes on his Facebook page. Here are two of his explanations:
Justin Amash just voted no on HBs 6038 and 6226, which impose stiff penalties and prison sentences on individuals who possess or use two synthetic drugs: one that mimics the effects of ecstasy and another that mimics the effects of marijuana. I have never possessed or used illicit drugs, nor should anyone. But this legislation is more about sensationalism than actual public protection. HB 6038 passed 105-1. HB 6226 passed 104-1.
Justin Amash just voted no on HR 294, which “recognize[s] the perfect game pitched by Armando Galarraga of the Detroit Tigers on June 2, 2010, against the Cleveland Indians.” Congrats to Mr. Galarraga for his outstanding performance and achievement, but I’m not the commissioner of Major League Baseball, and this resolution is not an appropriate legislative matter. It passed 101-5.
If he keeps this up, I may stop being cynical about politics which would be a problem because I don’t know any other way to be, having living in DC for 18 years. But I’m willing to give it a try.
You can have a look at his other explanations for his votes here. (Make sure you go down to the older posts on his wall to get his explanations).
I Didn’t Know People Like This Still Existed
Justin Amash, a state legislator from Michigan, describes how laws get made based on his experience. Notice his antidote to such failures: independent judgment and deliberation combined with a sense of responsibility to his constituents.
Amash, by the way, is running for a seat in the U.S. House of Representatives. If he wins, he’ll find the process here to be much the same as in Michigan.
Big Money Speaks
Several groups came together to raise $15 million that they are now spending to promote the Fair Elections Now Act, the current public financing bill before Congress. I think this is a good thing. That is, I think it’s a good thing they can raise and spend several million dollars making their case on a public matter. It is an especially good thing compared to an alternative world in which Congress prohibited these groups from raising and spending millions of dollars for political advocacy.
Still, we might keep in mind a recent report by the United States Government Accountability Office that examined public financing in Maine and Arizona:
While there was some evidence of statistically significant changes in one of the five goals of Maine’s and Arizona’s public financing programs, we could not directly attribute these changes to the programs, nor did we find significant changes in the remaining four goals after program implementation. Specifically, there were statistically significant decreases in one measure of electoral competition—the winner’s margin of victory—in legislative races in both states. However, GAO could not directly attribute these decreases to the programs due to other factors, such as the popularity of candidates, which affect electoral outcomes. We found no change in two other measures of competition, and there were no observed changes in voter choice—the average number of legislative candidates per district race. In Maine, decreases in average candidate spending in House races were statistically significant, but a state official said this was likely due to reductions in the amounts given to participating candidates in 2008, while average spending in Maine Senate races did not change. In Arizona, average spending has increased in the five elections under the program. There is no indication the programs decreased perceived interest group influence, although some candidates and interest group officials GAO interviewed said campaign tactics changed, such as the timing of campaign spending.
In other words, nothing changed except that taxpayers paid for campaigns.
Kagan Contra Kagan?
The Center for Competitive Politics has sponsored an analysis by Allison Hayward of Elena Kagan’s writings on campaign finance regulation. It should be read widely, not least by the Senators trying to discern her fitness for the Court. Here’s a taste of Allison’s analysis:
In Kagan’s 1996 article, Private Speech, Public Purpose: The Role of Governmental Motive in First Amendment Doctrine, she “explicitly recognized that ‘campaign finance laws… easily can serve as incumbent-protection devices’ and when applied to certain speakers ‘the danger of illicit motive becomes even greater.’ It is impossible to square Kagan’s analysis in this article with her recent comments that the Supreme Court should have deferred to Congress in Citizens United. Americans deserve to know which version of Kagan’s views will receive a lifetime platform on the bench of the Supreme Court.”
The Principle behind Campaign Finance Regulation
Democratic House leaders apparently have reached a compromise that may bring the DISCLOSE Act to a vote. The National Rifle Association, a group that enjoys some support from House Democrats, objected to the bill’s disclosure provisions. DISCLOSE’s authors have now agreed to exempt “organizations that have more than 1 million members, have been in existence for more than 10 years, have members in all 50 states, and raise 15 percent or less of their funds from corporations.” The National Rifle Association qualifies for the exemption. But you knew that.
I wonder what principle of campaign finance regulation justifies this exemption? Earlier the authors of DISCLOSE said the American people deserve to know who is trying to influence elections. Now it would seem that voters only need information about relatively small, young, geographically-confined organizations that receive more than 15 percent of their money from corporations.
There is no principle at stake here. The NRA had enough support to stop the DISCLOSE Act. House leaders had to compromise by cutting the NRA a deal, a special exemption from the proposed law. The deal does show, if nothing else, that House Democrats are really worried about new money entering the fall campaign. They are willing to go a long way — even as far as helping the NRA — to make sure other speech funded by businesses and groups is not heard.
Finally, imagine you are a member of a group not exempted from DISCLOSE. You have been treated unequally by Congress. The courts have said Congress can treat you unequally if they show that this exemption for the NRA has a rational relationship to an important government purpose. How does exempting older, bigger, more widespread groups with less than fifteen percent corporate funding help Americans cast an informed vote? Put another way, if the NRA deserves an exemption, doesn’t everyone?
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