End of an era

He Did Need a Stinkin' Badge, After All

And up to two dozen (that's 24 for you math-challenged types) more violators may be in the same boat? (Maryland has 47 Senators and 141 delegates, for your information.) Now, really, was the paperwork involved that important? Was there any doubt that the Chairman of the slate would be a member? Is there any evidence of subterfuge? Unless I am missing some important detail it would seem a letter of admonition to the violators, coupled with some public education efforts so that subsequent candidates won't make the same technical error, would be sufficient.

I agree that campaign contributions should enjoy some kind of tax preference. But - given what scholarly work in the area I've seen - I am not sure that this limited proposal would change the mix of contributions very much. I think people already inclined to give would enjoy the benefit, bu I am not sure people not already so inclined would jump into the pool in any meaningful way. In any case I think I'd draw the line higher than $200, which hardly covers the cost of your place at a fundraising dinner in many cities.

The real value tax preferences hold is more subtle, I think. They signal that giving to candidates and parties is - most of the time - a good and worthy activity. When so much of the popular press and academia seems duty-bound to paint contributors as nothing but selfish and corrupting agents of private profit, something needs to happen to turn the debate toward encouraging more civic-minded donors.

E-Mail as Its Own WMD

Overlawyered had a good post yesterday reminding us all of the hazards of email.

But it's not just the chaturbate message - its the attachments. Don't email Word documents with lots of embarassing metadata. Here's a helpful post on that point. The government's take is here. Advice about proper "document hygiene" (achoo!) is here. Also here - the author (writing in 2004!) optimistically believes that people already understand that emailiing Word documents is a bad idea. Not sure that's true, even today. Wish it were.

527 Donor Intimidation?

This story ran on Wednesday, and I would have blogged about it earlier had it not been for yesterday's technical difficulties. The thrust of the story is that FEC attorneys are questioning donors about what they were told their 527 contributions would go toward. Donors are complaining that they are being intimidated so they won't participate in this cycle.

But there's a deeper problem. Under revised FEC regulations, if the solicitation indicates the money will be going to federal campaigns, then the "hard money" federal rules apply - limits, prohibitions, reporting requirements, and the $1,000 political committee threshold.

But, this regulation is effective AFTER the 2004 cycle, and the solicitation under review occurred during that cycle. Would the FEC be attempting to apply a regulation retroactively? Naah. That would be wrong.

So the FEC is using an "analytical concept" instead of a rule of general applicability (since apparently there wasn't one) - and thus getting around the whole notice-and-comment thing, not to mention the retroactivity problem? O-Kay.

What Happened to the Journal of Law and Politics?

The most recent issue, just received in our library, is "Summer 2006." (The most recent issue featured on the webpage is from 2005, so I shouldn't feel neglected). Looking for jasminlive articles in the issue about the law of politics? Look in vain. There are three (three!) pieces: one on reparations, one on choosing the Chief Justice, and one on happiness as public policy.

I'm all for being happy, make no mistake. But is nothing happening in the world of election administration, governmental ethics, corruption and criminal law, campaign finance, ballot access, voting rights, etc. etc. etc. . . . ? Is no one writing about these areas? Has the journal gone to pieces?

I'd like to know. My one experience with the journal, in 1993, was quite pleasant. I wish it well.

No Fur Flying

Well, it was a fine day to see a Supreme Court oral argument, and we did. We noticed for the first time that among the specifications for Bar member's dress - furs are not permitted. Was this a problem at some point in the past?

The argument in Davenport was engaging and worrisome. I fear that if the Court adopts a "election integrity" rationale for the opt-in dues requirement, that could open an entirely new area of regulations applicable to the private internal arrangements of groups. Unions here argue that they are being singled out - but unions in general are singled out in the law since they have the capacity to collect agency fees from nonmembers in the first instance. The Junior League or Chamber of Commerce can't come by your house and force you to pay dues.

I predict the Washington Supreme Court's decision will be reversed, but hope that the rationale is the protection of nonmember rights rather than some amorphous "integrity" argument. I mean, if Washington were so concerned about union participation in its elections, why is it legal in Washington for unions to make general treasury expenditures at all?

Justice Alito asked the best question, I think, which was along the lines of "If an opt-in requirement isn't that burdensome and these people aren't members anyway, how is it that the First Amendment tolerates anything except an opt-in requirement." Solicitor General Clement tried to distinguish "compulsion" as in not being able to object, with needing to assent in order for the unioin to use your money. He got a little bogged down in what standard a court might look at to determine whether the union's "consent" procedures were sufficient.

The whole point, of course, is that people are busy and unions may not be completely straightforward about providing a process for oppting-out. One could argue that if there's such a record, a state could decide to protect nonmember jasminelive association interests by enacting something like Washington's law.

Saluting MMajor Purpose

The FEC's draft justification of its political committee status is a great read for campaign finance geeks. No, really. As someone who generally supported the "contribution" and 50% allocation rules promulgated in 2004, you'd expect I'd be on board with a more thorough defense of their validity.

I'm not sure but that the FEC explanation invites more problems, however. That is, I suspect that its explanation and application of "major purpose" - which, as alert readers know is found nowhere in the statute or regs, just in a handful of confusing case precedents - will invite more trouble.

As the FEC explains it, to determine whether a group is a political committee, one first looks at whether they received contributions or make expenditures past the $1,000 statutory threshold. Fair enough. Then, the FEC recognizes that only groups with the "major purpose" of engaging in federal campaign activity can be required to register, report and follow the finance restrictions.

What counts as "federal campaign activity?" That's where I think the articulated standards are a bit off, and may be better if promulgated in a regulation, with some notice and comment to hash out the vagaries.

The FEC's declares that public statements are instructive of "purpose." But are these weighed at all - that is, if the public statement says something about the importance of a federal election and a ballot measure, is this a statement supporting a "major purpose" finding? Or is this a "mixed message" "advocating both issue discussion and advocacy of a political result" that the courts say we protect from political committee status? Moreover, some of the statements considered in the discussion of specific enforcement matters are made to donors in "thank you" notes. One wonders how good an indication those would be of true "purpose" - groups tend to tell donors what they think they are interested in hearing.

How about communications with members - otherwise insulated from regulation as "expenditures."? Do they count?

The standard hinted at in MCFL is clearer, but not as broad (so not as much fun). There, the Court suggests (in dicta, no less, but who's counting?) that a group's independent express advocacy could become so extensive as to give it a "major purpose" and political committee stattus. Does this mean we should only count statutory "expenditures" in the mix?

Again, I do not support a rule that treats 527s as presumed political committees. The FEC's explanation on that point is persuasive, I think. But I'm not sure the FEC is presently using sufficiently clear or legally supported standards in its political committee matters. I'm still one of those who believes the world would be a better place if we really knew what "major purpose" meant.

"Caging" and the Moronic Convergence

The Divine Ms. G. has been widely quoted on "caging." For those of you involved for years and years in fundraising, the promotion of this term must come as some surprise.

What is caging? Well, it doesn't involve locking people in cages. Or even locking up their returned mail.

All "caging" refers to is extracting checks out of mailed material, logging them, and depositing them.

The problem is that these folks seem to have used this specific term for the general exercise of duping bad registrations out of the voter rolls based on returned mail. How do you think political fundraisers clear the deadwood from the lists?

Of course, this is not a perfect method - a substantial amount of my mail was returned in 2006 because the post office couldn't figure out I had returned from vacation - but the point is that's not "caging."

Unless you don't know what you're talking about.

Which, I suspect, may be the case with the present "crisis."

Out! Out! Damn Spouse

Congress is on its way to prohibiting campaigns from paying candidate spouses for their work. (Bauer here and Hasen here.)

Let's take a quick look at the plight of the candidate-spouse before we leap to any conclusions. When the spouse is married to a challenger, that individual may attempt to retain a career even as the demands of campaign appearances eat away at the day. This is less of an issue now that campaigns are permitted to pay candidates themselves (at least someone has a job), but still we can assume that the working spouse was contributing to the household in necessary ways before the campaign, and the added expenses of the campaign mean working is every bit as necessary now.

But its harder to pull off your job, campaign events, care for your family, and fend off the inevitable slings and arrows directed toward you and your employer from the opponent. Your employer will get tired of this, eventually.

Wouldn't it be easier for everyone for spouse to work for the campaign? Sure. And if you're paid a salary comparable to what would be paid an outside hire, then why should we care?

For officeholders, in addition to the travel and campaign requirements, their spouses are subjected to a variety of financial disclosure requirements, in the pursuit of a conflict-of-interest free legislative environment. (Heh.) So Spouse of Member will be an unattractive employee for some businesses. Not for lobbying of course.

Lobbying, political management, etc. may be a useful refuge for Member's spouses - but clearly this isn't available to the spouses of challengers. So, where does the impact of this reform likely bite the hardest? Challengers? What a surprise.

A targeted reform aimed at abuse of spousal employment makes some sense, but this overbroad overreaction doesn't.