527 Fever, Part II: How Campaign Finance Enforcement is Systematically Biased Against Conservatives

By Brad Smith Posted in Comments (31) / Email this page » / Leave a comment »

Experiencing [campaign finance laws]from the inside as a candidate, I can assure you they are not helpful to the democratic process.

- Ronald Reagan, A Life in Letters, p. 274.

Suppose that you had been up on Capitol Hill just 4 years ago.  You might have heard House Republican leaders denounce the McCain-Feingold bill as "unconstitutional," a "life-or-death issue for the GOP, and "Armegeddon."  

Now imagine, Rip Van Winkle like, you had fallen asleep for four years, and awoke today.  You would hear Republican leaders on the Hill demanding regulation of 527s.  What is the deal?

This change in outlook, to be fair, originates not from the Hill leadership, but from the White House and the RNC.  But either way, it's clear that the new Republican approach to campaign finance reform is not Ronald Reagan's, but Walter Mondale's - let's try to regulate ourselves to victory.  Leaving aside principles of limited government and free speech, this strategy, simply viewed as a partisan matter, is not going to succeed.  

Yesterday, in my first Red State post, and the first in this little series, I addressed how and why the political participation of independent, grassroots "527" organizations is beneficial to conservatives.  

Today, we'll look at how campaign finance enforcement is institutionally baised against conservatives.Before Republicans start adding to the already complex web of campaign finance regulation, they ought to consider how campaign finance enforcement works.  I don't mean the formal investigative process at the FEC, but rather the larger environment of the Washington ethics and scandal industry.

Washington's "ethics" industry is heavily biased toward the political left.  Over three decades, the left has established a well-funded network of groups to fuel and exploit scandals.  These groups include Common Cause, Democracy 21, the Center for Responsive Politics, the Center for Responsibility and Ethics in Washington (CREW), and the Campaign Legal Center.  Most of these groups make at least some effort to remain non-partisan in their approach, and in some cases that effort is sincere.  But there is little doubt that these groups don't have their heart in pursuing Democrats or liberal groups.  

The only one of these groups with any meaningful Republican presence in its leadership is the Campaign Legal Center, headed by Senator McCain's campaign lawyer and former FEC Commissioner, Trevor Potter.  But Potter, though nominally a Republican, is hardly a conservative.  A Fellow at the Brookings Institute, over the last two years, FEC reports show Potter's only campaign contributions as $500 to GOP Representative Jim Kolbe, but $750 total to Democrats Nicholas Lampson and Russ Feingold.  He also contributed $250 to the Human Rights Campaign PAC, a group which spent over $200,000 opposing George W. Bush in the 2004 election, and overwhelmingly supported Democrats for congress as well.  For staff, the CLC has drawn heavily on former Democratic hill staffers and liberal activists.

The most partisan is CREW, headed by veteran Democratic Party operative Melanie Sloan. The others are somewhere in the middle.

What do these groups do?  Among other things, they file complaints at the FEC.  There are, of course, conservative groups that monitor the FEC and file complaints as well, and they tend to file their complaints against liberal organizations.  But they are not nearly as well funded, and generally campaign finance and ethics is but a small part of their mission  - unlike the liberal reform groups, which are devoted to little or nothing beyond campaign finance and "ethics."

 More importantly, these liberal "ethics" groups hold enormous sway with the press, which, as we noted yesterday, for the most part shares their liberal predisposition.  Even CREW, which is more or less openly partisan, is frequently identified in the press as a "non-partisan" or "watchdog" group.  For the other groups, the "non-partisan, watchdog" tag is pretty much automatic. Conservative organizations rarely, however, get such a reader-friendly label.

Indeed, most members of the press are already more skeptical of Republicans on ethics than they are of Democrats - because they associate Republicans with money and "corrupt" capitalism.  All this means that in the press, Republican scandals will tend to get more play than Democratic scandals.  

By adding to the complexity of the law in an effort to "get" what some Republicans perceive as generally left-leaning 527s, Republicans are in reality simply handing more weapons to this axis of liberal "watchdog" groups and mainstream media reporters.  For more than twenty five years, the GOP - and more particularly the conservative wing of the GOP - has been the driving force for new and creative ideas in government.  As the Democrats have run out of ideas, they have focused ever more on "ethics" as a way to get or retain power.  Remember "the sleaze factor?"  Republicans aren't going to win by handing them more weapons, laws which will be used to bludgeon Republicans who can't be beaten on the battlefield of ideas.

It doesn't take a long memory to recall that somehow the 1996 Democratic fundraising scandals became GOP scandals in the press.  The Christian Coalition's decline was marked by an FEC investigation that sapped the group's finances and energy for years, despite its eventual exoneration.  An FEC investigation also destroyed the Coalition, a major pro-GOP business effort in the late 1990s, that will quite likely be used at some point against new Leader John Boehner.  

In 2004 I was proud to lead a bi-partisan coalition at the FEC to head off what I thought was an improper effort to regulate independent 527 organizations, such as Americans Coming Together and Swift Boat Veterans for Truth.  But despite our ruling, and despite the lack of Congressional action, the FEC has nevertheless begun to pursue new, expansive theories defining independent 527s as political committees subject to the full array of campaign finance regulation.  It should come as no surprise that the FEC's first target in this new campaign, its "test case," is a conservative group, the Club for Growth.

One problem with campaign finance laws is that they are a weapon for campaigns and parties.  Leaving aside whether we really want to give litigation such a prominent role in elections, conservatives need to understand that this is a battle we are unlikely to win.  If Republicans really want to make sure "everyone plays by the same rules," they ought to be looking to deregulate those now regulated, not regulate those who have so far escaped the government's maw.

I wrote this by kyle8

on another forum, but will repeat it.

CAMPAIGN FINANCE REFORM DOES NOT WORK! We are currently working on the fourth version of it. The last three were all created to "Fix" the problems with the previous reforms.

We need to get rid of it all, not add more.

Unambiguously unconstitutional. More so that most things that have been declared unconstitutional in the past. And trying to play the game of restricting free speech in order to benefit politically is at once cynical and supremely foolish. It's trying to win political victories by controlling their opponent's freedom of expression, rather than winning by making the best case of their own canidacy (cynical), and in such complex and unpredictable legal manueverings, politicians are likely to get hung by the rope they had been meaning to use for the other guy (many Democrats, so pro-McCain Feingold, found their own campaigns hurt by it, for example).

Campaign Finance Reform, because it involves laws written by politicians currently in office, almost always protects incumbents. Which promotes cronyism, and reduces incumbent accountability to the electorate, and ends up getting us lots of entrenched, lifetime politicians suffering from Inside-the-Beltway poisoning.

And from the Republican point of view, the last thing we should want is to limit Democrats' and liberals' exposure to the world. They do a better job of campaigning against themselves than Republicans do!  

I was extremely disappointed when I found out, during the last campaign, that folks on the supposed right were going after Democrats for violations of Campaign Finance law. If they don't want me to show up and pull the lever for Republicans, that's a real good start.

Unfortunately by krempasky

Campaign Finance is a weapon. It's not a wholesome weapon by any stretch. But...if the other side is breaking the law and gaining unfair advantage while you sit by and get your clock cleaned, it's easy to see the reflexive urge to file complaints.

Yes but by winterpop

A better weapon are conservative Ideas. Having no new ideas (except tax and spend) is working better than fixing Campaign Finance.

I would rather spend my time reducing taxes, and government oversight than this.

 

The tax and spend notion has been lost in the mist of spend and borrow/big government conservatism, an oxymoron if I ever heard one. Still, what we have is not traditional conservatism. What is selling, and this may account for the reason polls now indicate that a majority believe that Democrats rather than Republicans could do a better job fiscally. Our huge National Debt is now the elephant in the room that no one wants to talk about.

elephant in the room by winterpop

Maby

But in reality it just means the government has less money to give away, as money has to go and pay the "elephant in the room".

It sure is one way to stop the growth of government. Not ideal, but nobody is putting forward other options.

elephants by ScottRM

As a responsible citizen who monitors his finances quite closely,  it seems to be an extremely bad idea to go deeper in debt in order to get spending under control.  Is anybody home?  

Campaign finance vs Bribery by independentone

What's the difference?

If you give a local politician money in a brown paper bag and he votes the way you want, its bribery.

But when corporations and ultra-wealthy donors give hundreds of millions of dollars to politicians, its free speech.

Essentially, politics in this country are nothing more than institutionalized, legal, bribery.

I don't know the solution.  By telling people they cannot spend money on causes they support, that would be an infringement on the most basic freedoms that this country represents.  On the other hand, by allowing money to rule all, it squelches the voice of the little guy.  For example, if I walk into my congressperson's office and give his election campaign $100 and tell him I'd really like him to vote a certain way on an issue, do you think my 'voice' is equal with Mr. Moneybags who gives the congressperson's election campaign $100,000?   You'd be ridiculous to say that the politician will consider both of our views equally.

The ONE thing I absolutely think should be done, is corporations shouldn't be protected under free speech for the issue of political speech anyway, and shouldn't be allowed to donate to any campaign, ever.   Yes, yes, I know corporations are assemblages of people.  But those people who make up those corporations can STILL donate privately.  There's NO infringement on their ability to donate and speak out.

The only saving grace under the current system is so many corporations simply donate approximately equally to both parties.  In other words, they don't care who wins, they just want the winner to 'owe' them.  

I am. by kowalski

My personal motto is:  "Debt Free In The 21st Century."  We should put it on campaign posters.

Of course, that will require actually reducing the size of government, as opposed to slowing its rate of increase.  

This article does a good job of comparing Bush's deficits to Reagan's.  Short version: Reagan averaged a deficit that was 4.2% of GDP over his 8 years as president, peaking at 6.0% in 1983.  Bush's highest deficit was 3.6% of GDP in 2004, dropping to 2.6% in 2005.  Government outlays as a percentage of GDP are also lower than it was under Reagan.

In short: don't believe the MSM hype about 'record deficits', those records are because of inflation.

Thank you. by kowalski

Mr. Smith, I think it's really wonderful to have someone of your experience and background contributing to RedState, because it will help us understand the internals of the "black box" that is Washington politics much more clearly.  

What do these groups do?  Among other things, they file complaints at the FEC.

One of the other things is running the personally infamous "Ostrich" ad in the Washington Post's online edition.

"Non-Partisan" has evidently become a kind of code word for "Democrat-supporting."  How on Earth did that happen if the liberal interest groups aren't extraordinarily well-funded?  The mind reels.

If you do that by Finrod

In no way should we prohibit corporations from giving money to candidates unless we also prohibit labor unions from the same.

Reform by davidba

The best way to curb the amount of compaign corruption is to have a law that says that a candidate can only recieve money, up to a limit, from an individual that lives in the candidates district.  

No money can be given by a Corporation or PAC.  Individuals only.

This would even the field tremendously.  This will never happen because it would cause the current elected officials to get out and raise money in their own district.

Laws are not in brown bags. People constitute Corps. Laws are printed in the US Code down at the public library.

Thats why I didnt care about Hillary or Cheneys behind closed doors commisions. In the end, they have to write a law tnat we can read and decide if we agree with or not. All laws will benefit some and not others.

see below solution

http://www.townhall.com/opinion/columns/thomassowell/2006/01/25/183702.html

I'd totally for that by independentone

To quote the poster below yours (davidba):

"No money can be given by a Corporation or PAC.  Individuals only."

That's what I should have said.  Only individuals can donate, and I think making such donations public record would be the only reasonable method to prevent politicians from being 'bought' behind the scenes.   Of course it would never get passed, politicians LOVE getting money from corporations.

interesting solution by independentone

but I don't think it would work.

By paying congressmembers $10million/year, all we'd get is a bunch of people who not only crave power, they crave money too.  Twice the grounds for corruption.

As it is, they DO make an awful lot of money ($150k-200k), and when you figure in their retirement package they ARE making tons of money.  So we're already close to that point now, and I don't think the problems have gone away.

What about soft money??? by mbecker908

Gonna stop that too?  How about unions having their members "volunteer" for campaign work?  How about corporations bundling their private, individual donations?  How about... never mind, my head hurts.

How about removing all restrictions on donations.  Period.  Corporations, Unions, individuals... all can give as much as they want to whoever they want.  Post the donations in an accessable format on the net.

At the end of the day, politicians of every stripe are going to figure out how to get themselves bought.  Rather that pretend we can stop that, lets just make it public knowledge who owns 'em.

public financing? by dave4p

I'd be curious to here more conservatives' takes on public financing of elections (sometimes called "clean elections") that a lot of these same reform groups are pushing. I mean, there's the obvious gut reaction that I don't want my tax dollars paying for that, especially funding someone I might disagree with. But I think there could be a lot of benefits.

Like you're saying, campaign finance and bribery aren't that different. But public financing is a way to let someone run without taking large private donations, so they don't owe anyone anything (except the voters). I've also read that in Arizona (which has had public financing for years) it lets strong, values-based conservatives actually be competitive with the corporate-funded moderates. But like I said, I'd be curious if anyone knows more about how it works and what their take is.

Wow! Speaking of biased.... by Joe Birkenstock

Anyone old enough to remember back when the entire federal government wasn't a unitary Republican autocracy already knows this (and anyone who really wants to address this topic candidly would seem obligated to address it) but since Brad's list of "biased" organizations and outcomes seems to me to have been selected a bit, um, selectively, here are a few links that I hope might help refresh some recollections about whether the DC scandal industry is tilted in favor of Democrats, or merely tilted against anyone and everyone who happens to be in power at the moment:

http://www.cnn.com/ALLPOLITICS/1997/gen/resources/infocus/whitewater/introd
uction.html


(A really good link to the biased coverage of the original Whitewater "scandal" would have to point to the egregious reporting by The Washington Post and The New York Times, but both organizations have since taken down the URL's of the literally acres of above-the-fold newsprint they devoted to this non-story.  One aspires to attribute this to an after-the-fact attack of conscience.)

http://archives.cjr.org/year/96/2/travelgate.asp

http://www.senate.gov/~gov_affairs/sireport.htm

(Don't forget, Common Cause played a critical role in sparking off all the John Huang/Asian fundraising investigations that Brad laughably claims "became GOP scandals in the press."  Simply put, I was there, and that ain't what happened.)

And oh yeah, lest we discuss the biased products of the DC scandal machine while forgetting the Granddaddy of them all, how could we dare leave out http://thomas.loc.gov/icreport/?  Ahh, good times.

Now, I can already feel the thunder of keyboards insisting that Brad's point is that there are whole organizations out there gunning for Republicans and shamelessly shilling for Democrats, whereas my list just links to a handful of the various so-called scandals that Democrats had to endure when we were in power.  (I leave the reader to determine the validity of these "scandals" for him or herself.)

Fine, you want organizations?  Here's my list:

http://www.judicialwatch.org/ (Sure, they're kind of moribund now, but they were anything but during the Clinton Administration which pretty much proves why they belong on this list.)

http://www.washtimes.com/

http://www.opinionjournal.com/

And last, but hardly least, the GOP's own Pravda of the Potomac,

http://www.foxnews.com/

Look, I realize Republicans get a lot of mileage out of all this "martyred by the machine" posturing, but the fact is the goo-goo groups go after anyone in power.  The media pieces of the scandal industry use the goo-goo's and their own slanted reporting as a means to sell newspapers and boost ratings.  That's not partisan bias, that's market-conscious journalism, and it just seems pretty adolescent, frankly, for you guys to keep complaining about all the hostile attention that comes your way when you hold majorities at every single level of government.  Running with the big dogs means taking a few lumps once in a while, and if that's more than you bargained for, don't get off the porch.

It's not, it's a sock. by Joe Birkenstock

My real name is Bill Brasky - but no one would believe that either.

P.S.  Go Steelers.

From a Journal note: by Res Ipsa

Using the heavy boot of campaign finance laws to suppress 527 speech could stifle the American tradition of robust political debate and a free flow of political ideas.   Rather than try to censor 527 speech,  the government and the courts should stay out of the way and let candidates or other independent groups fight questionable 527 speech with more speech.  

Prohibiting independent 527s from using soft money is America's next step down the same road many European countries have followed: requiring complete public funding of campaigns.   Although some campaign finance reform advocates use the recent 527 debate to argue in support of publicly-funded elections,  "[t]he European experience has shown that taking the money out of politics can also mean taking the politics out of politics."   Giving political parties almost a complete monopoly on which campaign issues to discuss would tranquilize the robust political debate upon which American elections have historically been built.

see comment 23 below by Res Ipsa

I intended to have comment 23 reply to this message.

5 n/t by rightwingscottie

Oh, C'mon Joe by Brad Smith

My friend Joe Birkenstock, late of the Democratic National Committee and more recently of Trevor Potter's law firm (sorry, Joe, I couldn't resist the cheap shot - full disclosure and all, which Trevor at least would appreciate!), suggests that the bias is anti-majority party more than anti-GOP or - more to what I was arguing - anti-conservative.  I would agree with the first part of that - there is an anti-majoritarian bias.  But it is dwarfed by the anti-conservative bias, and therefore largely anti-Republican bias.

Joe's examples just aren't convincing.  In Part I of this little series I discussed the institutional bias of the press against the GOP/conservative message.  This second post was on the scandal industry itself, the web of largely liberal "think tanks" and organizations that exists to exploit "ethics."  Joe mixes the two - as "organizations," he lists media sources: the Washington Times, Wall Street Journal, and Fox News.  But as I noted in the first post in this series, Fox is dwarfed in viewership by CNN, MSNBC, CBS, ABC, and NBC.  I also noted in that post that the Journal's news pages were not conservative, but even excluding that, the Journal's circulation is less than that of USA Today, and it provides far less news content to local papers than the #3 paper in circulation, the New York Times.  The other two truly national papers, the L.A. Times and Washington Post, are also heavily skewed left.  The Washington Times, the Capital's conservative paper, checks in at #100 on the circulation list, with less than one-seventh the circulation of the Post.  And all this excludes the wire services, which also lean left and provide much content for smaller papers.  Then there's Time, Newsweek, US News, even Business Week.

When it actually comes to organizations, Joe lists just one: Judicial Watch.  But Judicial Watch is not devoted to using the campaign finance system for its activites, as are Democracy 21, the Center for Responsive Politics, the Campaign Legal Center, Public Campaign, and to a large extent CREW and Common Cause.  Then there are the host of other "ethics" groups on the left, like Judicial Watch less involved in campaign finance directly - the Center for Public Integrity, Public Citizen and the like.  As I noted, both sides do use scandal and regulation against the other - so it's easy for Joe to find examples - but the pretty obviously don't balance out the scale.

Joe also says that the 96 Asian fundraising/John Huang scandals did not become GOP scandals in the press.  But who can forget "the real scandal is what's legal?," equating legal actions by the GOP with illegal ones by Democrats. Seems hard to imagine that playing out the way.

Look, there's a reason why liberal foundations such Ford, Open Society, Carnegie, and Pew have pumped millions into the "reform" movement, and why the groups involved are almost entirely headed and staffed by liberals - and it ain't that they want to help conservatives.

Public Financing by mbecker908

is anything but.  In practice, which in the realm of "public financing" of anything, it is not about Clean Elections, it's about incumbent seat retention.

Incumbents have a built in running head start.  Limiting the amount of money their opponents can spend simply provides a hurdle that most will never get over because they can't overcome the name recognition factor.

The details - where the Devil lives - are the trick.  

  • How do you determine who gets "Public Money"?  
  • Do you limit PM to the major candidates of the R & D parties?  
  • Would you include Libertarians?  
  • How about Black Panther Party candidates or American Nazi Party candidates?  
  • Who doles out the cash?  
  • Who determines how much a Senate campaign is worth?  
  • Do you give more money to New York candidates than to those in Kansas?
  • Etc.



This is nothing more than another overarching regulatory scheme cooked up by corrupt regulators.  And in the interest of full disclosure on my part, the use of "corrupt" and "regulators" in the same sentence is redundant.  And, oh by the way, if you think politicians won't figure out a way to extract cash from the folks who want legislation passed you're living in Oz.  That "regulator" IS the "Man Behind the Curtain" - don't pay any attention to that man... smoke appears magically...

The free market is not perfect.  It's just better at regulating obnoxious behavior than any regulated market.  The thing that changes the behavior of a perp is not the relative severity of the punishment, it's the relative certainty of getting caught.  Post all campaign contributions in a searchable format.  Let me look at Ted Kennedy's contributors and comment.  Let Alec Baldwin look at the people who contribute to Jon Kyl.  It's called an open, information society.  

The only caveat to regulation I would be willing to accede to would be life without parole for not posting donations within a set time period.  

Amen 5... by mbecker908

Hi Brad! I'm sorry by Joe Birkenstock

you found my examples unconvincing, and I totally agree that the Washington Post and the NY Times have a very broad and deep readership.  Especially in light of that huge audience, however, I was really hoping you would explain why both those organizations kept front-paging such long, thoroughly tendentious Whitewater stories for that audience if they were really trying to carry water for the Democrats.  Could you address that point in particular?

Also, given your assertion that those two organizations and the LA Times are so "heavily skewed left," I'm sure some counterexamples won't be hard to find - so could you (or anyone) post some links to a string of similarly hostile stories about Harken Energy or Spectrum 7 in any of those national papers since 2000?  (I did some quick Googling and couldn't find even one.)

P.S.  No cheap shot taken!  (Although I could see why you wouldn't be, I'm really quite proud of both associations!)  Good to see you blogging here and elsewhere - now write something about the dangers of using "circumvention" of existing regulation as a compelling interest for further regulation so I can start agreeing with you again!

reasoning here I really agree with, but haven't addressed yet.  Assuming I read this right, Brad's arguing that the bias he identifies is not so much anti-Republican as it is anti-conservative.  Believe it or not I agree, at least to a point: strongly ideological candidates sure do have a tough time with the press.  Pat Buchanan always got pretty lousy coverage, but I'd say so did Ralph Nader.  

Brad acknowledges that there are lots of biases at work in the press (and he's right) but he also argues that the biases within the campaign finance enforcement/DC scandal industry are solely (or at least primarily) slanted against conservatives and, by extension, in favor of Democrats.  With all due respect to Brad (which is a lot), I think that's just demonstrably wrong.  Filing FEC complaints, ginning up hostile press coverage - we get hit with all of that stuff too, but when we get it it comes seasoned (dare I say "peppered"?) with heaping doses of accusations of hypocrisy.  

Common Cause (to single out just one) really did devote enormous resources to cranking up all those Asian fundraising/White House coffees/"Motel 1600" controversies I worked on at the DNC, they really did lead the charge for an independent counsel to investigate them, and they really have continued to attack Democrats anytime we fail to march in lockstep on all future iterations of campaign finance reform.  I don't see how any of that is consistent with a strategy of supporting Democrats qua Democrats or attacking Republicans qua Republicans.

It's perfectly consistent with a strategy of supporting those legislators and other policy leaders who are sympathetic to ongoing campaign finance reform, and undermining those who aren't, but as lots of Democrats can tell you (and as John McCain, Chris Shays, and evidently George W. Bush would agree) that is not an issue that breaks down entirely on partisan lines.

So, if the argument is that campaign finance reform groups tend to be particularly hostile to Republicans because they're Republicans, I'd say that's demonstrably not so.  If the argument is that these groups tend to focus on candidates and officeholders who are opposed to campaign finance reform, I suppose I'd agree, but isn't that kind of self-evident?  And, frankly, pretty clearly justifiable?  What else would one expect them to do?  Finally, if the argument is that they go after conservative groups and candidates, not because they're opposed to campaign finance reform but instead because of their positions on abortion rights, or gay marriage, or the estate tax, I'd have to be shown how that explains how all the effort they've put into systematically attacking anti-CFR Democrats starting at least since 1996.  

Anyway, thanks for the dialogue, Brad - I look forward to your next post in this series!

I don't know how the European system works, but the Arizona system doesn't require public financing. The whole thing is voluntary, and it goes to candidates--not parties. So it doesn't limit what challengers can spend, because they don't have to participate in the system at all. They can run on private money if they want (and many do).

To answer some of the "devils" in the details that I do know:

-There's a qualifying process for public money. Candidates have to collect several hundred (or maybe thousand, I'm not sure) $5 donations from voters to prove that they have some actual support. And it doesn't matter what party they are.

-I don't know how they determine the cost of a campaign, maybe average cost of past campaigns?

This doesn't seem like a regulated market to me. It's more like giving a scholarship to the candidates who graduated top of their high school class but don't have the money to go to college.

 
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