In the News
Washington Post (Volokh): The power to regulate elections, not campaigns
By Bradley A. Smith
One who argues that the Constitution calls for a separation of campaign and state — a principle rejecting legislative regulation of political campaigns — runs immediately into an apparent obstacle. The Constitution, Art. I, Sec. 4, specifically gives Congress the power to regulate the “Times, Places and Manner of holding Elections.” Correspondingly, states have broad authority to regulate elections, and the idea of separation of campaign and state is nonsense.
This is not a trivial point, for while it is true that the power to regulate campaigns could be attributed to some other part of the Constitution — the commerce clause, for example, might be deemed to cover anything remotely connected with limits on campaign contributions and spending, and Buckley v. Valeo found the power to pay for political campaigns in the “general welfare” language of the Constitution — those other powers would not override the First Amendment speech and association clauses any more than they do its free exercise and establishment clauses, and thus pose no barrier to a structural interpretation calling for a straightforward separation of campaign and state, as does a clause specifically authorizing such regulation. Moreover, the court has in fact found the power to regulate campaigns in the “Times, Places and Manner” clause.
This power to regulate elections, however, is by no means fatal to the principle of separation of campaign and state-indeed, when juxtaposed with similar but more limited language in Article II, it ultimately undermines the notion that Congress may regulate campaigns. The problem is not the Constitution, but instead the rather obvious error the courts have made in collapsing the distinction between “campaigns” and “elections.”
News Journal: Judge bars enforcement of election disclosure law
By Sean O’Sullivan
Robinson then concluded the primary purpose of the act – regulating anonymous political advocacy – and the collection of personal information required by the act are “too tenuous to pass constitutional muster.”
As a result, Robinson said Delaware Strong Families is likely to prevail at trial and barred the state from enforcing the act until the lawsuit is resolved.
The Delaware Attorney General’s office did not respond to requests seeking comment late Tuesday.
Washington Post (Volokh): The incoherence of limits
By Bradley A. Smith
Some years ago, while I was serving as Commissioner at the Federal Election Commission, I entertained a delegation from China. Working through an interpreter, I was asked to give a brief description of campaign finance law in the United States. I tried to provide a simplified explanation, but as they asked questions, the complex nature of the law emerged. Soon I was attempting to explain the legal differences between “expenditure,” “independent expenditure, “express advocacy of election or defeat,” “electioneering communications,” “generic campaign activity,” “federal election activity,” “public communications,” and more. Finally, the interpreter had to stop me. “I don’t have any more words to make these distinctions,” she said.
Campaign finance law has indeed become a bewildering array of arcane, seemingly arbitrary distinctions and lines. In Citizens United v. Federal Election Commission, I was one of a group of former FEC commissioners who attempted, in an amicus brief, to impress on the court the exceedingly complex nature of the law. Among other things, we noted that campaign finance regulations imposed unique rules on 71 different types of speakers, for 33 different types of campaign-related speech.
Much of this complexity has come about from the interplay of courts and regulators (by whom I mean not only those in government who do the regulating, but the substantial complex of lobbying organizations and foundations that promote further regulation of campaign speech). Regulators pass laws that are so broad as to offend most any normal interpretation of the First Amendment. The Courts attempt to confine those laws to a limited space, leaving ample alternative avenues for free speech. The regulators then pass laws attempting to block off those alternative avenues, and another go around begins.
IRS
Wall Street Journal: IRS at the Crossroads
Editorial
The most troubling new evidence are documents showing that Ms. Lerner actively corresponded with liberal campaign-finance groups Democracy 21 and the Campaign Legal Center, which had asked the IRS to investigate if conservative groups including Crossroads GPS were violating their tax-exempt status. After personally meeting with the two liberal outfits, Ms. Lerner contacted the director of the Exempt Organizations Examinations Unit in Dallas to ask why Crossroads had not been audited.
“You should know that we are working on a denial of the application,” Ms. Lerner wrote in an email. “Please make sure all moves regarding the org are coordinated up here before we do anything.” The Cincinnati agent assigned to the case at the time, Joseph Herr, noted on his timesheet, “[b]ased on conference, begin reviewing case information, tax law and draft/template advocacy denial letter, all to think about how best to compose the denial letter.”
Wall Street Journal: Lois Lerner Pushed for IRS Action Against Crossroads, House Panel Says
By John D. McKinnon
At the same time, the committee says, Ms. Lerner appeared to show no interest in cracking down on liberal groups seeking to operate as 501(c)(4) social-welfare organizations, the letter said. In fact, according to emails the committee reviewed, Ms. Lerner emailed a colleague in response to a news story about the formation of Organizing for Action, an offshoot of President Barack Obama‘s campaign: “Oh – maybe I can get the DC office job!”
Washington Post: Watchdog: IRS workers urged taxpayers to reelect Obama, disparaged GOP
By Josh Hicks
OSC quoted the employee saying: “Republicans already [sic] trying to cap my pension and … they’re trying to take women back 40 years.”
The employee added that her mother had always told her voting Republican would hurt the poor and make the rich more wealthy, saying she found the advice to be true, according to OSC.
In a third case, the watchdog agency issued “cautionary guidance” to an IRS taxpayer-assistance center in Dallas following allegations that workers wore pro-Obama stickers, buttons and clothing at their jobs and displayed similar screensavers on agency computers. OSC said the items were “commonplace around the office.”
Wall Street Journal: GOP Offers More Details on Plan to Refer Lerner Case to DOJ
By John D. McKinnon
An aide who’s familiar with the matter said the GOP referral letter, which will seek a criminal investigation, will lay out evidence in three specific areas where Republicans believe that Ms. Lerner may have violated one or more criminal statutes. They are:
–Violating taxpayers’ constitutional rights. Republicans believe Ms. Lerner improperly influenced the agency to take action only against conservative organizations.
–Misleading investigators. Republicans say Ms. Lerner impeded the Treasury Inspector General for Tax Administration investigation, providing misleading statements.
–Exposing private taxpayer information. GOP lawmakers believe Ms. Lerner was reckless with confidential taxpayer information, according to the aide.
WFB: IRS Gave House Oversight Democrats Info on Targeted Conservative Group: Cummings previously denied IRS contact
By CJ Ciaramella
Cummings publicly requested information from True the Vote in October 2012 on its volunteer activities and training.
Five days later, the IRS sent True the Vote a letter requesting the group provide the agency with copies of its volunteer registration forms and additional information on its volunteer activities.
Cummings’ staff requested more information from the IRS about True the Vote in January 2013. The request was channeled from the IRS’ Legislative Affairs office to several other IRS officials, including Lerner.
Three days later, Lerner wrote to her deputy Holly Paz: “Did we find anything?” Paz wrote that she hadn’t heard back, to which Lerner replied: “thanks—check tomorrow please.”
Independent Groups
Freedom Works: In a Glass House: Democratic Hypocrisy on Money in Politics
By Logan Albright
The point is not just that “both sides do it.” Financial contributions to politics represents a form of constitutionally protected speech, and are important for free and open participation in the democratic process. The “dark money” that Democrats so decry is actually a good thing, as it protects people from potential discrimination based on their political beliefs. This is something we have seen happen with the IRS targeting conservative groups.
The truth is that Schumer and his Democratic allies are desperately grasping for a way to destroy the tea party, and campaign finance laws provide a convenient mechanism for doing so—especially when they can be enacted through regulations that do not have to undergo congressional scrutiny or approval.
“[T]here are many things that can be done administratively by the IRS and other government agencies,” Schumer said. “We must redouble those efforts immediately.”
SCOTUS/Judiciary
Reason: Free Speech vs. the Collective
By Jacob Sullum
Similarly, the editorial board of The New York Times, which decries “the distorting power of money on American elections,” cites the “broad ideological change” sought by “the Koch brothers” as a reason to keep the aggregate caps on campaign contributions. “To equate the ability of billionaires to buy elections with ‘freedom of speech’ is totally absurd,” Rep. Bernie Sanders (I-Vt.) opines, while Sen. John McCain (R-Ariz.) bemoans “the undue influence of special interests” and Rep. Nancy Pelosi (D-Calif.) complains that “the Supreme Court has chosen to pour even more money into our process and our politics.”
As self-financed candidates periodically discover, you cannot really “buy elections.” Even if a candidate is interested only in gaining and retaining power, he has to convince voters he is worthy of their trust. The “undue influence” that worries Breyer, Obama, Sanders, McCain, and Pelosi is ultimately based on the power of speech to persuade, a power Congress is forbidden to regulate.
Forbes: Campaign Finance: For Shaun McCutcheon, It’s About Passion For Freedom, Not Power
By Richard Levick
During this publicly enflamed discussion, my firm represented Shaun McCutcheon on the communications front. On the one hand, that’s the kind of full disclosure we make whenever we have a business relationship with a party cited in this column. On the other hand, it’s not my purpose here to argue McCutcheon’s position. Instead, I want to share an insight into this whole campaign finance debate that, for me, was powerfully underscored as a result of our relationship.
Mr. McCutcheon is not a corporation. He is not an oligarch. He is a successful engineer but his pockets aren’t deep enough to awaken anything like the ghosts of Citizens United v. FEC. His relatively limited power naturally raises the question of motive. In fact, McCutcheon pursued this case at significant expense to himself. It was in many ways a personal ordeal that began three years ago when he agreed to put his name and reputation on the line in support of this incipient litigation. So when McCutcheon says he was driven by principle, by the sacred First Amendment covenant that he believes at risk here, he can and should be believed regardless of whether or not you agree with his specific interpretations of the Constitution.
As such, there’s a lesson here for everyone: The campaign finance debate is not necessarily about money or power. At least entertain the very real possibility that many of the strongest proponents of responsible deregulation are disinterested participants in a fundamental and continuing discussion, and that they are no less committed to their notion of democracy than those who believe that money, by definition, always corrupts.
The Columbian: Campaign finance reform protects those in power
By Thomas Sowell
Even in an age of polarization and gridlock, the one area in which it is easy to get bipartisan support in Congress is in passing campaign finance laws, restricting how much money can be spent publicizing political candidates. What Congressional Democrats and Republicans have in common is that they are all incumbents, and they all want to keep their jobs.
