Tag: campaign finance

Computer-Aided Reporting: Looking Where the Light Is Good

Upshot (New York Times) writer Derek Willis tweeted this morning, “We need to stop doing stories (and maps) with meaningless data.” At the link, a story on Vox charts the poorest members of Congress. It’s based on a Roll Call story published in September.

His main point, I think, is the failure of the data to reliably reflect what it’s supposed to. The disclosures on which these stories rely don’t include the value of homes members own, for example, and information is reported in broad bands, so it’s probably not very accurate and may be wildly inaccurate.

The data is meaningless in another, more important way. Neither story suggests any correlation between wealth (or its absence) and legislators’ behavior or fitness for office. It’s just a look at who has money and who doesn’t—uninformative infotainment. Maybe some readers stack up inferences to draw conclusions about Congress or its members, but this is probably an exercise in confirming one’s biases.

This illustrates a real problem for computer-aided journalism. When the only data available depicts a certain slice of the world, that will skew editorial judgments toward that slice of the world, overweighting its importance in news reporting and commentary.

In my opinion, reporting on public policy suffers just such a skew. There is relatively good data about campaign financing and campaign spending, which makes it easy to report about. The relatively high level of reporting on this area makes it appear more important while the actual behavior of public officials in office—the bills they sponsor, the contents of bills, amendments, votes, and the results for society—goes relatively unreported.

It won’t be the fix for all that ails reporting on public policy, but our Deepbills project makes essential content of legislation available as data. It vastly expands the territory around U.S. federal public policy that computer-aided jounalists can cover. Deepbills data has been picked up various places, but we need more adoption before it will provide all the value it can to a better-informed public.

Update: On Wednesday, the House Government Reform and Oversight Committee will have a hearing on implementation of the DATA Act, which could yet further expand the data available to journalists, and all of us.

Raising Big Money to Fight Big Money?

In the latest of many enthusiastic National Public Radio reports on Professor Lawrence Lessig and his efforts to remove money from politics, Lessig outlines big plans:

In 2016, we want to raise a substantially larger amount of money - could be 200 million, could be 800 million - so that we can win a Congress committed to fundamental reform in the way campaigns are funded.

Well, if spending $800 million in billionaires’ contributions to “win a Congress” won’t knock out big money, what will?

But even if he does raise this kind of money, Lessig might find himself disappointed. You can’t always get what you want, even if you’ve got a lot of money to throw around. From John Connally’s “$13 million delegate” in 1980 to Ross Perot’s $65 million campaign in 1992 to Meg Whitman, Linda McMahon, and Jeff Greene in 2010, the candidates with the most money sometimes fail badly. Or take the billion dollars that Republican groups planned to spend in 2012 to take back the Senate and the White House. 

Given the consistently low priority Americans have placed on “campaign finance reform” for decades and up to the present – the lowest priority in this 2012 Pew poll, save for global warming – even $800 million may not be enough to sway the voters.

John Samples has raised many questions about the advisability of campaign spending restrictions in articles such as this one.

Second Verse, Same as the First

Twitter fight!

Yesterday morning, a line in a New York Times article by Nick Confessore offered me the opportunity for mirthful needling that turned into a full-blown, impossibly brief exchange of views on Twitter.

The article was on Harvard Law Professor Lawrence Lessig’s plan to elect candidates who are committed to his version of campaign finance reform. It quoted Lessig saying, “Inside-the-Beltway people don’t think this issue matters, they don’t think voters vote on the basis of this issue, and they advise their politicians not to talk about it.”

So I tweeted: “I don’t think this issue matters.” Then I tweeted: “Voters don’t vote on the basis of this issue.” (I didn’t bother with the rest because I don’t advise politicians.)

I’m inside the beltway! I’m a people! How could I not?!

Responding to another NYT reporter’s question, I touted my own work as “speech-friendly reform,” linking to our upcoming event on congressional Wikipedia editing. Just think of the prospects if legislative staff—some of the foremost experts about the bills in Congress—contributed information about notable bills to Wikipedia for the public to peruse ahead of congressional debates.

Professor Lessig took the crumb of bait, asking me “how is more speech not speech friendly #Escapethe1990s.” (I still don’t know what the hashtag means.) Assuming he was still working on public/taxpayer funded campaigns—I’m not a follower of Lessig’s in the Twitter sense or any other—I tweeted about the wrong of forcing people to pay to money to support speech with which they disagree.

Lessig’s plan is not detailed on the website of his “Mayday PAC,” which only offers gauzy promises of “fundamental reform.” After some back and forth, I learned that Lessig’s reform plan is not direct public funding, in which taxpayer money goes from the Treasury to campaigns, but indirect. He would rebate $50 in taxes in the form of a “democracy voucher.” The taxpayer could give the voucher to any candidate who pledges only to take such vouchers, it could go to the political party of the taxpayer, or “if an independent, back to this public funding system.”

Democrats and Mansions

Washington Post reporter Bill Turque swallowed the Democrats’ spin hook, line, and sinker. He reports in Friday’s paper:

The Potomac estate of IT entrepreneur and philanthropist Frank Islam seemed more fitting for a Republican soiree than a Democratic fundraiser, some of Maryland’s top elected officials said Wednesday.

But big-time donors, including developers Aris Mardirossian and Fred Ezra, hotel and nursing home magnate Stewart Bainum and auto executive Tammy Darvish, gathered there to raise big bucks for the re-election campaign of Montgomery County Executive Isiah Leggett (D).

“There are not too many people who own homes like this who are great Democrats,” Sen. Benjamin L. Cardin (D-Md.) told the audience of about 400.

I’m not surprised that Senator Cardin would press the line that Republicans are the rich guys with mansions. But why would the Post report it as fact? Consider a few other news articles from the past few days. Here’s the Post’s Zachary Goldfarb reporting from California:

As he toured a series of mansions,…at the home of Walt Disney Studios chief executive Alan Horn… at an event hosted by Marissa Mayer, the chief executive of Yahoo, and Sam Altman, the president of Y Combinator…At the home of Irwin Jacobs, founder of the telecom giant Qualcomm,…Obama put the blame for failing to make progress squarely on the Republicans — “a party that has been captive to an ideology, to a theory of economics, that says those folks, they’re on their own and government doesn’t have an appropriate role to play.”

Later that day, the Associated Press reported,

Obama was to attend a fundraiser hosted by Anne Wojcicki, a biotech entrepreneur who founded the personal-genomics startup 23andMe. The event is advertised as a Tech Roundtable, with 30 guests and tickets set at $32,400 — a nearly $1 million potential haul for the Democratic National Committee.

Even Little Platoons Have First Amendment Rights

Nathan Worley and three friends hold a weekly political discussion group in their hometown of Sarasota, Florida. In 2010, a ballot initiative for a proposed amendment to the Florida constitution prompted the group to pull together $600 and exercise their First Amendment rights. They soon found, however, that doing so wasn’t going to be quite so easy.

Under Florida’s campaign finance law, it’s illegal for two or more people to join together and spend more than $500 supporting or opposing a state ballot issue. Instead, the state forces even small groups like Worley’s to register and speak through a political committee, which is then subject to a vast catalog of vague, inscrutable regulations that are enforced by thousands of dollars in fines. To speak publicly about the ballot issue, Worley’s informal coterie would have to hire a specialized lawyer and accountant and include “disclosures” in their planned radio ads that would take up about 20 percent of the airtime.

Instead of remaining silent like most small groups do when faced with this type of prohibitive regime, the Worley crew joined with the Institute for Justice to challenge Florida’s laws and vindicate their right to free political speech in federal court. Despite the obvious speech-chilling effect of the regulations, however, the lower courts failed to rigorously scrutinize Florida’s laws. The U.S. Court of Appeals for the Eleventh Circuit in particular abdicated its judicial role in two ways.

First, instead of applying “strict scrutiny,” the court chose the more deferential “exacting” scrutiny, based on the notion that so-called “disclosure” requirements like Florida’s don’t prevent people from speaking. Second, the court hardly even applied the “exacting” standard — deciding, on its own, to all but ignore the facts of the case by analyzing it as a challenge to the entire campaign-finance regime rather than simply as-applied to small groups like Worley’s.

In light of the Eleventh Circuit’s refusal to meaningfully scrutinize Florida’s speech-restrictive laws, Worley and IJ have petitioned the Supreme Court to hear their case. Cato and the Center for Competitive Politics have filed a brief supporting that petition because rulings like the lower courts’ here demonstrate a clear need for the Supreme Court to clarify the correct standards to apply when evaluating campaign finance regimes like Florida’s.

Courts shouldn’t be able to get by without judging just because a state calls its speech regulation “disclosure,” or because the courts decide on their own to recharecterize the case as a “facial” challenge. A Supreme Court hearing would put needed pressure on the federal judiciary to actually scrutinize these types of speech regulations and hopefully prevent them from continuing to silence small groups with little funding — because even little platoons of politically interested citizens have First Amendment rights.

The Supreme Court will decide later this fall whether to hear Worley v. Florida Secretary of State.

This blogpost was co-authored by Cato legal associate Julio Colomba.

Federal Contractors Shouldn’t Lose First Amendment Rights

From the Boston Tea Party of 1773 to today’s Tea Party movement, from suffragettes to Occupiers, freedom of political association has always been this country’s hallmark. Importantly, this First Amendment freedom extends to campaign contributions. As the Supreme Court affirmed in the 1976 case Buckley v. Valeo,“the right of association is a basic constitutional freedom that is closely allied to freedom of speech and a right which, like free speech, lies at the foundation of a free society.”

The Buckley ruling has since survived many assaults—including, most notably, Citizens United v. FEC—though Citizens United exposed certain instabilities in Buckley’s frameworkIn any event, challenges continue to arise at the intersection of campaign finance law, political association rights, and the freedom of speech.

An important one comes from three individuals who have business contracts with the federal government. Under the Federal Election Campaign Act’s section 441c(a), “any person who is negotiating for, or performing under, a contract with the federal government is banned from making a contribution to a political party, committee, or candidate for federal officer.” Accordingly, the three plaintiffs are prohibited from making their intended campaign contributions and thus from an important form of political participation. This rule applies even to someone like name plaintiff Professor Wendy E. Wagner, who derives only a fraction of her income from the federal contract.

Together with the Center for Competitive Politics, Cato last week filed an amicus brief with the U.S. Court of Appeals for the D.C. Circuit, arguing that the plaintiffs should be able to exercise their right to political association and speech by contributing to political campaigns. Specifically, we argue that section 441(c) is unique in that it entirely bans contributions by a class of individual citizens. 

In McConnell v. FEC,the only case where the Supreme Court addressed an outright ban on contributions by a class of individuals—the ban on campaign contributions by minors originally in the McCain-Feingold campaign finance “reform,” which McConnell otherwise substantially upheld—the Court struck it down as overly broad and because the government didn’t give sufficient justification. What’s clear from that ruling is that for a ban on political speech and association to be constitutional, the government must show that its targeted class of people is somehow too dangerous to be allowed to participate in the political process, and also that the ban applies only to that set of uniquely dangerous people. Section 441(c) doesn’t meet this test.

If the government wants to ban her from this important form of political participation, then it must give more than bare assertions of the specter of potential corruption.

The D.C. Circuit will hear argument in Wagner v. FEC on September 30.

Campaign Restrictions Lead to Due Process Violations, Even in Local Politics

Most times when I write about campaign finance laws, the context is a presidential race or Supreme Court case.  But these restrictions on political speech – the protection of which is the main purpose of the First Amendment – abound in local politics and state courts even without FEC intervention or presidential finger-wagging.

Here’s a case from California that literally just came across my transom:

Last year, John Mlnarik ran for Santa Clara City Council.  Mlnarik is the sole shareholder of a small business, a law firm with seven employees – a fact revealed in several mandatory campaign disclosures.  Because his money is partly tied up in his business, along with two personal loans to his campaign he also made a third loan (for about $6000) via his business.  He fully disclosed the loan and its source.

More than three months later, after the election, the City of Santa Clara issued a citation against Mlnarik for receiving an excessive loan “from a third-party source.”  Yet the City Code also states:  “For purposes of the contribution limits … [a]n individual and any corporation in which the individual owns a controlling interest, shall be treated as one person … . Nothing … shall prohibit a candidate from making unlimited contributions to his/her own cam­paign.”  And under state law incorporated into the City Code, an individual’s income includes his business’s income; an individual’s real property includes his business’s real property; and an individual’s investments include his business’s investments.

Given this logical overlay, and the fact that his sole ownership and the loan’s source were both fully disclosed, Mlnarik thought he was following the law.  After all, as the Supreme Court reiterated in 2008, “the use of personal funds … reduces the candidate’s dependence on outside contributions and thereby counteracts the coercive pressures and attendant risks of abuse to which … contribution limitations are directed.”  (Davis v. FEC, quoting Buckley v. Valeo).

The City, however, cited the following from its Code:  “[U]nless a term is specifically defined in this chapter, or the contrary is stated (or clearly appears from the context), the definitions set forth in [a portion of the State Government Code] shall govern the interpretation of the provisions of this chapter.”   The State Code, in turn, includes a 192-word definition of “candidate,” which – along with many other possible definitions – states that “ ‘Candidate’ means an individual who is listed on the ballot.”  Thus, while Mlnarik was free to make unlimited loans to his campaign, he supposedly violated the law by making a campaign loan via his wholly owned business, which itself wasn’t a “candidate.”

Mlnarik argued that the City law was unconstitutionally vague – after all, how is one to know whether a term’s contrary meaning “clearly appears from the context”?  (If it does, then the State law’s definition of “candidate” must not be used – and there would be no case against Mlnarik.)  As noted above, the “context” was a law that repeatedly makes an equivalence between a person and his or her business; moreover, the law has eight statutory purposes, three of which (Mlnarik argued) were actually advanced by allowing sole business-owners to contribute to their own campaigns via their business, while none of the eight purposes was thwarted.  If that’s not the contrary “clearly appearing,” what is?

Nevertheless, the City refused to drop the case, and the trial judge denied that the phrase “the term[’s] … contrary … clearly appears from the context” was unconstitutionally vague (in a quasi-criminal case!).  Mlnarik is now attempting to appeal further, but he has been warned that state law may not permit an additional appeal – even though his constitutional argument couldn’t be heard by the administrative hearing officer, and thus has been heard only once, and then only by one judge.

So not only is there an underlying First Amendment violation, but there are due process infringements squared or cubed.  And all this because a candidate for office “loaned himself” $6,000 and fully disclosed all aspects of the transaction.

You can’t make this stuff up!

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