About Brad Smith's "Sensible Reform" posting and a call for support on electronic disclosure
By mmalbin Posted in FEC — Comments (15) / Email this page » / Leave a comment »
Brad Smith this morning (April 13) wrote on his blog: "Last month, during the Senate debate over requiring electronic filing of Senatorial campaign finance reports, Sen. Bob Bennett offered an amendment to the bill to remove limits on coordinated party spending. This effort was denounced as a 'poison pill,' even by 'reform' organizations, most notably the Campaign Finance Institute, that declared their support for the amendment itself.... It will be interesting to see if the 'reform' organizations that claimed to support it, just not as part of the Senate electronic filing bill, will now publicly endorse the measure." Well Brad, all you needed to do was to ask me directly. But of course, that would have taken the fun out of trying to portray me, and the Campaign Finance Institute, as one of those nasty "reform" organizations (compete with quotation marks). In truth I -- speaking in my individual capacity -- have supported unlimited coordinated spending by the parties for nearly thirty years: from my first published writing on the subject, through my years working for the House Republican leadership, until now.
Read on . . .
(An aside, to respond to the back and forth in the thread on Brad's blog about my positions as opposed to CFI's: CFI does not take positions on anything without going through an elaborate process involving bipartisan task forces, studies, and so forth, which means that it tends not to advocate such positions all that often. CFI has not yet addressed party spending through this kind of a process, which is why you won’t find it on the CFI website. You’ll finds lots of information about party spending and analysis – that’s the bulk of what we do – but not recommendations. I, on the other hand, have thirty years of academic writing, long predating CFI. Sen. Bennett asked me to verify my written position. I did and will continue to do so. It’s that simple. But to get back to the main point: )
My consistent position has been in favor of party spending provided there are limits on all contributions into the parties -- which is a big proviso that Brad does not accept. It has seemed especially odd to me to continue limiting coordinated spending after the Supreme Court in 1996 ruled that unlimited independent spending by parties is protected by the First Amendment. I have made that argument in print several times since 1996. And yes, Brad, I do intend to say it in the Senate Rules Committee's hearings on Wednesday. You can get my testimony when it's ready at www.CFInst.org.
Now let me address the suggestion that it is somehow hypocritical to use the phrase "poison pill" to describe an amendment that would have added a party spending provision I generally support as an amendment to a bill (S.223) that would require the Senate to file its disclosure reports electronically. I assume Brad supports electronic disclosure because he did so when he was on the FEC. Having gotten that out of the way, treating my position if it were as hypocritical simply casts an innuendo about a speaker without addressing the speech.
As to the merits: every single federal entity except the Senate -- House candidates, Presidential, parties, PACs, 527s and lobbyists -- file their reports electronically. Only the Senate exempts itself. Without mandatory electronic disclosure, Senate candidates take the electronic records they all have for their own use, print them out, send them to the Secretary of the Senate, who duplicates thousands of pages to send to the Federal Election Commission, which then duplicates them again to send to a vendor, who keypunches them into an electronic record for about $250,000 and a delay of months. The process is ridiculous. Everyone knows that it would be easier, cheaper, more accurate and would better serve the purpose of disclosure for candidates to send their electronic records in directly so they can be posted within 24 hours.
Thirty-five Senators have signed on as co-sponsors, including such noted left-wing reformers as Senators Allard, Bennett, Cochrane, Cornyn, Domenici, Graham, Grassley, Hagel, Hutchinson, Lugar and Murkowski. Mike Kremkasky endorsed the bill on this blog, as did Glenn Reynolds of Instapundit, Club for Growth, and a large number of other blogs left and right. In fact, this is a bill with absolutely no public opposition. If it ever comes up for a clean vote, it will pass unanimously. It passed the Rules Committee unanimously and it has already been cleared by the Democrats unanimously for floor action without amendment. The issue is whether it will receive this kind of clearance by the Republicans.
Everyone who follows campaign finance -- and this surely includes Brad Smith -- knows that almost everything else relating to campaign finance is controversial. Adding anything -- literally anything, no matter how good it may seem, is a way to turn a no-brainer consensus bill on electronic disclosure into something that is not likely to pass. Even the party spending bill, which Brad may think ought not to have opposition does have it. I will be testifying in favor of the idea but others people will be against. Good or bad, there is no denying that this is controversial. We at CFI (and electronic disclosure is a priority CFI effort) were arguing that the Senate ought to dispose of the no-brainer first, and separately, and then come back to deliberate on other issues next. For CFI's testimony on electronic disclosure, see: http://www.cfinst.org/disclosure/testimony_March07.aspx.
I hope this clears up the matter. And I hope the readers of RedState will ask their Senators once again -- now that the issue is almost but by no means yet complete -- to support a unanimous consent motion for the Senate to adopt without amendment the simple electronic disclosure bill (S.223) that was passed unanimously by the Senate Rules Committee.
Michael Malbin
Trying to pass an amendment to lift the limits on party coordination on a bill to require electronic disclosure sounds like a good idea to me. A chance to remove even part of the McCain-Feingold free speech restriction law is far more important than electronic disclosure by Senators.
I guess I am not surprised that Michael Malbin would call it a poison pill since he supports restricting freedom of speech.
kballen is right to keep priorities straight. I support electronic filing by senators, but it's really not much of an issue, and getting far more attention than it deserves. It is, at best, a very minor issue of good government management, as it would save the feds a couple hundred grand a year.
I certainly understand CFI's position - take the low hanging fruit, then move on. But frankly, electronic disclosure isn't a "campaign finance" issue at all, just an itty bitty "government management" issue. But if you really think both electronic disclosure and removal of limits on coordinated expenditures are good ideas, why not use the broad support for the former to help gain support for a broader bill that properly addresses the much more important substantive issue? Michael suggests that anyone who follows the campaign finance debate knows that removing coordinated limits is controversial. True, but that person would also know how incredibly difficult it is ever to pass meaningful reform at all, let alone meaningful reform that involves any loosening of the current rules, no matter how sensible. (By the way, Michael makes the comment, "My consistent position has been in favor of party spending provided there are limits on all contributions into the parties -- which is a big proviso that Brad does not accept." This may unintentionally confuse some. As it now stands, there are limits on all contributions into the parties, so Mike's proviso is met, and S. 1091 wouldn't change that.) Every bit of leverage must be used to achieve such meaningful reform. If electronic disclosure provides the leverage to get a good substantive measure (one that has a great deal, quite possibly majority support) over the top, use it. Further, there is a big difference between taking no position on an amendment and calling it "a poison pill." The use of "poison pill" rhetoric softens support for the underlying substantive position when it later comes up clean. But I digress.
Folks intersted in exploring the disclosure issue more - or understanding why it is really a non-issue in any policy sense - might want to look at these posts at CampaignFreedom.org, the site of the Center for Competitive Politics.
Never in the field of campaign finance has so little been owed by so few to so many.
Brad Smith
Professor of Law
Capital University Law School
Capital University website
Center for Competitive Politics website
I disagree with your assertion that disclosure is not a campaign finance issue, but simply a "good government" measure. Disclosure levies the informal(non-government-enforced) penalty of negative publicity or social stigma on candidates and contributors. (As opposed to the formal penalties of fines that result from exceeding limits.) This informal penalty is only brought to bear if contribution information is accessible to voters and those who disseminate public information.
It is true that disclosure is a weaker form of enforcement, but having quick and accessible information can't help but strengthen the campaign finance regime by bringing greater informal penalties to bear. It is good for more than saving the feds a few bucks.
In any case, by highlighting the weakness of disclosure, you've laid out the exact case for why we can never get rid of limits in favor of a disclosure-only regime. Thanks!
Brad Smith says of electronic disclosure that "it is really not much of an issue, and getting far more attention than it deserves. It is, at best, a very minor issue of good government management, as it would save the feds a couple hundred grand a year."
I consider disclosure to be important. The fundamental purpose of disclosure is to inform voters before an election so they may use the disclosed information in a timely way before they cast a ballot. Paper filing means that a majority of Senate records covering all contributions from July 1 on are not available to voters until after Election Day. This point is well documented in the Campaign's Finance Institute's studies on the subjects (for example: http://www.cfinst.org/pr/prRelease.aspx?ReleaseID=46.)
Therefore, this is not about saving a couple of hundred thousand dollars. This is about making what most people used to call the bedrock of campaign finance law be workable in the manner intended.
Finally, I agree that the issue is getting more attention than I wish it needed, but Senators apparently have to be told the public cares before they will act.
Michael Malbin
Moderate Mike and Michael Malbin mistake my argument. If you read the posts to which I link above, you'll see that I do not argue that disclosure is not a campaign finance issue, but that the question of electronic filing of Senate campaign finance reports is not a campaign finance issue, but simply a question of good management in carrying out the disclosure function. It is all but irrelevent to the substantive goals of the disclosure regime.
Indeed, remember that until a decade ago ALL campaign finance reports were ALWAYS filed manually, and they were never quickly scanned into a database and placed on the web. Yet no one said it was meaningless or unimportant or ineffective or that the law didn't matter. And I doubt that anyone really believes that the advent of electronic filing somehow made a huge difference in what Moderate Mike terms "informal(non-government-enforced) penalty of negative publicity or social stigma on candidates and contributors."
In other words, I did not say that disclosure is not a campaign finance issue - it is for the reason that the two Mikes give. What I said was that electronic filing of Senate reports is not a serious campaign finance issue, because the goals of disclosure are essentially realized with or without the electronic filing. Dr. Malbin points to CFI research showing that without electronic filing, voters have less information. No study was necessary for that. The question is, does it really matter? That question is not answered by repeating slogans about the need for disclosure. Does the difference between that information coming out at point A, or a couple weeks later at point B, really matter? Probably not, even when the election occurs in between, as 1) few voters actually do use the information, so it is not terribly important from a knowledge standpoint; 2) to the extent it does serve a knowledge function, most of the information it would include is already known, at least at the level of generality at which it would matter to voters or to the journalists who inform voters, and the added pre-election information yielded by electronic filing is unlikely to make any meaningful substantive difference; and 3) release of information later, even after the election, still serves the anti-corruption function of disclosure. Read the two posts to which I linked, which explain why adding electronic filing adds virtually nil to the campaign finance issues involved. In short, the argument I make, developed at some length in the linked posts - which I'll link again here -
How Valuable is Disclosure and Never in the field of campaign finance has so little been owed by so few to so many
- is not addressed by merely repeating how vital electronic disclosure is. My argument is that the claims that the two Mikes make above about the need for electronic filing of Senate reports (not of disclosure more generally) are simply quite weak if you really think about it and examine the issue.
Dr. Malbin says that this is not about saving a couple hundred thousand dollars, but the argument figured pretty prominently in his original post. I think this is because deep down folks know that the argument that disclosure doesn't work without electronic filing is pretty feeble. But everyone can relate to reforming a process that is, as Dr. Malbin says, simply "ridiculous" from a management standpoint.
But I don't want this to be a debate over the format of Senate filing or an argument between Dr. Malbin, whom I have long respected, and me. Ultimately, if for somewhat different reasons (or merely different emphases on the same reasons), we agree on both issues.
To me this is a question of priorities and understanding. First, do you want to expend energy on a relatively meaningless measure or go for something that would seriously address issues? Second, we need to start developing a more realistic perspective on the benefits of disclosure, which I have come to see have been vastly oversold - including by me - over the years.
So let's get refocused. Let's get focused on a reform that would really matter in the system, one that is eminently justified, hard to oppose on any of the grounds on which the pro-regulatory lobbyists have long opposed any liberalization of the system, and one that probably will have majority support in both chambers, especially if "reform" groups get behind it or merely don't actively oppose it: removing the limits on coordinated spending by political parties.
Brad Smith
Professor of Law
Capital University Law School
Capital University website
Center for Competitive Politics website
Alaska has had comprehensive campaign disclosure for many years now and electronic filing and disclosure for the last decade or so. (We also have very restrictive campaign finance laws, but that is another subject.) I think the finance laws are stupid, but the disclosure laws and web posting make a real difference in the political system.
My general theory of politics is that if you want to understand something, look to see who is getting laid or paid and that will usually explain it. The online disclosure allows you to see almost immediately who is getting paid. I know from my own experience that whenever someone showed up with a new idea, wanted a bill, wanted a job, wanted anything, the first thing you did was go to the Alaska Public Offices Commission (APOC) and see who they gave money to and who might be joining them in the endeavor. It might not determine a decision, but I assure you that the information informed virtually every policy decision. The APOC site is: https://webapp.state.ak.us/apoc/
You'll probably have to type it, couldn't get it to link, but every race and every contribution in the State for the last several years is a few keystrokes away.
In Vino Veritas
You keep focusing on the "good government" component of this reform. I don't think anyone is saying that this isn't going to save money and help the FEC do its job better. On the other hand, this isn't just a reform affecting the internal workings of the FEC--it affects the format in which information is available to the public.
Format MATTERS here. Disclosure "works"--regardless of the format--to the extent that voters make informed decisions. The prevalance of timely and relevant information leads voters to make informed decisions. Timely and relevant information is present to the extent that voters and/or disseminators of public information can access contribution data. An electronic format allows early (you know, before the election happens--which is a plus!) and easy access to contribution data. As mentioned, paper format, when compared with electronic format, makes for harder and less timely access by the public--this leads to less public information.
I think if you look back at your argument, you'll see that it only really undermines the justifications for disclosure itself, not just electronic disclosure. If we assume that disclosure works then the format absolutely matters!
You mistake the lack of controversy, by itself, to be an indicator of this reform's insignificance but sometimes reforms are so obviously in order that nearly EVERYONE can agree on them--Senate disclosure is one of those reforms.
See, here's where I start to get annoyed. It's electronic filing for crying out loud. This is not a game changing event, and while I support the electronic filing for the Senate, it's just not that big of a deal. Sigh, get it passed. Move on. But calling it grand reform is just silly.
I agree with this Mike Krempasky. Electronic filing is not game changing. The Senate should pass it. Separately, easily and soon. And then it should move on to other issues, including the party spending issue that started this exchange. No one I know has ever pretended otherwise. The problem has been that trying to join this issue to larger ones means that the one issue that should be a no-brainer does not get done.
But this is a good lesson in how hard it is to follow the insides of legislative politics and how tough it is to hold members individually accountable. Some background for those who are not too bored with this to keep reading: electronic disclosure is the kind of issue that normally should be passed routinely as part of a minor amendment to a funding reauthorization bill. But there has not been an FEC reauthorization bill in more than 20 years because of the fear that members will use it a vehicle for substantive change. Supporters of electronic disclosure next tried to have it added as an amendment to the annual FEC appropriations bill, but this was rejected as violating Senate rules because it would be legislating on an appropriations act. Next they tried moving it as an amendment to the lobbying bill but were told by Sens. Reid and McConnell that no campaign finance change would be germane -- even though (1) the lobbying bill already contained an amendment to campaign finance law involving airplane use, (2) the bill also required electronic filing by lobbyists, and (3) tis provision made no change to the underlying disclosure requirements.
So having been stymied three different ways, the ONLY way to make what should be a minor change happen is to get enough Senators' attention to bring it up separately on the floor. I know the process seems silly, but please don't blame those who want the change for pressing it. The Campaign Finance Institute would rather have been spending its time on other issues too. But if it did not stay on this, literally no one else was.
Michael Malbin
"The Campaign Finance Institute would rather have been spending its time on other issues too. But if it did not stay on this, literally no one else was."
I'd look at this with great fondness, kind of like snow days in the District. Because every day that staff stays busy on a non-issue like electronic disclosure, the Republic grows stronger.
Krempasky--I'm not saying it is a "game changing event" or that this is landmark reform. I am taking issue with Brad Smith trying to pass this off as solely a good government reform rather than a step forward (albeit a small one) for the federal campaign finance regime.
Again, if we believe that disclosure works at all, format matters! Not everything has to be a big issue or especially controversial--this is a needed reform that should've been passed long ago.
Though this thread is run down, I could not but help add this link to Senator Feinstein's press release issued April 17. It's all about good government management:
This is exactly the type of good government law that the Senate could adopt as a stand alone measure. ...
The Senate campaign filing system in place today requires paper copies of disclosure reports to be filed with the Senate Office of Public Records, which scans them to make a digital copy and sends the copy to the Federal Elections Committee (FEC) on a dedicated communications line. The FEC then prints the report and sends it to a vendor in Fredericksburg, Virginia, where the information is keyed in by hand and then transferred back to the FEC database – at cost of approximately $250,000 annually to taxpayers. ...
Frankly, this makes no sense to me.
Not a word about the benefits of more rapid disclosure. The bill is worth supporting as a logical bill of good government management. No need to burden it with more.
Brad Smith
Professor of Law
Capital University Law School
Capital University website
Center for Competitive Politics website
And with that last thought, let's let this string rest for a while.
Michael Malbin
Oops. I had thought Krempasky's was the last when I referred to "the last thought". I did not mean to appear to be cutting off ModerateMike34, who appears to agree with me on the format issue (because without electronic disclosure there is no effective pre-election disclosure for most post-July 1 money), or anyone else.
Michael Malbin
I am delighted to hear that Michael Malbin will be supporting S. 1091, supporting removal of the caps on party spending coordinated with candidates. That is certainly good news. I fear Michael takes offense where none was intended.
The reason I refer to CFI as a "reform" group, "complete with quotation marks" is because I refuse to concede the term "reform" to one side of the debate. Only when all folks who seek to reform campaign finance are awarded that label will I cease putting in quotes for those who are now granted it. For the ironic thing is that I seek far more far reaching reform than most "reform" organizations.
Michael, I am glad to hear that we will be in agreement on this issue, as on electronic filing.
Brad Smith
Professor of Law
Capital University Law School
Capital University website
Center for Competitive Politics website