THREE THINGS I LEARNED FROM READING I DID NOT KNOW OR SURPRISED ME:

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1 MONEY IN POLITICS READING LIST ANNOTATED La Raja, Raymond J Small Change: Money, Political Parties, and Campaign Finance Reform. Available at Amazon La Raja traces the history of campaign finance and its effect on the Republican and Democratic parties. Tracing the evolution of the parties from strong national organizations to more candidate centered campaigns, he makes the case for stronger national parties and concludes with three recommendations he believes would increase fairness and accountability: 1) Allow soft money donations to national committees up to $100,000; 2) Significantly raise caps on party-coordinated spending; 3) Let political parties control the release of public funds in the presidential general election. La Raja details the uniqueness of the two parties and devotes two chapter to the consequences of reform for party fund-raising and party campaigning following the Bipartisan Campaign Reform Act. A more concise accounting would have been appreciated. THREE THINGS I LEARNED FROM READING I DID NOT KNOW OR SURPRISED ME: 1. The causal link between reform and scandal is weak. 2. Party leaders have exploited campaign finance reform periodically as a tool to gain advantages over the rival party; also as an intrapartisan factional struggle in pursuit of electoral advantage. 3. AARP (FORTUNE magazine) is the largest membership organization and the second-most influential lobbying group in Washington, even though it doesn t make political contributions or engage in electioneering spending. THREE CONCEPTS MOST IMPORTANT FOR PEOPLE TO BE FAMLIAR WITH IN ORDER TO UNDERSTAND OUR CURRENT CAMPAIGN FINANCING SYSTEM AND ITS PRIMARY IMPACTS: 1. Democrats with their non-monetary advantage and decentralized structure, favor a system that a) minimizes the importance of private cash resources and b) discourages the concentration of resources. They favor laws that encourage public disclosure of campaign funds. Republicans prefer campaign finance regimes that give them maximum flexibility to use money. They consistently outspend Democrats. The cash advantage is particularly important in the era of education politics. The candidate centered politics of the 20 th century depends more on capital for mass media persuasion methods. 2. Corporations are typically interested in using donations to gain access to legislators; they are more reluctant than electorally oriented groups to funnel funds outside the party structure for campaign purposes. 3. Laws emphasizing dependence on voluntary donors have encouraged political money to flow outside the formal party structure to candidates and interest groups, which reduces accountability, competition, and fairness.

2 La Raja traces the origins of campaign finance reform from the turn of the century through the passage of BCRA and the consequences of these reforms to the Democrats and Republicans. He has recommendations for reforms to the campaign finance system. It should be noted that this book was written in 2004 and some of the information is dated. THREE THINGS I LEARNED FROM READING I DID NOT KNOW OR SURPRISED ME: a. Campaign reform legislation has not historically been enacted in response to scandal. b. Democrats tended to obtain more in-kind funding historically than Republicans and conversely, Republicans tended to raise more cash funds than Democrats. Consequently, each party targeted for reform the kind of funding that the other party tended to favor. c. BCRA encouraged the formation of 527 groups. THREE CONCEPTS MOST IMPORTANT FOR PEOPLE TO BE FAMLIAR WITH IN ORDER TO UNDERSTAND OUR CURRENT CAMPAIGN FINANCING SYSTEM AND ITS PRIMARY IMPACTS: a. History keeps repeating itself.... the real effect of BCRA like the Tillman Act of 1907, the FCPA of 1925, the Hatch Act of 1940, and the Smith-Connally Act in 1947 is to shift the locus of political spending within partisan networks from political parties to ideological interest groups which are less transparent and accountable. b. La Raja avers that a prohibitionist approach to campaign finance stunts the growth of large mediating organizations such as political parties that could play a more active role in recruiting candidates and getting volunteers involved in politics. He argues for fairer campaign finance laws to improve the balance of political resources. He believes fair laws should be simple and allow each party to exploit its strengths. c. Democrats and Republicans spend their money differently. Democrats target money toward candidate activities and Republicans spend for organization related activities. Lessig, Lawrence Republic Lost: How Money Corrupts Congress and a Plan to Stop It. Library A Harvard law professor, who previously clerked for Justice Scalia and was a colleague of President Obama at the U of Chicago, Lessig identifies two kinds of corruption. First there is quid pro quo corruption, where money or something of value is exchanged for a special favor or privilege from government. This is illegal, but while it happens on occasion, Lessig sees a second type of corruption, dependence corruption, as a far more significant problem. Dependence corruption occurs when public officials are more dependent on someone or some group other than upon the People alone. Congress today, Lessig argues, is more dependent on large scale campaign funders than voters ( the People ). Moreover the relationship between members of Congress and funders/lobbyists involves mutual benefit. Public officials require the campaign funds provided by funders/lobbyists and look forward to higher paying jobs as lobbyists after they leave office, while lobbyists gain continued employment and large scale funders maintain and expand their relative privilege. Thus the system reinforces itself without evil people or evil intentions.

3 Lessig analogizes the dependence to an addiction. He observes that it affects the issues taken up by Congress (primarily those important to large commercial interests) and how members of Congress vote on all but the most controversial issues. In addition, it has caused a loss of trust in government by voters because of the proximity of money to political outcomes. As a solution, Lessig believes that dependence corruption must end, so that elected officials are dependent on the people as a whole. Because he thinks Congress is unlikely to take the requisite action to end their dependency on their own, Lessig proposes that non-politicians prominent, well-respected citizens from both parties run for Congressional office in primary elections for the sole purpose of either changing the system or compelling politicians to commit to changing the system. These candidates must agree in advance to withdraw as candidates as soon as they are successful. He also suggests having presidential candidates in both parties run on a reform platform and commit to holding government hostage by, for example, impounding spending (on Congressional salaries) and vetoing all bills, until Congress enacts the requisite reforms. At that point, the citizen-president would resign and the vice president would take office to lead the country for the remainder of the term. Lessig s final strategy is to seek a constitutional convention. An interesting, easy read, Lessig blames no one for the current system of funding legislators. Congressional people spend 30-70% of their time fund raising so having this money pouring in is a time saver and is welcomed. They are usually so concerned with raising dollars for their next campaign that there is almost no time to study bills. They are dependent on their staff and lobbyists to tell them how to vote. The information from lobbyists will be limited in scope. Although they are not supposed to know who their financial benefactors are, Lessig points out that they do know and this will certainly have at least a subliminal influence on their vote as well as giving the perception of corruption to the voters. Lessig presents several possible solutions, disappointing because they seemed weak and unlikely. Magleby, David B. Editor, Financing the 2012 Election. Washington, D.C. The Brookings Institution. This anthology of essays, replete with charts and graphs, is the most thorough and rigorous on 2012 election financing which I have read. Besides an introduction ( The 2012 Election as a Team Sport by the editor) and a conclusory essay ( Lessons for Reformers ), there are six essays analyzing, respectively, the 2012 election regulatory environment, presidential nomination campaigns financing, Presidential general campaign financing, Congressional campaign elections financing, party money in 2012 elections and interest groups (including super PACs and 501(c) and 527 groups). While the detail of these essays can be tedious, even sleep-provoking, it is extraordinary helpful at getting a sense of the complexity of the election financing system and of the unintended consequences of previous reforms, e.g, the wellintentioned intent to limit large donations to candidates ultimately fostered the development of noncandidate groups, whose activities now play a major roll. It also confirms that dark money is not new and provides a perspective and context for the Citizens United decision.

4 Note: While I am happy to loan this book to anyone who wants to read it, it is useful to me in finding quotes and concepts for the Voter, so if you want to borrow it, please contact me by or phone. PW THREE THINGS I LEARNED FROM READING I DID NOT KNOW OR SURPRISED ME: 1. A federal office holder, candidate or national party official can speak at or be a featured guest at Super PAC fundraisers and events so long as the federal official does not solicit contributions of more than $5,000. The candidate or party leader has to leave the asking to someone else to be permissible under federal law. 2. Candidates are the preferred recipients of contributions because they can spend more efficiently and because their spending is part of a campaign strategy and focused message. Candidates have an advantage in terms of advertising rates. The timing of money can be more important than the amount c groups do not disclose donors, can spend unlimited amounts; 527 groups can give unlimited amounts, cannot expressly advocate for election or defeat of a candidate, were established to influence elections in general and do not register with the FEC as federal committees. THREE CONCEPTS MOST IMPORTANT FOR PEOPLE TO BE FAMLIAR WITH IN ORDER TO UNDERSTAND OUR CURRENT CAMPAIGN FINANCING SYSTEM AND ITS PRIMARY IMPACT 1. Super PACs will continue to play a role in presidential elections but public financing will not. The amount of money candidates can raise will dwarf the amount of public funds available to them, so presidential candidates will continue to fund their campaigns with private donations, as in The party that controlled the state redistricting process eased the way for the success of its party in congressional elections. Mutch, Robert E Buying the Vote. This is a well presented and researched historical tracing of critical bills and events that led to the Citizens United decision. The reading was slow but worth the effort. A new understanding for me was the relative disorganization of the Democrats because of their varied constituencies and not necessarily loyal base. Republicans typically have good organization and have always been backed by loyal wealthy donors. Of interest is: the tracing of the persistence of conservatives towards their goal; decisions of the Supreme Court and the ensuing consequences; finding that disclosure of donations results in lower dollar amount contributions from wealthy individuals/corporations but when applied the system has worked democratically. Chapter 8 includes discussion about various avenues of funding/donations: soft (outside) money; 527s (political organizations (largely Democrat) formed under section 527 of the tax code and guaranteeing that income from contributions was not taxable when used for the exempt function of electioneering, or influencing the election of candidates to public office); 501 (tax code), largely Republican,

5 exempted from taxes for having as their primary activity something other than influencing elections (501 (4) social welfare organizations do not have to reveal donors simply by NOT mentioning in their fundraising appeals that contributions would be used for electioneering communications). Chapter 9 is the author s conclusion wherein he poses the question: how, if at all, does the corporation fit into our definition of democracy? Powell, Lynda W The Influence of Campaign Contributions in State Legislatures: The Effects of Institutions and Politics. Surveying 3,000 legislators (40% return) from 99 legislative chambers in 2002, Powell analyzed the results from a Political Science perspective to determine if campaign contributions to legislators do influence the content and passage of legislation in their chambers. Chambers differ considerably. Contributions have considerable influence in some state legislatures, very little in others. Influence is an increasing function of higher levels of member compensation, constituency population size, the proportion of members with ambition for higher office and the sheer number of members in a chamber. Influence is lessened in chambers with term limits and in states with more educated constituents. Term limits tend to focus on short-term (rather than long-term) consequences. Term limits increase the power of the executive branch at the expense of the legislative branch. The consistent negative relationship between citizen education levels and political corruption found in many studies supports the argument that disclosure requirements could reduce the influence of contributions. Campaign finance regulations effects are modest and difficult to discern. Mandatory disclosure of contributions is required by all states, although details of the requirements vary. Lobbying efforts informational and access are addressed in Chapter 8. The informational view of lobbying argues that while lobbyists may provide information to advance their own self-interest, legislators can use this information to better understand the effects of their legislative decisions. The access view posits that if lobbyists are granted access to legislators based on campaign donations legislator s issue priorities and substantive actions may accommodate donor s interests to the detriment of the constituents interests. Of interest: Powell mentioned earmarks quoting David Brooks: these things that members of Congress as individuals can put in to the budget bill sometimes in the middle of the night with no oversight. When that is the situation you are going to have corruption. Earmarks require funds to be spent on specific projects, or they carve out exemptions from requirements or taxes, and they may be designed to benefit narrow interests or particular firms. They can be added to a large bill by one member without a vote. These are typically last-minute additions, not even read by other members who vote on the bill as a whole. Samples, John The Fallacy of Campaign Finance Reform. Available at Amazon

6 In this very detailed, well sourced book, the author takes a penetrating look into the premises and consequences of the long crusade against big money in politics. One of his arguments is that there is little empirical evidence that campaign contributions really influence members of Congress (he fails to show a connection between contributions to a politician and their voting record). He also argues that our most common concerns about money in politics are misplaced because the ideas implicit in our understanding of corruption are incoherent or indefensible. Samples compares and contrasts the Madisonian philosophy of limited government, natural rights of which speech is one and uncompromising to the progressives ideals to restrict money in politics. Further he recounts that Madison believed government is the problem (a la Ronald Reagan). Madison and his followers proposed a political structure that would set interests into conflict thereby limiting government and preserving liberty. John Samples is Director of the Cato Institute s Center for Representative Government, a well known think tank, dedicated to the principles of individual liberty, limited government, free markets and peace. As their web page indicates, Cato owes its name to Cato s letters, a series of essays published in 18 th century England that presented a vision of a society free from excessive government power. This thinking inspired the architects of the American Revolution. THREE THINGS I LEARNED FROM READING I DID DNOT KNOW OR SURPRISED ME: a. Madison's view that government was the problem. I thought this notion arose during Reagan's presidential campaign and his 8 years in office. b. CFR might serve some powerful special interest and not the common good. CFR might be a form of corruption. c. With the McCain-Feingold legislation, Senator McCain worked 5 years to get buy in from republicans and vulnerable democrats (in terms of re-election) to support the legislation. He bought members' votes with the currency of incumbent protection. THREE CONCEPTS MOST IMPORTANT FOR PEOPLE TO BE FAMILIAR WITH IN ORDER TO UNDERSTAND OUR CURRENT CAMPAIGN FINANCING SYSTEM AND ITS PRIMARY IMPACTS: a. Definition of soft money b. Definition of dark money c. Politicians further their own goals and self interest, not the public interest. Politics is a struggle to obtain and hold power. Those who have power will create election rules that maximize the likelihood they will win re-election. Voters are better off if their representative fears defeat at the polls. So politicians work to reduce competition. What is good for the people, may be bad for the representative and vice versa. 3 THINGS I LEARNED FROM READING I DID NOT KNOW OR SURPRISED ME:

7 1) A restriction on the amount of dollars a person or group can spend on political communication during a campaign necessarily reduces the quantity of expression by restricting the number of issues discussed, the depth of their exploration, and the size of the audience reached. 2) Nonvoting might create an electorate that differs systematically from the population that is eligible to vote. Voters are more likely than nonvoters to be male, white, rich, educated, and residentially stable; less liberal than nonvoters with respect to issues concerning the economic role of government; more liberal on defense, the environment and social issues. 3) The idea of a donation booth wherein all donations would be made secretly (as in voting). The proponents Ackerman and Ayres believe this would resolve the conflict between free speech and the prevention of corruption and break the putative link between donors and politicians. 3 CONCEPTS MOST IMPORTANT FOR PEOPLE TO BE FAMILIAR WITH IN ORDER TO UNDERSTAND OUR CURRENT CAMPAIGN FINANCING SYSTEM AND ITS PRIMARY IMPACTS: 1) The Samples book is a view of Progressive thought from the Madisonian perspective. It is important to understand both views: Progressive = trust of government under control of an ethical and enlightened elite, the idea that individual liberty comes from society and its active element, government. Madisonian = natural rights, limited government, individual liberty; individuals are free and able to create property by their labor. The process of creating labor establishes a right to it. 2) Justice Breyer s argument that the First Amendment s constitutional role is not simply one of protecting the individual s negative freedom from governmental restraint. it fosters this right to collective participation by encouraging the exchange of ideas needed to make sound electoral decisions and by encouraging an exchange of views among ordinary citizens necessary to their informed participation in the electoral process. 3) The watch dog lacks teeth resulting in lack of oversight. Legislators enfeebled the Federal Election Commission by dividing its leadership evenly by party as insurance for all members of Congress against politically motivated investigations of their past campaigns. FEC has the power to write regulations to carry out the law; all proposed rules must be submitted to Congress where either house can veto them by a simple majority vote. Teachout, Zephyr Corruption in America: From Benjamin Franklin s Snuff Box to Citizens United. Library Fordham law professor Zephyr Teachout tracks the concept of corruption from philosophical authorities, such as Montesquieu and Locke, which our constitutional framers drew on, through the present limited definition of quid pro quo, drawing her arguments from constitution provisions and relevant major US Supreme Court cases. She argues that historically corruption referred to the use of public power or resources for personal benefit or enrichment and not merely quid pro quo arrangements (as the current Supreme Court has limited it). She identifies several constitutional provisions whose purpose was to protect against corruption and avoid dependence of public officeholders on anyone except the electorate.

8 Analyzing the judicial habits and deeper belief systems that might lead justices to understand corruption in a particular way, she suggests such causes as a conflict between law and economics theory of the person and the historical meaning of corruption, a complacency about democratic collapse and an unfamiliarity with the experience of politics. She also explores the relationship between corruption and equality and notes that protection again the former is required to preserve the latter. 3 THINGS I LEARNED FROM READING I DID NOT KNOW OR SURPRISED ME: 1. A bright-line rule is a rule in which an act is examined without regard to whether there is corrupt intent. 2. In 1970 only 3% of senators and congress people leaving office became lobbyists, now over 50% do. 3. The Supreme Court has transformed from a Court filled with politicians to a court with no politicians. No member of this court has ever been elected to any office or run for office. THREE CONCEPTS MOST IMPORTANT FOR PEOPLE TO BE FAMLIAR WITH IN ORDER TO UNDERSTAND OUR CURRENT CAMPAIGN FINANCING SYSTEM AND ITS PRIMARY IMPACTS: 1. When the framers of the Constitution spoke about corruption (which they often did) they focused on the moral orientation of the citizens and representatives as being the most essential building blocks of the republican state. They focused on a public oriented government and warned of the dangers of unrestrained self interest. The founders went out of their way to avoid the perception of corruption in intent. For many years the understanding was that an act was corrupt when private power was used to influence public power for private ends; a system was corrupt when the public power was excessively used to serve private ends instead of the public good. The current provable evidence of corruption is a quid pro quo act. 2. Corruption is inevitable and corruption defeats liberty, but corruption s worst dangers may be overcome by structure and culture. 3. In spite of the central role lobbying plays in our political culture, the Supreme Court has never addressed the difficult questions around the values that lobbying both serves and undermines. (Lobbyists have multiple functions: information sharing; information gatherers; enable nontransactional relationship but avoid the legal limits that come as explicit deals.) Tokaji, Daniel P. & Strause, Renata E.B The New Soft Money: Outside Spending in Congressional Elections. Electronic link:

9 Approximately 100 pages, this publication succinctly describes the current system of campaign regulation (including the four basic modes of regulation expenditure restrictions, contribution restrictions, public financing and disclosure requirements); traces the development of federal campaign finance law; surveys spending in federal elections; describes the different types of groups who engage in independent campaign spending; and examines the impact of outside spending on congressional campaigns and on the legislative process. As we know, campaign contributions and expenditures have risen dramatically over the last several decades. For example, total expenditures by all nominees in House and Senate campaigns increased 450% between 1974 and This compares to an increase of 240% for private four-year private schools and an increase in the cost of regular gasoline of 148%. The study identifies four basic types of outside groups who spend money (in addition to candidates and parties): Shadow Parties, Old Hands, New Kids on the Block and Buddy PACs. The majority of negative ads are run by these groups. And the study reports a high degree of cooperation between outside groups and congressional campaigns, often through publically-made signals, though care is often taken to avoid federally-prohibited coordination between outside organizations and campaigns. There is an executive summary on pages 1-6 which outlines the methodology and finds. Note: this material is under copyright but may be read online. Paula did a very nice review of The New Soft Money by Daniel Tokaji & Renata E. B. Strause. It is an interesting read, although tedious at times due to the amount of data presented. The purpose of the book was to document the effect of soft money on federal elections. 28 interviews were conducted with key political players (former members of Congress, recent congressional candidates campaign staff, those working for outside groups). Extensive research into the laws and regulations governing independent spending and disclosure, attention to FEC proceedings on questions of coordination, search and tracked statements in the Congressional record and press identifying possible impacts of independent election spending on the legislative process were all a part of the report. Interesting findings include: 1. members of Congress see independent spending as a THREAT, usually implicit but sometimes explicit, for those who refuse to toe the line of outside groups; 2. there is a high degree of cooperation between outside groups and congressional campaigns even though they tread carefully to avoid coordination as defined by law; 3. political players interviewed are largely in agreement in their views of how outside spending has changed the political landscape. Vogel, Kenneth P Big Money. Library Written by a political reporter, Big Money is an insider s guide to independent expenditures/dark money. It focuses on the rise of large independent private donors who have done an end run around the two major political parties, reshaping the federal campaign processes over the last decade. The narrative is peppered with names of billionaires, organizers and operatives. Meetings, antagonistic struggles, alliances and secluded events are described with cavalier familiarity. Vogel describes three major factions, a shadow Republican Party associated with Karl Rove, an Independent/Libertarian group

10 associated with the Koch brothers and a shadow Democratic Party associated with Obama, as well as a host of large independent donors, such as Sheldon Adelson and George Soros. He paints a disturbing picture of disparate wealth, game playing and limited access for the average citizen. From page 181 (Chapter 10 The Autopsies): 100: the number of mega-donors it took to raise $470 million for the limit-free super PACs 5,667,658: the number of small donors it took to give a combined $370 million to President Obama and Mitt Romney This is at times an almost gossipy romp through the rise of soft money. The author Kenneth Vogel is a reporter from Politico who seems to have ways of getting himself into closed (with frequent evictions) fund raising meetings of major political donors. The rising influence of a relatively few ultra-rich donors to the shadow Republican (Rove), Libertarians (Koch brothers), and Democratic (Obama) political operations is resulting in an upside-down system where candidates and their parties no longer have the loudest voices in campaigns or even the ability to determine the issues debated in campaigns. Acts critical to this development are the McCain-Feingold bill banning soft money donations to the parties and restricting the types of cash that could be used to fund advertisements in the weeks prior to an election; Citizens United declaring that money is speech; and Speech Now.org vs. Federal Election Commission that paved the way for super Political Action Committees allowing individuals (and unions and corporations) to spend unlimited amounts on candidates as long as they did not coordinate with candidates. Vogel follows the money of the three shadow groups, tracing the courting of donors, the rise and coordination of the super PACS affecting state and federal elections, the development of massive voter databases. In Acknowledgments Vogel credits the ongoing work of the Campaign Finance Institute, the Center for Responsive Politics, Center for Public Integrity and the Federal Election Commission in the difficult task of following the money. Chapters in Books: Levy, Robert A. & Mellor, William H Campaign Finance Reform and Free Speech. Ch. 5 in The Dirty Dozen: How Twelve Supreme Court Cases Radically Expanded Government and Eroded Freedom. Pp Writing before Citizen s United, the authors are critical of the majority decision in McConnell v. FEC (2003) as violating First Amendment rights by prohibiting unions and corporations from naming candidates in broadcast ads within 30 days of a primary or 60 days of an election. They characterize politics as a bargaining process between voters and candidates, during which a candidate offers to support certain policies in exchange for a voter s promise to vote for, or to campaign on behalf of, the

11 candidate or to run an ad or donate money so that the candidate can run an ad. All have the same end result in mind getting the candidate elected. All come about through constitutionally-protected political speech and are not corruption, so long as the promises are not illegal, as would be a candidate s promise to support a particular policy in return for a personal gift, such as a house or a car. Stevens, John Paul Campaign Finance. Ch. 3 in Six Amendments: How and Why We Should Change the Constitution. pp A dissenter from the Citizens United decision, retired Justice Stevens believes that the problem stems from a fundamental error in the Buckley v. Valeo (1976) decision, which held that campaign contributions could be capped, but the First Amendment barred restrictions on candidate campaign expenditures. To fix this error, Justice Stevens proposes a one-sentence Constitutional amendment: Neither the First Amendment not any provision of this Constitution shall be construed to prohibit the Congress or any state from imposing reasonable limits on the amount of money that candidates for public office, or their supporters, may spend in election campaigns. Brief and to the point, cases pertinent to the Citizen s United decision are cited with Buckley v. Valeo being the pivotal case that would eventually lead to Citizen s United in which in a 5/4 vote the Supreme Court held that corporations have an unlimited constitutional right to finance campaign speech. The Court gave two reasons for this decision: 1) Advocacy of the election or defeat of candidates for federal office must receive at least as much protection under the First Amendment as the discussion of general policy issues and 2) the concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment. Justice Stevens disagrees citing Supreme Court rulings that indicated other than their reasoning.