Reflections on Election Laws


Bob Bauer, political campaign attorney who invented the legal justification for “soft money” and now counsels to the Obama campaign and the Democratic Senatorial Campaign Committee, authors the Web site More Soft Money Hard Law on the side. Late last week, Bauer posted a transcript of comments he gave to a panel of the American Constitutional Society on the topic of “Can Campaign Finance Reform Actually Work?” In his comments titled “Enforcement Expectations and Hard Calls,” Bauer writes that we should temper our expectations about campaign law by what we want enforced. “On the basics,” Bauer writes, “the law has been plentifully enforced.” But hard issues exist in election law, and “tough calls” inherently exist. He warns against putting too much expectation on the law, and to strive to reach “comprehensible and rationally administrable” regulations.

As an example, he praises the Federal Election Commission for adopting broad exemptions of campaign finance laws regarding blogging and other Internet uses for campaign-related purposes.The FEC wrote rules that places Internet activities within the media exemption, activity that should largely be free of regulation, he argues.

Secondly, Bauer makes the case that a missing dimension exists in campaign finance law, the right of association. He fears that “careless or thoughtless” enforcement of regulation has encroached on and eroded this right. Deliberative democracy depends on collective political activity: people associating together and building coalitions, giving voice to their common interests.

This is work done on the streets of the phones or on the Web, wherever support can be recruited and energies toward a common goal can be mobilized. This comes about not only through the protection of “free speech,” important as it is: the right of association, broadly construed and vigorously defended, captures an aspect of this political work that has been seriously neglected.

He concludes by asking if this “shrinking space for association, the enforcement that constitutional doctrine permits” is the type of enforcement we want from our election laws.

In this vein, The New York Times reported over the weekend how tens of million of special-interest dollars are flowing into the two political parties to pay for the presidential conventions later this summer. The parties are barred from raising “soft money,” the formerly unrestricted large donations that was their bread and butter. The presidential convention loophole, however, allows unlimited giving, and for the corporation, it is all tax deductable. The parties are offering access to lawmakers, party bosses and potential members of the next administration in exchange for corporate dollars. Absolutely outrageous.

As Bauer cautions, we should take great care in what we regulate. And many of the issues are complex, requiring difficult and careful decisions. Legitimate citizen organizing and association should not be discouraged. But made clear by the convention loophole, there are still some easy decisions left unaddressed.