Archive for September, 2012

Federal court ruling could create stricter FEC enforcement

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In the wake of the Citizens United case, the common narrative that has transpired among public interest reformers and media outlets, is one that suggests that the FEC’s ability to enforce campaign finance law has been “systematically gutted” over the past decade.  Yet in a recent article titled “No More Easy Outs at the FEC,” former FEC Chairman David Mason posits quite the reverse.  Events that do not quite make it to the level of the Supreme Court, or that otherwise prove insufficiently flashy enough to attract the sort of media attention that Citizens United did, nevertheless have important implications for the direction of campaign finance.  In particular, Mason refers to a court ruling that he believes will engender a heightened sense of scrutiny and stricter FEC enforcement measures and notes, “..it may not be enough to comply with the law—you need to document your compliance decisions and procedures.”  Though relatively minor in its solitary impact, this one example sheds light on an overall national political trend that appears to get lost in the complexity of our system.   Trends such as the rising costs of campaigns and an increased need for professional campaign services have implications that pale in comparison to Citizens United.

Of course, procedural improvements implemented at the FEC are made with the intent to increase accountability within the “regulated community” (PACs, candidates, parties).  Stronger accountability is a nonpartisan issue that few would argue has any negative direct effects.  Yet what tends to get overlooked are the indirect effects, including the pricetag of these procedural changes and where the financial burden of it may fall.

The rising costs of running a campaign, whether as a function of strengthened regulations or the reality of increasingly expensive media markets, has been primarily shouldered by political candidates.  Over the past century, campaigns have moved away from a party-centered model toward a primarily candidate-centered one.  Faced with dwindling party support, candidates had to look elsewhere for the financial support necessary to pay for services such as voter identification, registration, and distribution of campaign literature. Services that have historically been functions of the party machine are now being outsourced to political professionals. (See this article by Jill Lepore for a more extensive background of the professionalization of politics and how it became a business.)

This candidate-centered trend has created the perception that the more money a campaign raises, the more legitimate and credible its candidate is regarded by the media and the public.  The way in which this phenomenon developed can be likened to an arms race.  Candidates stock their war chests with campaign dollars, primarily as a defensive strategy.  Yet understanding the potential for those funds to be used offensively, opponent parties and challengers respond by developing war chests of their own.  In this environment, it is therefore easy to see how a candidate’s legitimacy is a function of how much money they are able to raise.  Money determines the extent to which an incumbent candidate can defend itself from potential challengers, or a potential challenger can run a professional offensive campaign a seated incumbent.

If Mr. Mason is correct, then along with the campaign managers and field directors, compliance services will soon be added to the budget as an indispensable component of the campaign.   Interestingly, what is perhaps become more valuable than precluding incidental FEC fines for minor reporting violations, are the ways in which the competitive political environment may enhance the political role that compliance plays.  Stricter enforcement measures increase the potential for minor compliance errors to become political problems.  And what candidate wouldn’t love to link their opponent to a “campaign finance scandal?”  Compliance specialists are in a position to save the campaign untold amounts in political capital by mitigating potential infractions before they occur (and appear permanently on the public record).

Beyond the professional implications are the unanswered concerns:  should the ability to fundraise be such a vital prerequisite of our elected officials?  Undoubtedly a certain number of otherwise highly qualified individuals that are simply not magnets for money are filtered out in the current system.  What do goliath-sized incumbent war chests, which function to raise de facto “entry fees,” do to the competitive landscape in American politics?  From a compliance standpoint alone, challengers are at a significant disadvantage as they are much more likely to incur administrative fines, while having the least amount resources at their disposal.  Of all administrative fines that were exacted to candidate committees by the FEC in the election year 2010, 94% of them were to challengers and only 6% were to incumbents.  Lastly, what prospects are there for a legislative solution when all members of congress have, by definition, been beneficiaries of the status quo?

Super PACs Crash the Conventions

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Brett Smiley – the founder and president here at CFO Compliance – hopped on a flight to North Carolina last week in order to serve as a delegate at the Democratic National Convention. This meant I had nobody in the office to badger with my pesky questions about campaign finances. Left to my own devices, I spent a lot of time reading news articles about Super PACs, while, incidentally, reruns of the television show, Friday Night Lights, were on in the background.

Actively consuming one form of media and passively consuming another at the same time forced my mind to merge them together in one collective blob of information. I started seeing real-life politics in a fictional program about sports. Let me explain.

Buddy Garrity is the fictional president of the fictional Dillon High School’s booster club. In the small town of Dillon – where the locals place nothing in the world above their love for high school football – Buddy has dedicated his adult life to convincing upper class, small-town Texans to write him large checks so that the football program can afford to buy things like JumboTrons and fancy uniforms.

Buddy and his booster pals are separate from the high school itself. They aren’t coaches, employees, or teachers. They are simply passionate supporters who raise funds and act in what they feel is the organization’s best interest.

Do you see where this is going?

Buddy Garrity, in his small sphere, is a Super PAC.

Super PACs are “non-profit” organizations that raise money to support certain political candidates. In this election year – the first since the Citizens United decision to allow unlimited, anonymous donations into independent political action committees – wealthy men and women are dedicating their time and talents to running these organizations. They are convincing other wealthy men and women to write large checks so that the group can afford things like prime-time political advertising.

These organizations are separate from the official campaigns they support. They have their own bank accounts, and their messages are uninfluenced by the particular candidate’s communication team. They are simply passionate supporters who raise funds and act in what they feel is the organization’s best interest. Because of this separation – because they are their own entities – the Supreme Court ruled that Super PACs do not need to adhere to FEC campaign contribution regulations.

However, that separation tends to blur in both cases. Buddy Garrity would tip-toe around the borderline by showing up to closed practices and making speeches at organized team events. Over the last few weeks, Super PACs have followed in his footsteps by making appearances at the conventions in Tampa and Charlotte.

Despite rules that prohibit official campaigns from planning and coordinating with their independent support groups, the conventions featured a lot of intermingling between elected officials and their Super PAC supporters.

According to this New York Times article, representatives from Restore Our Future, Americans for Prosperity and American Crossroads had “all but merged into a unified conservative machine.” They hosted parties that featured elected officials as guest speakers, had dinner with Senators, and stayed in the same hotel as the Romney campaign.

This probably shouldn’t matter. Wealthy people have always had more access to glamorous privileges than the average Joes. Miley Cyrus met the Queen of England; why should we surprised that these billionaires – who, it must be noted, are brilliant and successful human beings – are rubbing shoulders with politicians at the National Convention?

But it clearly does matter. It seems to be a cause of concern for many American people, and it’s the lack of regulation that seems to be disconcerting. FEC regulations and donor contribution limits exist in order to, yes, prevent an unfair fundraising advantage for either candidate, but they also exist to ensure that every individual vote – the ones from the broke 21 year-old college student all the way to the billionaire casino magnate – are counted equally. Elected officials are voted into office and represent the people with decision-making power. Everyone else is a tally mark on Election Day.

Super PACs weren’t breaking any rules in Charlotte or Tampa; they were simply showing how easily groups can get around them. The billionaire leaders of political action groups certainly aren’t bad people. Neither are the real-life, small-town equivalents of Buddy Garrity. But they’re powerful. And if a six or nine-figure check is enough to buy a meeting with a presidential candidate at a convention, average voters may fear that the people sign those checks will be given the power to voice their opinions at closed-door meetings about public policy issues that affect the entire nation.

In Dillon, Buddy was able to leverage his power to convince the head coach of a high school football team who to start at quarterback.

In an election year in the United States of America, Super PACs have already shown they have the money. Without regulation, voters seem to fear the leverage that money could create.