By Brad Smith

Students of campaign finance learn early on that contribution limits are subjected to less judicial scrutiny, and therefore generally upheld by the courts, while spending limits are subject to the highest judicial scrutiny, and consistently struck down by the Courts.

Bob Bauer and David Gans have been going back and forth on this, and their exchange is well worth reading. While the contribution/expenditure dichotomy serves a purpose as legal shorthand (sort of like the claim that Buckley says money is speech, which it doesn’t), it has, as Bauer notes, always oversimplified a complex issue.

What’s interesting to me is that the reform camp generally consist of liberals who tend to favor a “living constitution” and bridles whenever the free-speech camp, which generally consists of conservatives who tend to take historical or textual approaches to interpretation, says, “Congress shall make no law… .”  Yet the reform camp is in totally in a formalistic rut on this one, even after getting kicked around a bit by the courts in recent years.

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By Eliana Johnson

“Several months ago . . . I spoke with you about the American Future Fund, a 501(c)(4) organization that had submitted an exemption application the IRS [sic],” the FEC attorney wrote Lerner in February 2009. The FEC, which polices violations of campaign-finance laws, is not exempted under Rule 6103, which prohibits the IRS from sharing confidential taxpayer information, but the e-mail indicates Lerner may have provided that information nonetheless: “When we spoke last July, you had told us that the American Future Fund had not received an exemption letter from the IRS,” the FEC attorney wrote.

The timing of the correspondence between Lerner and the FEC suggests the FEC attorney sought information from the IRS in order to influence an upcoming vote by the six FEC commissioners. The FEC received a complaint in March 2008 from the Minnesota Democratic Farmer Labor Party alleging that the American Future Fund had violated campaign-finance law by engaging in political advocacy without registering as a political-action committee. The American Future Fund responded to that complaint in June 2008, telling the commission that it had applied for tax exemption in March of that year and was a “501(c)(4) social-welfare organization that was organized to provide Americans with a conservative and free-market viewpoint and mechanism to communicate and advocate on the issues that most interest and concern them.” According to the e-mail correspondence, a month after receiving the American Future Fund’s response, the FEC general counsel’s office — which is prohibited under law from conducting an investigation into an organization before the FEC’s six commissioners have voted to do so — contacted Lerner to investigate the agency’s tax-exempt status.

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WSJ Breindel fellow Angela Hunt on the agency’s efforts to frustrate a Congressional investigation into political abuse of conservative groups.

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By Peggy Noonan

In all the day-to-day of the IRS scandals I don’t think it’s been fully noticed that the overall reputation of the agency has suffered a collapse, the kind from which it can take a generation to recover fully. In the long term this will prove damaging to the national morale—what happens to a great nation when its people come to lack even rudimentary confidence in the decisions made by the revenue-gathering arm of its federal government?

It will also diminish the hope for faith in government, which whatever your politics is not a good thing. We need government, as we all know. Americans have a right to assume that while theirs may be deeply imperfect, it is not deeply corrupt. What harms trust in governmental institutions now will have reverberations in future administrations.

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By Bob Bauer

Replying to a posting here, David Gans has responded with a confident defense of the brief he co-authored on behalf of Larry Lessig in the McCutcheon case. On the question of whether the aggregate limit is a contribution or expenditure limit, he has no doubt: it is an “easy” one, he writes. But how easy is it?

The application has been uncertain from the beginning. A prime example is the limit on a candidate’s personal spending, struck down by the Buckley Court, which shows how a limit, like the aggregate limit, can straddle the contribution-expenditure line.

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By Paul Blumenthal

WASHINGTON — The next big campaign finance case to go before the Supreme Court began in February 2012 in the grand ballroom at the Marriott Wardman Park hotel during the “Ronald Reagan Banquet” at the Conservative Political Action Conference.

Alabama electrical engineer and budding political donor Shaun McCutcheon broached a problem in conversation with conservative election lawyer Dan Backer, who one day earlier had led a CPAC panel on rolling back campaign finance laws in which he predicted that campaign contribution limits would soon rise.

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Editorial

Closer inspection, however, reveals that the wherewithal for this worthy cause would be found by eliminating public financing for presidential election campaigns. For all its window dressing, the Republican bill is yet another effort to send the nation back to the corrupt days of Watergate and sleazy campaign money. Further, the money would not be available without separate appropriation legislation — an already finance-starved universe. This is lawmaking by fig leaf, as Representatives Nita Lowey and Rosa DeLauro, both Democrats, warned in urging colleagues to resist the Republican ploy. Far from repealing public financing, the House should be repairing the program, which Capitol Hill has cynically failed to update in this booming era of big-money politics. Worthy legislation has been introduced by Representatives Chris Van Hollen and David Price, both Democrats, but majority Republicans, true to their record, want no part of it.  

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