Institute for Law and Politics Events During the RNC - Tuesday, September 2

The Institute for Law and Politics is hosting a number of events at the University of Minnesota Law School on Tuesday, September 2, during the Republican National Convention in the Twin Cities.

Parking and directions are available here. For additional information, visit the Institute for Law and Politics home page.


12:00pm-2:00pm Alumni Lunch with Special Guest Rachel Brand

Alumni of the University of Minnesota Law School are invited to a lunch hosted by Dean David Wippman with special guest speaker Rachel Brand.

Ms. Brand is a former Associate Counsel to President George W. Bush and also served as Assistant United States Attorney General for Legal Policy, heading up the confirmation hearings for Chief Justice Roberts and Justice Alito.

The Alumni lunch will be held in the Lindquist & Vennum Conference Room on the 3rd Floor of the Law School.


2:00pm-3:15pm Expert Panel Discussion on "Minnesota Politics"

Please join some of Minnesota's top political experts for a discussion of Minnesota's unique political culture and current events in Minnesota politics.

Panelists include former Congressman Tim Penny, Hamline Professor David Schultz, Former State Representative Kevin Goodno, and "Politics in Minnesota" Publisher Sarah Janecek.
This discussion will be moderated by Institute for Law and Politics Co-Director Tim Johnson.

The "Minnesota Politics" discussion will be in Room 25 on the lower level of the Law School and is open to the public.


3:30pm-4:30pm Conversation with Common Cause President Bob Edgar on "Money and Politics"

Please join in a discussion about the role of money in politics with two of the nation's leading authorities on the subject.

Institute for Law and Politics Co-Director Guy Charles will join in a discussion with Common Cause President, and former Congressman, Bob Edgar on the topic of "Money and Politics."

The "Money and Politics" discussion will be in Room 25 on the lower level of the Law School and is open to the public.

We hope you can join us for these exciting events.

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Presidential Candidate Campaign Obstacles

Now that there's a mini-lull in the presidential campaign schedule, here is some information on the obstacles facing each of the remaining presidential candidates:

For Senator John McCain (R-AZ), the presumptive Republican nominee, there is a concern that his prior entry into the Federal Election Commission's (FEC) public financing system, and the FEC chairman's recent letter suggesting McCain will not be able to withdraw from such a system, will hamstring his campaign before he officially accepts the Republican nomination in Minneapolis-St. Paul in September. Of particular interest is the irony that the very system McCain helped create may well limit his ability to compete with financial juggernauts, Sens. Barack Obama (D-IL) or Hillary Clinton (D-NY). This, of course, is in addition to the recent, oft-criticized reports, that McCain engaged in an improper relationship with a female lobbyist during his 2000 presidential campaign.

Before Senator Clinton even worries about facing McCain, however, she needs to combat the perception that her campaign is losing momentum, or as the New York Times reports, that her political horizon "darkens." As of Monday, February 25, Clinton has lost eleven straight nominating contests to Obama, and her campaign acknowledges that she must win delegate-rich Texas and Ohio to remain competitive.

Senator Obama faces obstacles on several fronts, including Republican accusations that he lacks patriotism, Senator Clinton's suggestions that Obama has flip-flopped on his stance on union involvement in this campaign, and even the concern that perennial presidential candidate Ralph Nader, who recently announced he will again seek the presidency, will siphon votes from Obama. Finally, those comparing Obama to inspirational politicians of the 1960s fear that his candidacy threatens his life.

It will be an interesting 9-10 days to see which of these obstacles proves lasting and which fades with the passage of time.

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Institute for Law and Politics Advisory Board member discusses campaign finance

Check out this C-SPAN appearance by Institute for Law and Politics Advisory Board member Morgan Felchner, the Editor of Campaigns & Elections magazine, as she discusses presidential campaign finances and takes viewer calls.


Video Here

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Politico: Fred Thompson's campaign has one month to prove itself

The Politico's Mike Allen argues that Fred Thompson has until the end of September to prove himself as a top-tier Presidential candidate:

"Now Thompson needs the cash spigot to begin gushing as soon as he appears Thursday at Des Moines’ Polk County Convention Center. He needs to swiftly validate the premise of his campaign, which is that there’s pent-up demand among Republican donors and activists for some alternative to Mitt Romney and Rudy Giuliani.

So Thompson’s deadline is not Election Day 2008, or even the January nominating contests.

The make-or-break date for his campaign is Sept. 30 – the Federal Election Commission cut-off for the next financial report. That document, which must be filed by Oct. 15, will determine Thompson’s fate. If he looks weak, he is unlikely to get the money, endorsements and grass-roots support that he’ll need to pull off his Houdini act, insiders say.

It amounts to a three-week, do-or-die sprint, and even Thompson does not claim to be a sprinter."

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Politico article underplays importance of Primary Election fundraising

In a Politico article today, Michael Rosen argues that the media has been overemphasizing the importance of primary election fundraising totals, and that such dollars are not useful for general election victories:

"If you read the papers in recent days, you might have thought that Republicans were well on their way to the poorhouse in the presidential game. But despite the fundraising disparity between the Democrats and the GOP, don’t get too caught up in the numbers...

"First, and most straightforward: the dollars that Clinton, Obama, and company have raked in are overwhelmingly for use during the primary and not the general election. True, some donors who maxed out their primary contribution limits gave further money for the general. But these were a tiny minority of contributors.

"Instead, the Democratic candidates’ fundraising prowess speaks to the passion of their donors’ sentiments about each candidate with respect to other Democrats. Obama raised his massive sums from folks who want to keep Clinton out of the Oval Office, and vice versa."

I have two points of contention with this argument.

First, I disagree with the idea that current donors are part of an "intraparty rivalry". Sure, Obama's (or any other candidtate's) donors want him to beat the other candidates within his party, but mostly they are giving to him because they want him to be President. The idea that a pre-nomination donation is meant to fund an intraparty battle seems completely weak to me. Pre-nomination dollars, like post-nomination dollars, are almost universally given in support of the candidacy of a particular candidate, not in opposition to that candidate's current rivals.

Second, the presentation of a distinction between "primary" and "general" election dollars is misleading. The article states, "the dollars that Clinton, Obama, and company have raked in are overwhelmingly for use during the primary and not the general election," implying that these "primary" dollars don't help the candidate become President, but only to get the nomination. First, any dollar spent building name recognition, developing a campaign infrastructure, and communicating a candidate's message - whether in July of 2007 or October of 2008 - is a benefit to the candidate's long-term political prospects. Additionally, though campaign finance law makes a distinction between "primary" and "general" election dollars, it is not in the way the article implies. By playing down the importance of primary election dollars, and implying that they are not as valuable as general election dollars, one could infer that primary election dollars can only be spent during the primary and only against intraparty rivals. Both of these implications are false. Primary election dollars can be spent against primary rivals, but can equally be spent against opposing party candidates. More important, unspent primary election dollars can be carried-over into the general election, and thus be used both as a primary election war chest and spent as general election dollars (assuming the candidate wins the primary election).

This is all to say that while the article may be correct in being critical of mainstream media's emphasis on these fundraising benchmarks (the mainstream media tends to generally focus too much on these horserace issues, ignoring real issues), the article swings the pendulum in the opposite direction, under-emphasizing the importance of these primary election financial totals.

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Is Ron Paul now a top tier candidate?

On July 15, presidential candidate Ron Paul will report raising $2.4 million in the second quarter of 2007 with over $2 million remaining in his campaign account after paying expenses. This is more cash on hand than any of the other Republican candidates except Rudy Giuliani and Mitt Romney. Texas Congressman Ron Paul now has more money than John McCain. [Thanks to the "Colbert bump"!]

Ron Paul has for months been the darling of the libertarian-leaning internet crowd, but apparently his fans are willing to back up their blog presence with real campaign cash.

With the #3 war chest in the race, should Ron Paul now be taken seriously by the mainstream media? And how will Congressman Paul use his $2 million? Is he going to build a traditional Iowa/New Hampshire/South Carolina staff operation, or will he leverage it in online ads for even more cash come 2008?

Another note: Is there anything John McCain can do at this point to even remain on the Iowa ballot by next January?

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More on WRTL: Did Supreme Court open the door to more corporate money in politics?

Institute for Law and Politics Advisory Board Member Rick Hasen has additional analysis of today's WRTL v. FEC decision by the Supreme Court on the ElectionLawBlog.

From Professor Hasen's post:

"...[T]he limit on corporate and union spending is now dead as a practical matter. The test that Roberts/Alito embrace is essentially the same...approach of the lower court: if an ad can be viewed as not about electing a candidate (and instead about an issue), it must be viewed that way and exempt from the PAC requirement."

Assuming Professor Hasen's interpretation of today's opinion is correct, the 2008 elections will likely be drastically more expensive and divisive than most of us have been anticipating.

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Buckley Lives! Reaction to today's Supreme Court decision in the WRTL case

David Schultz response to the Supreme Court decision in Wisconsin Right to Life (WRTL) v. Federal Election Commission (FEC)

Buckley lives! After reading the WRTL opinion it is clear the Buckley v. Valeo as a precedent is alive and that one of the microsteps that BCRA made to campaign finance regulation is being undone. The WRTL decision in itself is minor in terms of its real impact on campaign ads, but it may portend larger changes on the Roberts Court.

Footnote 52 and the accompanying text in Buckley ushered in the express v. issue advocacy distinction in the campaign finance regime. In arguing that express advocacy included appeals that used what has come to be known as the “magic words”—vote for, elect, support—the Court sought to distinguish electoral speech that would receive First Amendment protection from that which would not, especially when it came to particular speakers such as labor unions or corporations. The Tillman Act and Taft-Hartley barred corporations and unions from directly seeking to influence federal elections. The express v. issue advocacy distinction supposedly maintained the bar on speech directly affecting federal elections by these and other actors, such as non-profits, but preserved their First Amendment rights to comment on matters of public concern.

The express/issue advocacy become the loophole through which a money tank was driven. Unions, corporations, and non-profits all exploited it to influence federal elections by simply running ads that did everything an express advocacy ad did except saying “vote for” or “support.” Instead, these ads, often the nastiest of the negative ads, asked viewers to “Call Senator so-and-so and ask him or her why s/he opposed x.” All of us knew these issue ads were functionally equivalent to express ads, and studies by several scholars proved that.

Section 203 of BCRA tried to fill in the loophole with the new definitions of electioneering communications and the 30/60 day rule. While many saw BCRA as a major reform, I argued at the time of its passage that it was a very minor incremental change. Groups could circumvent it with creative ads, front load ads outside the window, or shift their money to other activities within that time period such as GOTV. Overall, between diversion of money to 527s, creative ads, and a shift to other more creative target marketing in 2004 and 2006, Section 203 had little teeth.

Today’s WRTL decision effectively restores the express/issue advocacy rule to status quo ante prior to BCRA. Effectively footnote 52—to pun today’s decision—is functionally the law of the land again. Look to see a return to some of the pre BCRA ads in some cases, but in others, groups have learned that target marketing and other activities may be more effective than using the new WRTL loophole.

The WRTL decision, which also rests on the notion of corruption found in Buckley, also shows that this latter opinion lives yet another day. However, as I argued in my Buckley v. Valeo, Randall v. Sorrell, and the Future of Campaign Financing on the Roberts Court, 12 Nexus 153 (2007), this opinion is plastic and can be used to support or invalidate campaign finance regulations such as Section 203. The Roberts Court will swear fidelity to Buckley but perhaps use it to hollow out the decision.

Finally, the real import of the WRTL decision is not in terms of it changing CFR rules so much for now but perhaps in showing further incremental reforms are dead, regardless of how small they are.

-David Schultz
Senior Fellow, Institute for Law and Politics
Professor, Hamline University, Graduate School of Management
http://davidschultz.efoliomn2.com

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Confirmation of von Spakovsky?

I just posted this as a comment to my original von Spakovsky post, but then realized that it would be an interesting post in its own right:

Ken Vogel of the Politico emailed me on Monday to tell me that he "talked to several folks close to the Senate Rules Committee and its members and most predicted von Spakovsky – and all the FEC nominees – would be confirmed."

He then emailed me back today to let me know that he's now a lot less sure of Mr. von Spakovsky's chances of confirmation.

This will be an interesting vote indeed.

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Democrats may block controversial FEC appointment

Next week the U.S. Senate will consider the nomination of Hans von Spakovsky for membership on the Federal Election Commission. Mr. von Spakovsky is a former DOJ Civil Rights Division attorney who has been implicated in the voting rights/voter fraud controversy which last week wrapped in his former boss, Bradley Schlozman.

Both the Politico and the Washington Post have coverage of the von Spakovsky hearings.

From the Post:

"Voting rights activists and campaign finance watchdogs are urging lawmakers to take a stand against von Spakovsky's nomination. "He failed to understand his role was not to be a representative of the Republican Party," said Joseph Rich, a former voting section chief who worked under von Spakovsky, who was then counsel to the assistant attorney general for civil rights."

Looks like the DOJ is in for more scrutiny of its practices related to the politicization of election law.

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Further fallout on the Democrats lobbying reform package

Earlier this week we discussed the lobbying reform bill that Congressional Democrats introduced.

The bill was a watered-down version of the reform package that Democrats campaigned on around the country last year.

Now, Politico and The Hill have pieces describing both further weakening of the bill through amendment, and negative reactions to any reform from the special interests that fund the Democratic Party.

Do political parties in power even have the ability to create structural reform anymore, or have reform proposals been entirely relegated to campaign tactics without any intention of implementation?

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House to consider lobbying reforms

Five months into the new Congress, House Democrats are finally starting to deal with one of their primary election promises: lobbying reform.

Based on the Washington Post coverage, it seems quite possible that a final bill might not have much reform in it at all:

"Sponsors and watchdogs had hoped the House lobbying reform bill would go further than the Senate's version, passed with great fanfare in the opening days of the new Congress. Instead, it appears to closely track the Senate bill, which also did not include restrictions on grass-roots lobbying. In recent weeks, according to several people close to the talks, the Senate had been pushing the House to narrow the bundling restrictions in its version, by limiting reporting requirements to clearly defined fundraising agreements between lobbyists and members. The House bill as discussed would do that.

"Passage of a weaker bill -- chiefly, one without bundling rules -- would disappoint watchdogs, who have waged a lobbying campaign of their own for the new law."

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Can an FEC in transition fairly enforce campaign finance laws?

The Boston Globe has a story about the potential politicization of vacancies and appointments to the Federal Election Commission (FEC).

At the moment, none of the six FEC commissioners are serving confirmed current terms. (One vacancy, three unconfirmed, two waiting to be replaced).

In the contentious election season coming upon us, how can the FEC enforce campaign finance laws without seeming to play political favorites?

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New report details the role of money in Minnesota's 2006 elections

David Schultz, a Senior Fellow at the Institute for Law and Politics, has just sent out the following press release:

---------------------------------------------------------

For immediate release

May 2, 2007

Contact:
David Schultz
651.523.2858/
651.292.1096
dschultz@hamline.edu

Special Interest Money in 06 Elections Influences 07 Legislative Session
New report documents role of money in Minnesota politics

Political contributions to state candidates in the 2006
elections were dominated by special interests according to a new study
released on Wednesday.

David Schultz, a Professor in the Graduate School at Hamline
University in St. Paul released a report on Wednesday detailing the
role of money in the 2006 Minnesota elections. The report, the “Price
of Admission 2006: Political Money Trends in Minnesota,” is the
annual study Schultz has done on money and politics in Minnesota
since 2000.

“The biggest news in the study is threefold,” according to
Schultz. “First, special interests—PACS, lobbyists, and large
individual donors—dominated the 2006 elections and destroyed the
public finance system. Second, the cash advantage Minnesota DFLers
had over the Republican Party was important to the Democrats’ victory
in 06. Finally, special interest contributions to the legislature and
the governor are affecting the 2007 legislative session.”

According to the study, over $132 million was spent by
candidates, the parties and legislative caucuses, and other political
associations in 2006 to influence the elections or policy-making at
the state capitol. In addition, over 70% of the nearly $50 million
donated to state office candidates, the parties, and the caucuses in
2006 came from PACS, lobbyists, and large donors. “There is no
question that Minnesota’s campaign finance system is broken,” said
Schultz. “If the goal of the 1994 reforms was to limit the role of
these three types of contributors, then the law has now failed. Over
80% of the money donated to the four legislative caucuses is from
these sources, over 75% of the money donated to Governor Pawlenty is
from them, and over 60% of the donations to legislative candidates
also came from PACs, lobbyists, and big donors.”

In addition, the study also revealed that the DFL party,
caucuses, and candidates enjoyed a significant cash advantage over the
Republicans. “Democrats dominated Republicans in terms of hard and
soft money contributions and they had a huge advantage in terms of
independent expenditures. These advantages played out on election
day. For example, DFLers received 56% of all the contributions to
legislative candidates in 2006, they then received 55% of the vote on
election day, and were able to then take 65% of all the House and
Senate seats. Money definitely helped them do as well as they did
last year and it allowed them to turn a good year [for Democrats
nationally] into a great one for them in Minnesota.”

The only place where DFLers did not enjoy a cash advantage was
in the governor’s race. Schultz noted how contributions to Tim
Pawlenty were double of that to Mike Hatch. Quoting the report:
“Pawlenty’s victory should not be viewed as a victory for him so
much as a victory for the money he had and an ability to exploit
Hatch’s weaknesses.”

The Report concludes by arguing that the 2007 legislative
session is taking place under the influence of an election where
special interest money picked the House, Senate, and governor. “It
amazes me that the public interest can be done at all when so much
money by special interests is being thrown at our state
officials,”said Schultz.

A complete copy of the report may be found at:
http://davidschultz.efoliomn2.com/index.asp by clicking on “Money in Minnesota Politics” on the left side of the page.

* * *

David Schultz is Hamline University Professor in the Graduate School
of Management where he teaches classes in government ethics and public
policy. He is also a professor at the University of Minnesota Law
School where he teaches election law, and the author of numerous books
and articles on money and politics, campaign finance reform, and the
media and politics.

-33-

Supreme Court oral arguments available for WRTL v. FEC campaign finance case

The Supreme Court has released the oral argument transcript from the campaign finance case we mentioned earlier today.

The transcript is available in PDF here.

WRTL v. FEC, McCain-Feingold case before the Supreme Court today

A big day in campaign finance law. The Supreme Court hears arguments in the Wisconsin Right to Life v. Federal Election Commission case regarding issue ad limitations in the McCain-Feingold, Bipartisan Campaign Reform Act (BCRA) legislation.

ElectionLawBlog has more coverage here.

How do you think the Court should decide this one and what ramifications might that decision have?

More on the booming business of staffing political campaigns

Yesterday we noted the growing employment market for campaign staffers.

Today the Washington Post reports on the huge contracts going to campaign consultants.

Speaking of campaign spending, Colbert discusses John Edwards' $400 haircuts:

April 17, 2007 Law and Politics Blog Roundup - Tax Day Edition

The belated-tax-day edition of the law and politics blog roundup:

The Washington Post has a rundown of 2008 Presidential campaign Q1 fundraising numbers.

Related to that, the New York Times has a cool interactive map detailing the geographic sources of candidate money.

The House Judiciary committee is considering offering Monica Goodling immunity to disclose what she knows about the U.S. Attorney investigation.

The Star Tribune also notes that the House Judiciary Committee has requested testimony from Minnesota U.S. Attorney Rachel Paulose.

Minnesota's Fifth District Representative Keith Ellison is a member of that committee.

Mike Ciresi is expected to announce his candidacy for the U.S. Senate in Minnesota tomorrow.  Here's a refresher from 2000:

April 10, 2007 Law and Politics Blog Roundup

Today begins a regular review of some of the more interesting law and politics blog postings and news items of the past day.

Washington Post: Maryland Governor O'Malley signed into law a bill that would bypass the electoral college in that state.

ElectionLawBlog reports on the new organization, Unity08, which is recruiting third party presidential candidates.

ElectionLawBlog also notes an analysis of the effectiveness of McCain-Feingold (aka BCRA).

Another ElectionLawBlog report on the predicted role of soft money in the 2008 election cycle.

Volokh is analyzing some of the ramifications of the renewed debate over an Equal Rights Amendment.

The Economist's blog has a note about the ramifications for those calling for an impeachment of President Bush.  Think: President Cheney.

According to Newsweek, Barack Obama is getting substantial assistance from former Senate Majority Leader Tom Daschle.

PoliticsTV notes an MSNBC report showing GOP national party registration down from 43% in 2002 to 35% in 2007, which Democratic registration is up from 43% to 50% in the same period.

The Politico has an article reviewing campaign strategy changes in the presidential campaigns.

Please let me know if you have any suggestions for modifying this review.  Also, please feel free to send me interesting stuff you think should be included.