Lee Goodman: Checks and limits
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As the Nov. 8 election approaches and accusations of unfairness fill the air, it’s appropriate to review the basics. Lee Goodman is a Republican member of the Federal Election Commission and a supporter of the 2010 Supreme Court’s 5-4 Citizens United decision, which held that the First Amendment prohibits the government from restricting independent political expenditures.
You were a defensive back on your high-school football team. Was that good preparation for being a Federal Election Commissioner? The other side is always trying to take away your First Amendment rights, and you’re constantly defending the Constitution.
Why do we have an FEC? Congress created it in 1975 to be a clearinghouse and enforcement agency, to make sure everyone who ran for public office at the federal level filed disclosure reports showing all money into their campaigns and all expenditures out.
Is it good to have an FEC? It is. I support the disclosure mission of the Federal Election Commission.
What about limits on campaign contributions? The limits are severe, and I would support at least raising them to $5,000 per election. Right now, the limit if you’re running for Congress or Senate is $2,700 per election. That is a fairly arbitrary line, but there’s nothing inherently evil about a larger contribution. I’m prepared to live within the regime we have, but think we could raise the limit without exposing ourselves to any greater potential for corruption.
‘We are the umpires of the baseball game.’
Those are limits on money given directly to a candidate, but the political action committees and super PACs don’t have limits. Double standard? We have a two-tiered system: Money going directly to candidates is deemed potentially corruptive. Money spent by organizations and individuals to fund their own independent speech is deemed less corruptive, because there is no negotiation point between the candidate and the spender. There’s not supposed to be coordination between the candidate and the independent spender, but the problem comes in defining what is coordinated activity and what is not.
Say a candidate doesn’t tell an independent spender he’d like a million dollars to spend on Second Amendment billboards, but he tells a reporter who writes that in a story, and the independent spender reads the article and buys billboards. Would that be coordination? No, because it’s in the public domain.
Since it’s so easy to coordinate in that way without directly coordinating, is the double standard so porous that it’s going to go? You’ve asked a pretty profound question there.
Once in a while I might do that. Legal scholars are asking: Why do we have to go through this dance of forcing people to spend their money through independent organizations when everyone can speak to each other through public fora? People question whether or not we should get rid of contribution limits altogether, quit the contortion of independent super PACs, and allow that money to be brought into those campaigns directly, fully disclosed. Voters can hold the candidates accountable for the positions they take, and who may be calling their tune. I’m not advocating that today, but it does put pressure on the whole system of contribution limits, no doubt.
So a billionaire could spend hundreds of millions of his own money, but if an opponent had a billionaire brother, the brother could not? Family members are subject to the same contribution limit as anybody else. I wince a bit at that notion, that somehow your spouse who may be wealthier than you, or your brother, is going to corrupt you. But the Supreme Court has said it applies to everybody.
That wealthy individuals have an advantage in the political process, and can spend unlimited amounts of their own money, and take advantage of people who do not have large personal wealth, calls into question the contribution limits as well.
Some of the Patrick Henry College students here may know the FEC is a rare commission in Washington: Most have odd numbers to avoid ties, but the FEC has six commissioners, and not more than three can be from any particular party. Why did Congress set it up that way? Because we are the umpires of the baseball game, and Congress wanted to give neither team the right to set up all of the rules of the game and call all of the balls and strikes. We do reach a majority vote in 86 percent of the substantive votes we take.
The FEC does seem to have been contentious recently. Your former chairwoman, Ann Ravel, called the commission dysfunctional and compared its effectiveness to men’s nipples. What did she mean by that? I cannot speak to precisely what our chair meant. We debate big, weighty, profound issues, and perhaps people take a tack in debates that is perhaps less dignified, or not perhaps at a higher plane that I prefer in discussing them.
Having an even number can lead to full employment for lawyers. It’s good for treasurers and accountants and lawyers, absolutely. Many lawyers in Washington, D.C., would joke that the Bipartisan Campaign Reform Act of 2002—also known as the McCain-Feingold Act—was nicknamed the Election Lawyers Relief Act, because it kept more lawyers employed, engaging in compliance advice. So, nobody in their right mind engages in political activity today without employing a lawyer.
That’s costly. If you have a finite amount of resource to spend on your mission or your cause, and you have to divert some of that to legal compliance, it is a drag on your exercise of your First Amendment rights.
Publications are exempt from FEC scrutiny, right? If you are a bona fide press entity disseminating news and editorial comment to people and publishing regularly, you are exempt from our regulatory regime altogether. Large, well-funded press organizations like The New York Times have been editorializing about candidates since the 1970s, and no one questions those large corporate expenditures.
With the rise of new media, should we expect attempts to regulate websites and blogs? Those who want to keep the harnesses of regulation on the American people view the press exemption and the rise of new media as a bit like holding a wolf by the ears. In the late 1990s, the Federal Election Commission issued an advisory opinion to a man who created a website, saying he needed to account for the cost of his computer, his software, his monthly internet connection charge, and a web hosting cost, and attribute a cost to all of those as a regulated expenditure. By 2006 the commission realized how unrealistic that was and adopted a regulation that exempted all free posting on the internet. The only thing we regulate on the internet today is a paid advertisement.
Is everyone happy with that? Some who want to regulate more have sought to reopen the 2006 rule-making. I have steadfastly opposed that.
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