The Lonely Centrist

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Friday, August 19, 2005

It's a Sham! An Outrage! It's a Shmoutrage!

Our old friend Fred Wertheimer, the most naive man in America, is outraged today. (I think I should pre-program this line into my word processor.)

What has Fred's knickers knotted up is yesterday's conclusion by the Federal Election Commission that a ballot initiative - in this case the California redistricting measure Governor Ahnuld has placed on the ballot - is not an "election" for purposes of federal campaign finance law, and thus federal officeholders are free to raise money in accordance with state law to support one side or the other.

Quick background - the main effect of the initiative would be to change the way that legislative district lines are drawn. Under the proposal, they would be drawn by a commission of retired judges, rather than by the legislature (as they are now). Naturally, legislators oppose this vehemently, which is why Governor Schwarzenegger is trying to pass it by ballot initiative. For what it's worth, if I had to vote I'd probably come down on the Governor's side, though I'm skeptical that you really can, or necessarily want to, take politics out of redistricting.

Anyway, Wertheimer wanted to force federal lawmakers to only raise money in accordance with Federal law. The result would have been that Governor Schwarzenegger, not being a federal officeholder, could solicit $100,000 contributions, including corporate contributions, to support the initiative, but federal congressmen - who certainly have much at stake - could not ask individual donors, and no corporations, for more than $2200 to oppose it. The Commission held that a ballot initiative is not an "election" under federal law, and thus the federal fundraising rules don't apply.

Now, you might think that obviously a ballot initiative is an "election." But remember that the alleged purpose of the Federal Election Campaign Act is to prevent buying of votes through campaign contributions. It's hard to see how anyone is buying legislative votes here - the people will vote, not the legislature, let alone the Feds. And it's hard to see how a state law ballot measure, in an election in which no federal candidates are even on the ballot, is governed by federal law. In fact, for many years, since well before McCain-Feingold, the Federal Election Commission has defined "election" as "the process by which individuals, whether opposed or unopposed, seek nomination for election, or election, to Federal office." 11 C.F.R. 100.2(a). Pretty hard to see how a state ballot initiative fits in under that law, even if we take out the word "Federal." The Federal Election Campaign Act, being concerned with candidates, has always limited the term "election" to a candidate election, and so in this case were just following a longstanding law.

But our naive friend Fred is apopolectic. Fred is really upset because some members of congress actually called Commissioners to lobby them on the issue. All of the FEC Commissioners who received calls from members of Congress publicly disclosed those calls, and Fred notes that, "Under FEC rules ex parte communications are legal," but he is outraged nonetheless. "What we have seen today is the FEC functioning as a complete tool of congressional incumbents to allow huge corrupting contributions to be raised by Members of Congress, and doing so by ignoring the clear meaning of the law."

Question for Fred: Congressional incumbents passed the law. So if the FEC is doing what the congressional incumbents want, isn't it applying congressional intent? And how can Fred be so naive as to think that congressional intent would not be favorable to congressional incumbents?

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