In the last two election cycles, in both major parties, presidential candidates and the press have argued over the timeliness and completeness of the release of personal tax returns.  This year, the disagreement has taken a new turn with the possibility that one of the candidates will not release his filings at all.  Editorialists have argued for compliance with the “norm” of disclosure that has been observed for decades.  John Wonderlich of the Sunlight Foundation questions why release is just a "norm" and not a legal requirement, and he argues for a new law.

That the release of taxes remains a norm and not more may be explained by a number of factors.  For elected officials, there's always the fear that there is no stopping point.  If Congress were to mandate the release of returns by presidential candidates, the question would naturally turn back on them--why they would not put themselves under the same obligation.  Gradually other elected officials might feel the same pressure, which could eventually also influence the judgment about whether the returns provided by senior government officials during the vetting process should also be subject to public disclosure.  To keep a norm a norm is to keep the underlying transparency expectation within limits and to leave issues of compliance to public debate and judgment.  It serves also to maintain a balance between exposure of this information some of the time, in a narrow set of circumstances, but only by public expectation and political choice, preserving the overall principle of privacy.

There may still come a tipping point when the norm is deemed insufficient and a legal requirement is put in its place.  It is hard to say when that point might be reached.

For all the study expended on public corruption and possible measures to control it, few take seriously or pay much attention to the “ethics” rules that Congress makes for itself.  Something interesting is going on here.  On the one hand, supporters of campaign finance reform are quick to defend Congress’ legislative handiwork over the years.  Defenders of McCain-Feingold deny that it was infected with incumbent self-interest.  Upholding the new law against constitutional challenge, the Court in McConnell v. FEC even situated it within a long history of Congressional steps to combat corruption, characterized as   “careful” and “cautious” and deserving of deference. 540 U.S. 93, 117 (2010)[citations omitted].  Yet when Members prescribe rules to govern their conduct in dealings with supporters or donors, the applause is thin and it is rare that legislators get even the benefit of the doubt.

It is possible that an important part of the story has been missed, or underplayed, and that the Supreme Court may have the opportunity to rectify, if only indirectly, the imbalance.

The argument over the constitutionality of the Arizona Independent Redistricting Commission can go the way of plain language debates, and it can also branch off into the question of whether it is good to have legislators function under the threat of initiative. A fine brief filed by Professor Nate Persily, on behalf of himself and eminent political scientists Bruce Cain and Bernard Grofman, takes on that question, among others, and answers it in the affirmative.

Under their theory, legislators who know that the public might act in their place may engage in constructive defensive maneuvers: they may make more of an effort to craft a redistricting map that is fair or not lopsidedly partisan. And even if the voters take this decision out of their hands, the lawmakers will be spared the bloody battles that are singularly damaging to legislators' working relationships across-the-board.

On this view, initiatives like the one in Arizona can be defended as effective in structuring incentives for sound legislative decision-making or in protecting against the collapse of comity. But they can also draw the objection that the effect of these incentives is uncertain and that this uncertainty exacerbates constitutional concerns about the invasion of a legislature’s authority.

Assessing Lobbying Reform in the Obama Administration

Presentation to the American University Conference on Lobbying Reform in the U.S. and the E.U.

March 17, 2014

In the fight over contribution limits, litigants argue over how much money, given by whom and in which ways, can push normal politics into corruption or the certainty of its appearance. McCutcheon tests the proposition that corruption can be a byproduct of the total volume of giving, not just how much a donor hands over to a specific candidate or political committee. McCutcheon v. Fed. Election Comm'n, No. 12-536 (S. Ct. docketed Nov. 1, 2012). Other cases bring the courts into the dispute over the relationship between corrupt potential and the size of the contribution, the tipping point at which the sum given exceeds what it is safe to allow. Nixon v. Shrink Missouri Government PAC, 528 U.S. 377 (2000). Threading its way through these arguments is the question of whether and how the identity of donors, such as political parties, should be weighed in the bargain. See e.g. Illinois Liberty PAC v. Madigan, Case:1:12-cv-05811 (N.D. Ill.).