After Brad Smith of the Center for Competitive Politics took to the pages of The Wall Street Journal to criticize the IRS’s proposed rules on tax-exempt political activity, Paul Ryan of the Campaign legal Center answered in a letter to the editor. Smith had complained about an agency "power grab" cheered on by anti-speech zealots on the left. Ryan's villain was the same—the IRS—but in this instance he depicted an agency struggling to its feet after years of “derelict” failure to police special interest misuse of the law.

Selling the American Anti-Corruption Act

December 5, 2013
posted by Bob Bauer

Consider this program to—

RESHAPE AMERICAN POLITICS

Represent.Us is not just building a movement in support of the [American Anti-Corruption] Act, we’re going to use our collective power to stand against those who stand for corruption. If it becomes law, the Act will completely reshape American politics and policy-making and give people a voice.

This is a bold claim that the sponsors of the American Anti-Corruption Act have made. Perhaps “bold” is the wrong word; “audacious” might be more accurate. The sponsors declare that the adoption of their proposal will “completely” reshape American politics and that it will be “completely transformative” in giving the people a voice in their government.

There is little left to be said about Judge Posner's second thoughts, and his further thoughts about those second thoughts, about his voter ID opinion in Crawford v. Marion County Election Board. No one seems satisfied with his various statements—neither critics or supporters of the "ID" movement, and certainly not the lawyers whom he seemed to fault for failing to fully inform the Court about the consequences of ID statutes like Indiana's. But the frustration directed at him should be tempered, just a little, by this fact: in suggesting that much legal argument before and by the courts is ill-informed about the political process—and thus about the consequences of regulation or deregulation—the Judge has a fair point. And it is a point that applies to legal decision-makers of all kinds—legislators and regulators, as well as judges.

Arizona and Its Conflicts Over Public Financing

October 28, 2013
posted by Bob Bauer
After one unsuccessful engagement with the Supreme Court, the State of Arizona continues to work through the implementation of its public financing laws. The issue remains, as before, how it can structure the law to draw candidates into the systems. One strategy it devised did not suit the Court: the state discovered that it could not provide offsetting public funding to participating candidates who faced well-heeled opponents and free-spending independent expenditure groups.
After critically examining Lawrence Lessig’s “dependence corruption” theory, Bruce Cain concludes with a few of his own suggestions. Bruce Cain, Is Dependence Corruption the Solution to America's Campaign Finance Problems? (May 19, 2013). Available at SSRN: http://ssrn.com/abstract=2267187. One of these is meant to address the disclosure issues he sees presented by 501(c)(4) advertising to influence elections. As he has done before, Cain explores the grounds for compromise between those committed to disclosure and those who are afraid, and spirited in expressing their fear, that it invites political harassment and reprisal. His proposal is for full reporting but “semi-disclosure”: regulators would collect the information, reserving its use for enforcement purposes, and would provide the public only with data in the aggregate that is useful in identifying in broad terms the sources of candidate support and, perhaps, future officeholder indebtedness. Bruce Cain, Shade from the Glare: The Case for Semi-Disclosure, Cato Unbound (Nov. 8, 2010), http://www.cato-unbound.org/2010/11/08/bruce-cain/shade-glare-case-semi-disclosure.