Some campaigns have agreed to disclosure of their bundlers, the high-level fundraisers, and others are unwilling, unsure, or evasive on the subject.  Congress may force the issue in some measure, by enacting a provision approved by the Senate to compel registered lobbyists to report their fundraising, including the events they co-host and the contributions they “arrange.”  Now, in a piece by Roll Call, Craig L. McDonald, Director of Texans for Public Justice, questions whether this gets at the heart of the matter.   Non-lobbyists, especially major corporate executives, also “bundle” and McDonald believes that they and any other “bundler,” not just lobbyists, should be included within any new reporting requirement. 

      McDonald’s view raises the question, again:  what is a best practice, something to be expected from campaigns, and what is suitably committed to the legal process?  What is desirable is not necessarily fit matter for legal regulation.  McDonald’s proposal illustrates the point.

      The disclosure of bundling as a legal requirement presents technical challenges with implications for rights of speech and association.  Bundling is no longer a well defined term.  Once, when it meant only the physical collection and transmittal of checks, it referred to a very specific activity.  Now it more amorphously includes any apparent success in persuading others to give to candidate, and the success may consist entirely of persuasion.  It relates that persuasive success to the credit the fundraiser can expect from candidate.  McDonald uses, among other terms, the word “orchestrate”; the Senate bill includes the word “arrange.”

      While the Senate employs broad language in reaching this activity, it introduces some limitations by narrowing the class of affected fundraisers subject to the disclosure requirements.  In this class is the registered lobbyist and “registrant” within the terms of the Lobbying Disclosure Act, and any affiliated political committees.  McDonald would dispense with this limitation.  He proposes that the law follow “clout” wherever, by virtue of fundraising, it is accumulated.

      Clout, fundraising clout, comes in many forms.  For example, entertainers and other celebrities possess, market and use it.  Their names and appearances figure in major fundraising initiatives.  Without question, the celebrities willing to support these ventures can expect to have much “clout”:  returned phone calls and instant access.  Many also have policy and legislative interests, passionate ones.  In performing for nothing, they do not, in fact, do this for nothing.  As much as these entertainers and celebrities raise, there is neither systematic dislcosure of what they raise, arrange or orchestrate, nor demand for it.

      Events “co-hosted,” by contrast, may involve little more than a name lent to an invitation or a home (and name) made available for an event that is put together, to the last detail, by others.  How much “clout” would this form of sponsorship earn for the sponsor?  We could expect that if the mandatory bundling disclosure provisions ranged beyond the class of lobbyists, the universe of “co-hosts,” some of them affable volunteers and supporters of the candidates, would contract dramatically.

      Limiting the disclosure requirements to the class of lobbyists is a sensible measure in protecting against a law without boundaries that would tend, inevitably, to excess.  Disclosure is all to the good, so long as it is disclosure for a well-defined purpose, shaped with some concern for avoiding heavy burdens on ordinary-course political activity.  The Senate bill at least aims for some reasonable definition.  

      In the meantime, Presidential campaigns are responding to calls for more disclosure by providing it, as a “best practice.”  This voluntarism is a better choice than more restrictive laws that may be more universal in application, but that will turn on indeterminate standards and quickly lapse into unpredictable, inconsistent, and boundless enforcement threatening to the exercise of core rights. 

Bob Bauer