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WANG: When campaign finance laws are just regulatory overkill

Sniffing out corruption can go overboard

- - Saturday, February 23, 2013

Prominently displayed in the front window of the offices of the Federal Election Commission (FEC) is Justice Louis Brandeis’ famous maxim, “Sunlight is said to be the best of disinfectants.” For campaign finance regulators, a corollary to this mantra is an even older proverb: “Show me your friends and I’ll tell you who you are.” The idea is that, if we have better public reporting of campaign donors, not only will politicians be less likely to grant special favors to their contributors, but voters will have a better sense of the politicians’ values by virtue of who their “friends” (read: contributors) are.

While these principles may facilitate exposing corruption, they also can help illustrate regulatory overkill. Take, for example, two recent campaign finance matters in which we looked at the politicians’ friends and discovered, in one case, the candidate’s mother, and in another case, a fellow congressman.

During the August 2012 Democratic primary in Washington State’s First Congressional District, Laura Ruderman was being outspent by her opponent, Suzan DelBene. To level the playing field, Ms. Ruderman’s mother stepped in and poured $355,000 into a super PAC supporting her daughter, which then sent out mailers attacking Ms. DelBene. This maternal participation in the political sandbox upset one of Ms. DelBene’s supporters, who complained to the playground police. The FEC complaint alleged that Ms. Ruderman’s campaign was illegally coordinating with the super PAC due to the mother’s substantial support and control of the PAC. (By law, super PACs may not coordinate with candidates on messaging and strategy.)

Proving the time-tested lesson that money doesn’t buy elections, Ms. Ruderman lost badly in the primary, and Ms. DelBene is now a freshman in Congress. Providing some quantum of solace to Ms. Ruderman, the FEC’s professional staff recommended against finding a violation, since the agency’s rules are not so bold as to prohibit maternal love. This did not stop the FEC’s Democratic commissioners, however, from voting to open an investigation (which the agency’s Republicans thwarted). In a statement released last week, the Democrats reasoned that, due to the familial relationship, it was inconceivable that mother and daughter wouldn’t have talked to each other about the campaign.

Technically, the Democrats cited and applied the correct coordination regulations to support their reasoning. However, never once did they cite or apply the larger constitutional framework. In this context, the only valid justification the Supreme Court has upheld for regulating campaign spending is the “prevention of corruption or the appearance of corruption.” Wise guys may say that a mother’s encouragement of her daughter to enter the world’s second-oldest profession is, in itself, a moral corruption of sorts. But that’s not what the court meant by corruption.

In this case, had Ms. Ruderman been elected to Congress, do we really think she would use her office to benefit her mother because of her mother’s campaign spending? Or would she help her mother simply because it’s her mother? If members of Congress are driven to corruption by their parents’ campaign contributions rather than their family ties, we probably should be concerned more about their family values.

Here’s another example of making a regulatory mountain out of a campaign molehill: During the Republican primary last March in Illinois’ 16th Congressional District, Republican Rep. Aaron Schock solicited $25,000 from the leadership PAC of his colleague, Majority Leader Eric Cantor, for a super PAC supporting Republican Rep. Adam Kinzinger. The only problem was, under the McCain-Feingold campaign finance “reform” law, which was written before the advent of super PACs, lawmakers are limited to raising only $5,000 for PACs. The House Ethics Committee recently announced that its investigation of this matter is ongoing.

Again, we must ask, where is the corruption here? The McCain-Feingold limit was based on the premise that, once politicians solicit and accept contributions past a certain point, the amounts become so large that they entice the politicians to unduly benefit the contributors’ private interests. Whether or not this is true in general, it does not make sense when politicians are raising money from each other. If Eric Cantor really wanted to control Aaron Shock, as majority leader, he has many other ways of doing so.

Many politicians have wayward relatives. Roger Clinton’s cocaine conviction caused headaches for his older half-brother. Patrick Moran tried to stuff the ballot box for his father, Democratic Rep. Jim Moran of Virginia. Every member of Congress must know at least one ethically challenged colleague. Yet campaign finance laws, because they do little to protect us from these dangers, are a poor vehicle for regulating familial and collegial relations.

Eric Wang is a political law attorney and former counsel to a commissioner at the Federal Election Commission.