Sotomayor Fails To Impress In Campaign Finance Challenge

In the first case argued by Solicitor General Elena Kagan, before a Supreme Court bench containing Sonia Sotomayor for the first time, both failed to impress. Kagan, representing the government, had the job of defending the federal laws that prohibit corporations and labor unions from funding their own campaign ads. The law was being challenged by a private corporation, Citizens United, that produced a movie about Hillary Clinton during the presidential primary season last year.

Justice Sotomayor expressed some concern that if the Court decided to strike down the law, that that would cut off the democratic process, preventing the federal government and states from experimenting with different regulator regimes. Her question is one that applies to any Supreme Court decision that applies constitutional rights, and Floyd Abrams, attorney for Senator Mitch McConnell (R-Ky.), easily responded that the First Amendment trumped those kinds of concerns.

Lawyers for Citizens United argued that there was no real difference between a corporation and an individual: both have First Amendment rights to speech, especially political speech, that the government cannot restrict unless it can show it has a compelling reason. The government was in an awkward position: in addition to having to backpedal from the March 24 Court session in which the government argued it could ban books if it wanted to, Solicitor General Kagan urged the Court not overturn the 1990 precedent of Austin v. Michigan Chamber of Commerce by offering a different rationale the Court could have used in that case but didn’t.

Kagan’s arguments generally fell flat, with the support for the campaign finance laws coming from Justices Stevens, Ginsberg, and Breyer, each giving his own reasons. Justice Sotomayor, only asking a couple of questions, seemed to support the laws for practical reasons, suggesting that the lower courts should reexamine this issue more before the Supreme Court decides.

Justices Roberts, Scalia, Kennedy, and Alito pushed the regulation’s advocates pointing out that the law bars any corporation from paying for ads, even small businesses completely owned by a single person. Kagan could respond only by pointing out the FEC has never gone after a small business for making an ad, prompting Justice Scalia to retort, “We don’t put our First Amendment rights in the hands of FEC bureaucrats.”

Justice Thomas, as usual, asked no questions. In the past he has been the Court’s harshest critic of campaign finance laws like these.

The Supreme Court is in recess until October 5, at which time its decision will likely be announced.

Obama and McCain's record-breaking campaign finances

A discussion at the Brookings Institute focused on campaign effects of the money, ads and mobilization of the 2008 presidential election.

Both campaigns broke records and raised a combined total of $1 billion, said Anthony Corrado, a fellow at the Brookings Institute. While McCain's campaign was well-funded, it was dwarfed by Obama's campaign, which raised more money than John Kerry's and George Bush's 2004 presidential campaigns combined.

In order to compete with Obama, McCain had to rely heavily on the Republican party to run advertisements, said Corrado. Thus, McCain had less control over the messages of the ad. Overall the Republican ads took a negative tone and also attacked other Democrats running for office, making them appear more partisan than Obama's ads.

The overall increase in campaign financing and the huge advantage that Barack Obama has isn't troubling to political scientists, said Larry Bartels, director of the Center for the Study of Democratic Politics. "To put [it] into historical comparison," said Bartles, "if you go back to before the reforms 1970s, it was quite common for Republican presidential candidates to have two-to-one funding advantages over their Democratic opponents...to gauge the effect of that on the election outcomes, it looks like that contributed something like three percentage points to the average Republican vote margin."

McCain campaign could face millions in fines

The Democratic National Committee (DNC) General Counsel Joe Sandler hosted a teleconference today to discuss his request that the Federal Election Commission (FEC) put off a vote on whether to release Sen. John McCain from the federal matching funds program. The DNC filed an administrative complaint regarding what they call McCain’s unilateral decision to withdraw from the program without filing a request form with the FEC. If the Arizona senator were found to to be in violation of the law, Sandler says the McCain campaign could face a fine of millions of dollars.

According to federal campaign finance law, candidates may participate in a program in which the federal government matches donations from private campaign contributors. In return the candidates agree to limit their spending according to a statutory formula. However, they can opt out of this program, releasing them from the spending limit, as both John McCain and Barack Obama have done.

A representative of the DNC said that the Committee is asking the FEC to change its agenda tomorrow, instead pursuing a full investigation into McCain’s withdrawal. Sandler said that the appropriate course of action, should it be found that McCain violated the law, is to make the information public in time for the election in addition to administering appropriate financial penalties. He went on to say that if McCain is found to be in violation of the law, he could face penalties amounting to tens of millions of dollars the senator has spent over the $57 million limit since his unilateral withdrawal.

Sandler said he feels that because this is a high-profile matter, the FEC can conduct a swift investigation and issue a ruling before November.

The most political period begins

Rick Davis the campaign manager for John McCain said that they are looking at a pretty even race, especially state by state in the targeted states. "We are entering one of the most political periods of the whole race," he said noting that the conventions, debates, and the vice presidential nods will happen in the next 10 weeks. Davis also said that they are gaining ground with the Republican base. "We are also very competitive with independent voters and we're doing well with disaffected democrats that don't support Obama."

"We've constantly got to pay attention to the need to excite the base," Davis said "It's a party that we have to rebuild and win an election in the process."

Davis said that the campaign continues to have record fundraising making it five months in a row for records. In July the campaign had and income $26 million with about 600,000 donors. Totaled with RNC donors there are 1.5 million donors to the campaign. Because Mccain is seeking to use public financing in his campaign they will have to stop fundraising in primary account and exhaust those funds by Aug 30. In July the campaign had 2.4 million cash on hand which Davis said they will use to prosecute the campaign in August. "We'll have a good august," he said. He explained that the campaign will start the general election full with government and RNC funding. They plan to spend down the primary account in more media buys as well as building up ground operations in states where the Obama campaign is presenting a challenge. So far the McCain campaign has spent $60 million on media buys.

The advertising done during Obama's trip to the Middle East and Europe gave the Mccain campaign an uptick in Internet fundraising thanks to high hits on the video of the ad on YouTube.

Notes on DNC Conference call on FEC complaint about John McCain

Intro by Karen Finney

Howard Dean, DNC Chairman
Joe Sandler, DNC General Counsel

FEC complaint to be filed tomorrow

Dean:
Tomorrow DNC will be filing complaint with FEC asking for investigation into McCain campaign. He cannot unilaterally withdraw from spending commitment.

He can't get out of matching funds agreement after using promise as collateral on loan. He has "material gain" from his fund.

When Dean got out of the program, he had an FEC vote to get out, and also he spent money to get on ballots, while McCain has gotten free ballot access as part of program.

Joe Sandler:
In letter this week, FEC commissioner said that McCain can't back out after he's written a letter to FEC saying he wanted to be in the program, and the FEC has taken a vote on McCain's eligibility. That was not the case with Dean and with Kerry, who pulled out before being certified by the FEC as being eligible. McCain is in the same situation as Gephardt was in 2003, and then the FEC said he couldn't get out without FEC consent.

And even if the FEC had a quorum and could vote, McCain can't get out after having used his participation in the program as collateral for a loan.

So McCain still subject to limitations, including spending limit. Based on how much spending he reported as of end of January, he has likely already violated, or is about to violate, that spending limit.

Dean:
So three violations: 1. Material benefit in free ballot access. 2. Material benefit in using as loan collateral. 3. (likely) spending limit violation.
McCain is not a reformer; he passes changes to benefit himself.

Question:
What kind of sanctions are you looking for? How can the commission act without a quorum?

Sandler:
They can begin to process the complaint without quorum. We hope there are no sanctions imposed, because we hope McCain will comply with the law. If he doesn't, potentially civil and criminal penalties.

Question:
Have you approached watchdog groups to ask them to join in complaint?

Dean:
Don't think so.

Sandler:
Those groups are non-partisan, so they wouldn't join a party in a complaint. They might call on McCain to follow the rules, though.

Question:
Dean's opinion on 527 groups active on Clinton and Obama sides?

Dean:
I haven't followed that.

Question:
Any chance of reaching out to RNC to together speak out against 527s?

Dean:
"I'm going to worry about the 527s at another time."
On McCain, "this is a major violation." This is "so Washington."

Question:
Said you want him to obey the law, but how can he go back in time and never apply for federal funding? So he can't spend another penny until he gets the nomination in September?

Dean:
I don't understand how someone with McCain's reputation can do this kind of thing. He says one thing and does another. "We want John McCain to obey the law with his own name on it."