Posted September 28, 2006 by J. Gerald Hebert

Some Answers for Mr. Bauer

Bob Bauer responds to my op-ed piece in today’s Roll Call with his usual amount of care and insightfulness. We are not going to agree ultimately on this issue, but thankfully, we agree on a number of other subjects (outside the realm of campaign finance reform). A couple of points I want to make in reply, because I think he leaves some misimpressions:

In response to my claim of impropriety that FEC Chairman Toner and Mr. Bauer would write an op-ed piece together on a issue that continues to percolate at the Commission (and one which Messrs. Toner and Bauer hope to have the FEC re-visit), Mr. Bauer writes that “it cannot escape notice that [Mr. Toner’s] outspokenness never troubled the reform community when it was practiced on their behalf. In recent years, Chairman Toner has associated himself with the reform community on two major issues: ‘reform’ of the presidential public financing system and the regulation of 527s. He has been invited to their conferences, where he lent his authority as a regulator to their causes.’”

Response: the two conferences cited by Mr. Bauer involve a matter that has not been pending before the Commission in recent memory: the presidential public financing system. It is certainly appropriate for FEC Commissioners to attend such a conference where the issue has never been pending before them and is not expected to come up in the foreseeable future. Just like it is permissible for a judge to attend a judicial conference and listen to a presentation about an issue in the law, it would be inappropriate for the judge to participate in a conference where a pending case is being discussed. And it would certainly be inappropriate for the judge to co-author an op-ed with one of the litigants in a case she just decided and the judge and litigant were both on the losing end.

Mr. Bauer makes much of the fact that the reform community was silent when Mr. Toner wrote an op-ed piece about regulating 527 organizations. Mr. Bauer insinuates the reform community was silent because it agreed with Mr. Toner on the issue.

Response: First, in his piece on 527’s, Mr. Toner wrote it alone and did not co-author his article with one of the attorneys representing a 527 organization. Moreover, Mr. Toner’s 527 piece was more a call for the FEC to act rather than debating the merits of why 527’s should be regulated like other political committees. The former seems perfectly acceptable whereas the latter seems improper.

Mr. Bauer observes that the FEC has already ruled on the issue that he and Chairman Toner wrote about: carving out a giant loophole in the electioneering communications provisions of BCRA. On this score, Mr. Bauer writes: “The FEC has published this decision in the Federal Register; it is there for Mr. Hebert to inspect, and if he attended the Commission meeting, he would have heard the controlling bloc of Commissioners state clearly that the matter was closed: that these Commissioners would not return to this issue unless the Courts left them no choice by holding for complainants seeking this exemption, on constitutional grounds, in pending litigation.”

Response: The matter is pending in two courts in DC (Christian Civic League of Maine v. FEC and Wisconsin Right to Life v. FEC). So it is possible that the FEC may have to return to this issue depending on the ultimate disposition of those cases. In any event, Mr. Bauer neglects to mention that he was the main advocate for the blanket so-called “grassroots lobbying” exemption before the FEC that is being sought by attorney Jim Bopp in the pending Maine and Wisconsin cases. There seems to be little doubt that if the matter ends up back in the lap of the FEC Commissioners again, Mr. Bauer will once again urging the Commissioners to issue it and his co-author will be one of the judges on that issue. How can this eventuality not be seen by Mr. Bauer as posing a problem?

Mr. Bauer takes issue with my criticism that the Toner-Bauer piece uses the misleading term pre-election “ban” or “blackout period” to describe BCRA’s electioneering communications provision (and my insistence that critics employ such terms in order to foster the false notion that that corporations are being denied the right to speak out on issues).

Response. Mr. Bauer is forced to concede that such ads could be run by corporations during the period before an election using PAC money. That hardly strikes me (or most others) as the blanket ban or blackout period he decries. But he then makes the claim that “This is all well and good for those organizations with a PAC, or the legal right to establish one, or with sufficient funds in the PAC that they happen to have; but for others, whose only effective recourse is the use of treasury funds, there is no way around their problem.” Of course there’s a way around the problem for those corporations that lack a PAC: Don’t include the name of the candidate in your ad! And if the corporation has a PAC but lacks the funds in it, that’s because the corporation chose not to raise money into their PAC so they could run ads. In other words, it’s all within their control. Again, this hardly strikes me as the type of First Amendment ban that is being portrayed by BCRA critics like Mr. Bauer and Chairman Toner.

Mr. Bauer states “My progressive politics is not morally inferior to his.”

Response. I agree. I make no moral judgments about Bob Bauer’s politics or anyone else’s.

Mr. Bauer notes that he and campaign finance lawyer Jan Baran have written that they would gladly host lunch for two of their critics: my colleagues Trevor Potter and Fred Wertheimer. Mr. Bauer graciously renews the offer to me, explaining in the process that I am “a gourmet with an excellent taste in wine whose case—and apparently irritable frame of mind—could only improve with a good meal.”

Response: I gladly accept the kind invitation and hope Commissioner Toner will join us. In the words of Virginia Woolf: “One cannot think well, love well, sleep well, if one has not dined well.”