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New on American Prospect online: The Legend of the Powell Memo

I've been interested in the history of the American right for a long time, both its institutions and its ideas. One of my convictions, reflected in my comments on David Brooks's "in disunity there is success" column a few weeks ago, is that we on the left often think that the right's ideas and institutions are much more tightly coordinated, planned and unitary than they really are. And for those who hold the structural view -- that is, that the left can achieve comparable political success by emulating the organizations and tactics of the right -- this leads to a misconception that our own structures must be similarly planned and coordinated. One downside of that is that there is a lot of paralysis as we wait for the planning and coordination to emerge.

One aspect of the way we now tell the story of the Rise of the Right concerns the memo that was written by future Supreme Court Justice Lewis F. Powell in 1971. In very recent years, this long neglected memo has this become a central feature of the story, and I became curious about how and why it was rediscovered, and whether it is accurate to treat is as almost the blueprint for the think tanks and advocacy institutions that the right developed in the 1970s, 80s and 90s. That's the subject of my latest column in The American Prospect online.

Let me also recommend an article that makes a similar argument that there is less conspiracy and coordination on the right than is often thought -- in fact, less than the right itself claims. That's Jonathan Adler's review in Legal Affairs of a new book about the conservative legal organizations.

Posted by Mark Schmitt on April 27, 2005 | Permalink | Comments (4) | TrackBack

Frist's BlackBerry Spring

I must admit, I am sort of a connoisseur of leadership in the U.S. Senate. It's a particular kind of skill, very different from executive leadership, because everyone you're trying to lead is an equal, and most of them are prima donnas in one way or another. If it's a corporate cliche to say that leadership involves listening, it is absolutely, literally true in the Senate. Bob Dole and George Mitchell were both superb Senate leaders for that reason, Trent Lott and Tom Daschle probably just a step below. But they were pretty well matched to each other, looking at it purely as a matter of skill.

But I suspect that we are witnessing the first real mismatch in leadership skills in a long time, in Harry Reid vs. Bill Frist. I think Reid might have pulled off something amazing yesterday, holding out the card of compromise on the Nuclear Option at just the moment when he knew that Frist could least accept it -- because he put himself so far out on the limb by making it a theological matter -- and knowing that there are any number of Republican Senators who would desperately love to see some sort of compromise, and simultaneously making clear that if the trigger is pulled, Democrats will not "shut down the Senate," but instead try to force votes on issues in the Democratic agenda that Republicans would like to be protected from voting on. That's a pretty powerful one-two punch.

I was glad to see Kos note this tactical wizardry yesterday. Often I think that in the Daily Kos community, which I will characterize not so much as the left of the party but the side that wants the Democrats to be very aggressive in opposition, there is a tendency to be quite absolutist about tactics: "never compromise," for example. "Never compromise" limits your freedom of action just as surely as "always compromise," and thus makes it harder to take advantage of opportunities to win. This is a very good example. It was a good idea not to try to compromise on Social Security in January-March, when the White House hadn't even offered its own plan, but there might be another moment when compromise is just the right move. In this case, at this moment, it was brilliant.

See this article from the Nation, for an example of getting it exactly wrong by making "never compromise" an iron law of opposition.

You can overanalyze Frist's inadequacies, but I think it's very simple: He doesn't know where his votes are. He doesn't quite know where his votes are on Bolton, he doesn't quite know where they are on the Nuclear Option. Knowing where your votes are doesn't just mean knowing how your members would vote if it happened today, it's knowing which ones might be shaky if any of a dozen other events occurs and what's going on with Senators on the other side. It's a matter of keeping hundreds and hundreds of pieces of constantly changing information in your head.

And you can only do that if you're talking face to face with every single one of your own members and many of the others, all the time. And Frist doesn't do that. Nina Easton of the Boston Globe recently quoted political scientist Sarah Binder:

''He's a BlackBerry addict," Binder noted, referring to his electronic communications with senators. ''That's not how Lyndon Johnson got it done. It takes face-to-face interaction."

The BlackBerry is a great thing -- I had one for a while and I miss it. It might be a good way to run a company. But not the Senate. Frist has other problems, too, like having Trent Lott second-guessing him and his surgeon arrogance. But the bottom line is that as long as he doesn't know where his votes are, he will be extremely vulnerable, and slowly Democrats will gain subtle control of the agenda.

Posted by Mark Schmitt on April 27, 2005 | Permalink | Comments (19) | TrackBack

Peter Orszag is a national treasure

I'm watching the Finance Committee hearing on Social Security. Peter Orszag of Brookings and the Center on Budget and Policy Priorities just had a wonderful metaphor to respond to the idea that private accounts are a "sweetener" or "desert" to Social Security that will make it easier to swallow the tax increases or benefit cuts that would ensure solvency.

"That's like trying to convince your kid to eat spinach by offering him a turnip for desert."

Posted by Mark Schmitt on April 26, 2005 | Permalink | Comments (2) | TrackBack

Who's Ceded the Center?

Ron Brownstein's column today starts off on a point that I got obsessed about a year or so ago: whether the low cost of entry to the internet will lead to the creation of a third party or an independent candidacy.

I won't repeat my longest and most phony-erudite post ever, but my basic point then as now was that this is sort of an old-style way of thinking about a new-style problem. (It's like saying, "The internet will make it easier to start a newspaper.") The internet won't necessarily create a third party, and it doesn't have to. Instead, it will continue to foster much more transitory and transactional interactions among people, which might never coalesce into anything like what we know as a political party. These gateways for citizen participation will be very different from the mass-membership single-issue groups that thrived in the 1970s, however, and may actually strengthen political parties as a result.

But the point in Brownstein's column that I really want to take issue with is the idea that this hypothetical new party would claim the "center" of the American political space, which Brownstein says has been ceded by both parties. Citing Dean campaign manager Joe Trippi, Brownstein argues that the self-organizing qualities of internet politics tend to drive it to extremes:

President Bush has been much more willing [than Clinton] to risk alienating voters in the center to advance ideas that energize his base. Exit polls showed that Bush lost moderate and independent voters in November's election. But he won reelection largely by vastly increasing turnout among Republicans and conservatives.

More and more Democrats see their future in Bush's model, not Clinton's. Trippi says Clinton's conviction that elections are won mostly by converting swing voters "is obsolete." Democrats, Trippi argues, are more likely to win back the White House by increasing turnout among their own supporters with a pointedly partisan message, as Bush did.

But a tilt in Trippi's direction is evident in the surprisingly unified Democratic congressional opposition to Bush's priorities. The result is that both parties are offering policies and messages aimed primarily at their core supporters.

Even strategists such as Trippi who support that approach acknowledge it could have a cost. By ceding the center, it might leave both parties vulnerable to a new force.

These are easy paragraphs to write, and easy to read and nod along. But really? Is the unified congressional opposition to hugely unpopular policies such as Social Security privatization really putting Democrats out on a far-left limb? What exactly are the policies that Democrats are pushing that are "aimed primarily at their core supporters"?

It might be more accurate to say that Democrats are choosing a tactical position that causes their main message to be opposition itself, and centrist voters might be more comfortable with a party that at least appeared to cooperate. But that's tactics, not policies. And it also leaves the problem that Democrats still have no policies and little message at all. But that's a very different problem.

Brownstein goes on:

Yet if the two parties continue on their current trajectories, the backdrop for the 2008 election could be massive federal budget deficits, gridlock on problems like controlling healthcare costs, furious fights over ethics and poisonous clashes over social issues and Supreme Court appointments. A lackluster economy that's squeezing the middle-class seems a reasonable possibility too.

Another classic "pox on both your houses" paragraph. But do the examples serve the point? What if the Democratic Party did not continue on the current trajectory, but just abstained and let the Republicans continue on theirs? The backdrop for the 2008 election would still be massive federal budget deficits, no progress on controlling healthcare costs (certainly not from the wonderful folks who brought you the Medicare prescription drug bill), maybe not "furious fights over ethics" but huge ethical problems, and a lackluster economy. There might not be "poisonous clashes over social issues" if the Democrats just rolled over, but it is the Republicans that are forcing those poisonous social issues onto the agenda, not the Dems.

If one party shoots over to an extreme, and the other opposes it, the opposition party has not automatically moved over to the other extreme. In fact, if the center is open, it is because Bush, Rove and DeLay ceded it. There is no reason for Democrats not to claim it. Democrats can become -- or, I should say, they are -- the party of responsible long-term federal budget choices, of sensible progress on health care, of political reform and ethical behavior, of leaving settled social issues as mostly private choices, and of reasonable Justices like Ginsburg and Breyer. Moving beyond Brownstein's list, add responsible stewardship of the environment, cooperative foreign policy, and more support but less federal intervention in education. Is there anything on that centrist list that the most committed MoveOn.org member would not be comfortable with?

(There may be, in that when I say "sensible progress on health care," I am assuming something other than single-payer, which I don't think is politically tenable or centrist, and there are people who would consider that a sell out. But that's perhaps the only major policy question on which there would be a huge difference between the center and the liberal "base" of the party, and neither the congressional Democrats nor any recent presidential candidate has sided with the liberal base on this one.)

The idea that Democrats should claim the political center still has a little bit of a bad name. (I'm still smarting from being criticized on the DailyKos for being "center-left.") But that's because its associated with tactics: centrist is taken to mean "cooperating with Bush." But the center doesn't have to be defined as "halfway toward Bush." There's no reason to cooperate with an extremist agenda, and equally no reason Democrats cannot to find great common ground in the true political center.

Posted by Mark Schmitt on April 25, 2005 | Permalink | Comments (11) | TrackBack

What's Nuclear?

If there was ever proof that changing the name of something doesn't change what it is or how it's perceived, the Republicans should have gotten the message when replacing the term "private accounts" with "personal accounts" didn't change the public's view of Social Security privatization. Redefining the "nuclear option" to end Senate filibusters by majority vote as the "constitutional option," and insisting that "nuclear option" is the Democrats' term, or even that the term really applies to the Democrats' threat to shut down the Senate in the aftermath, won't change the facts either.
To me, there's a very simple way of looking at this: The Senate has its own judiciary, in effect. It's called the Parliamentarian. The Senate Parliamentarian and his deputies immerse themselves in the Senate's rules and precedents. It takes years of apprenticeship to sit in the Parliamentarian's chair. At least in the days when I worked in the Senate (which, I will note once again was only eight years ago though sometimes I feel like it might as well have been the days of Henry Clay and Thomas Hart Benton), the Parliamentarian was treated with absolute respect.

The parliamentarian will rule that the attempt to change the Senate rules by majority vote is out of order. Yes, that's according to Senator Reid a week ago (Parliamentarians, by their very nature, don't speak publicly about potential rulings), but there's nothing in this article that suggests that any Republicans think the Parliamentarian would do otherwise.

The Senate makes its own rules, of course, and it is the Senator sitting in the President's chair (or the Vice President) who makes such a ruling. He can ignore the Parliamentarian's advice about what the rules are. But to do so is the very definition of Nuclear. You can do it, in the way that you can hit the accelerator after you've been pulled over by a state trooper, right after the trooper's gotten out of his car. You can do it, in the way that DeLay's Texas allies can try to strip Travis County prosecutor Ronnie Earle of his power to indict corrupt officials. You can do it, if you never expect to need the protection of those same laws or police officers or judges or prosecutors for yourself.

That should be the basic standard: If you willfully defy the very person you have entrusted to interpret and enforce your rules, you have gone Nuclear.

Posted by Mark Schmitt on April 25, 2005 | Permalink | Comments (7) | TrackBack

The Progressive Generation Gap

Markos Moulitsas (as in Kos) raised a good point at the end of last week, reporting on a three day conference of "various leaders of the budding Vast Left-Wing Conspiracy." After some pointed comments about the usual infantile leftism of people who can apparently still say "visualize world piece" without ironic air quotes, he notes:

But there was another weird dynamic at play -- this one generational. There were leaders, all of them older, of extremely prominent liberal interest groups. We're talking labor, environmental, economic justice, things like that. And some of them were genuinely awesome.

But there was a large contingent of them that were obsessed with one thing -- their pet issue. It was about them, them, them. Why wasn't their issue being addressed? Did they have to stay in some meeting if their issue wasn't being discussed? Etc.

Wow! Their self-centerdness and lack of interest in working together (unless it revolved around their issue) was breathtaking.

On the other hand, most of the younger activists at this retreat ran community-style groups. They weren't focused on any single issue, but on using the collective force of their communities to bear pressure on various issues.

I know some of the people who went to the same conference (actually, I got hold of the list and I know almost half of them), so I can put some faces on what Markos is talking about. It certainly doesn't surprise me.

In part, this is similar to the point I tried to make in my most recent take on "The Death of Environmentalism," in the American Prospect -- that the "policy literalism" of traditional advocacy just doesn't work anymore.

But Markos adds two dimensions to this. The first is that it's generational. He's certainly correct about that, and it makes perfect sense. I've recently noticed a similar dynamic, especially in the kind of smaller, more grass-rootsy and more truly left-wing groups such as the ones at this conference. Such groups tend to have an executive director. Usually a white guy, often somewhat over 50, who's put a lifetime into his cause. Never made a dime, the car he drives is still called a Datsun, he's entirely admirable. If he's in his mid- or late 50s, he started by registering voters in the South; if younger, he started in some Nader organization. He's probably a lawyer, started off thinking the courts could solve all problems but has since learned otherwise. He's been through the nuclear freeze movement, the Nicaragua obsession, the Reagan budget cuts, seen it all. He's entitled to be burnt-out, but isn't.

And then there's the rest of the staff. They typically range in age from 25-32, they're more racially diverse or biracial, extremely energetic, imaginative. Although more likely to have roots in identity politics, as Kos notes, they are more into community and organizing constituencies than promoting an issue, and they can be more collaborative, less turf-conscious. And, of course, they're experiences are totally different. They've never heard of David Stockman; if they've ever uttered the word "Nicaragua," it was with a short "i" and hard "c," just like it looks. Nader's just someone to vote for if you want to say fuck the system and elect Bush. If they go to law school, it will be so that they can be sure of making a living, not because they dream of being the next Thurgood Marshall. They have seen political success not so much in the liberal movements that the boomers are nostalgic for, but in the unity and motivate-the-base strategy of the current Republican party, and in the exciting communion of the Dean campaign.

It's easy to celebrate the younger generation, who do represent a long-overdue renewal of progressive energy and who sometimes do seem to get the current political situation better than the class of '68. But the political experience of this generation is much narrower, and for all the excitement of organizing communities, they don't yet have much to show for it. There's a lot to be learned from the people who now have a couple decades of activism and learning.

But one reason that these two groups often seem to be talking past each other is that there aren't very many people in between. There was almost no progressive activism on campus in the late Carter and Reagan years, which means that there are relatively few of us in our late-30s/early-40s in these organizations. That's a bridge generation that can be very useful. When you're 23, and your boss is 53, that's a big gap, literally a generation gap. That's dad. And generational differences such as the ones Markos noticed stand out starkly when there's no one who represents a little of both camps. Obviously, I'm exaggerating -- not only are there 40-year-olds with both attitudes, but there are 25 year olds and 55 year olds in both camps. But, generally, this perception corresponds to what I've seen in a great number of progressive organizations.

And then there's the issue Markos identifies of "organizing communities" as opposed to working an issue. This is another familiar distinction to me from the foundation world. The distinction between "organizing" and "policy" often seems much starker than it is. "Organizers" are devoted to street-level democracy, to helping people define problems for themselves and find their own solutions, and bringing voice to the political process. "Policy people" are devoted to understanding the issues, developing new approaches or critiquing conservative ones, and enlisting people to support those strategies. "Organizers" sometimes think "policy people" are arrogant, white, older, over-educated, trying to set people's agendas for them. Policy people think organizers are naive, sloppy, disconnected from real politcal power, and miss opportunities for change. Again, these are exaggerated stereotypes, but I've heard them from both sides. But it's yet another matter where people have different functions within a larger progressive system. Everyone's got their own strengths. And again, one needs bridges. Between organizers and policy people, the best bridge is the Center for Community Change. The most important task for the Vast Left-Wing Conspiracy, if there is one, is to find ways across the very real internal divides, which are divides of culture and attitude, not simple matters like different opinions about abortion, toward a common purpose.

Posted by Mark Schmitt on April 21, 2005 | Permalink | Comments (11) | TrackBack

What the Republicans Could Learn from Hayek

I was talking to someone tonight about whether there is a unifying theme to the Republican setbacks of this winter and spring -- Social Security, the Bolton nomination, and DeLay, to name the three biggies. I don't want to make more than should be made of things that are very much in media res, but I think the answer is simple and predictable: A command-control system like the White House-led Republican congressional system can be absolutely formidable for a certain period of time. But when it breaks down, it breaks down completely. The collapse is sudden, and total. Signals get crossed, backs get stabbed, the suddenly leaderless pawns in the system start acting for themselves, with no system or structure to coordinate their individual impulses.

Is this happening? I don't know, but it's getting close. I thought I'd seen it before, but each time they've pulled it back together. This time, I think there's too much happening at once.

The irony of all this for conservatives is that if they actually read Hayek and got anything out of it other than "government sucks," they would know this. Hayek's libertarianism was very pragmatic. Centrally controlled systems are flawed above all because they have no mechanism to correct their own errors, unlike distributed, self-organized systems. The Democrats in the Clinton years always operated in chaos, no one followed the party line, and there was a cost to that, but in the chaos and improvisation they found ways to get out of the holes that they had dug for themselves. The Rove/DeLay/Frist system doesn't have any means for correcting its mistakes -- look at the blank, lost looks on the faces of Senators Lugar and Chafee yesterday when they just had no idea what to do with a nomination that had fallen apart and couldn't fulfill their promises.

The Republicans accomplished unimaginable feats through the centralization of power. Three tax cuts, a prescription drug plan that will make Americans hate government, an insane war. But if the goal was long-term power, it is a strategy they will come to regret, if not today, someday.

Posted by Mark Schmitt on April 21, 2005 | Permalink | Comments (15) | TrackBack

Why the Bolton Nomination is a Very Big Deal

If I have a core idea about politics, it's that it should be unpredictable and improvisational. In part I'm sure that's an aesthetic preference -- that is, the show's more entertaining if you don't know what's going to happen -- but I think it's more than that. Elected officials are more likely to be honest and honorable if they can't be sure they're going to be reelected, majorities are less likely to abuse their power if they know that they might not hold the same power tomorrow, etc. Often I refer to "open" politics, and what I really mean by that word is something more like "fluid," or "uncertain" politics.

The last five years have offered very few opportunities to witness such improvisation, until this afternoon. I have to commend my colleague Steve Clemons for taking up the issue of the Bolton nomination and sticking with it, and along with many others, for helping to create such a moment. Regardless of the final vote on the Bolton nomination itself in three weeks, if it occurs, a lot happened today and last week that will reverberate over the months to come.

For those who didn't have a spouse or friend to say, "turn on C-SPAN, now," the critical moment came when, after a day of procedural wrangling about whether the Senate Foreign Relations Committee could or could not meet, the committee finally met with the clear intention of voting the Bolton nomination out on a party-line vote. After actually beginning a vote on the nomination, Senator Voinovich of Ohio suddenly spoke up to say that, while he had missed the hearing on Bolton, given what he had heard about Bolton's management style, he wasn't prepared to vote to send the nomination out of committee. That prompted Senator Chafee of Rhode Island to beg for a reprieve from the committee chairman, Richard Lugar: "Mr. Chairman, is there anything in what Senator Voinovich said today that might make you hesitate about going forward with this nomination."

One could so palpably feel that Lugar and Chafee had both made a commitment to someone, somewhere that whatever they themselves thought, they were going to march forward on the nomination without looking back. And just by saying what he thought, Voinovich forced them to look back, look around. It was a spontaneous moment, and it can't be put back in the box.

The one worry I have now about the Bolton hearings is that the issue comes down to very personal matters -- did he harass a USAID contractor in Kyrgyzstan on behalf of a client a decade ago? At that point, it turns into another he said/she said personal, slightly seedy episode. On the other hand, if the focus can remain on Bolton's misuse of NSA intercepts, and the reason he harassed subordinates at the State Department, which was that they didn't dutifully back up his unfounded statements about North Korea, Cuba and Iraq, then the nomination becomes the doorway to the question that has been very deliberately excluded from both the Senate Intelligence Committee report and the Silberman commission -- the pressure to distort intelligence. And it can also be a much broader debate about America's attitude toward the world, as embodied in our U.N. Ambassador. Much like the victory over Social Security privatization, this is more than defense or just a check-mark on the partisan scorecard. Handled correctly, it's an opportunity to make an entirely fresh case for a different set of values.

But it's the spontaneity, the thinking-for-themselves that will really have a lasting impact. This reminded me a little bit of the crazy debate over the Crime Bill of 1994, perhaps because Senator Biden was also involved then and as now, talks a lot. That was really the moment when Democrats' control of the House and Senate, and the agenda, fell apart. The election that year was merely confirmation.

Posted by Mark Schmitt on April 20, 2005 | Permalink | Comments (12) | TrackBack

Is There A "Constitution in Exile" Movement?

I enjoyed Jeffrey Rosen's piece on the scholars and judges who fall under the rubric of the "Constitution in Exile," a topic I've mentioned a few times here. (Always, I hope, with the caveat that I am no constitutional scholar.) I've also read with interest the responses on the Volokh Conspiracy, by David Bernstein and Orin Kerr, arguing quite convincingly that there is no such thing as a self-conscious "Constitution in Exile" movement.

Bernstein and Kerr seem to be right, and others confirm, that the phrase "Constitution in Exile" appeared in passing in a dull review of a dull book (I've actually read the book, for reasons I've forgotten) ten years ago, and has been claimed more recently by others to define a very loose group of academics and judges who share a broadly libertarian approach. Probably even at the Federalist Society, they're not raising their glasses of Cutty Sark to hail the return of the Constitution in Exile, like New York's White Russians longing for the lost Dutchess Anastasia.

I have mixed feelings about this. On the one hand, I value the truth, and overstating the degree of unity and coherence to a movement doesn't serve the truth. And I'm always worried about liberals' tendency to overstate the degree of coordination and purpose on the right, which is why I broadly agreed with David Brooks last week. In fact, I should have an article coming out soon that takes apart one small aspect of Rosen's story that has become a big part of the myth of the right. These stories are misleading for many reasons, one of which is that they feed the liberal illusion that if we just build a structure that is as well coordinated, the tides of history will shift back in our direction.

On the other hand, sometimes the way to master history is to understand trends and give them a label that the participants would not give it themselves. So what if no one considers themselves part of a "Constitution in Exile" movement? There is clearly a group of scholars and judges who hold the view that judges should give far greater deference to what they view as core economic liberties in reviewing legislative decisions. While there are variations within this view, it broadly unifies a group whose viewpoint differs on the one hand from Scalia's federalism and originalism, and on the other hand from the tradition that largely defers to Congress on matters of economic regulation.

The efforts at Volokh and elsewhere to prove the non-existence of a CIE movement do not challenge this basic point. They pick holes in Rosen's very brief description of the Lochner decision (technically, apparently it is not accurate to describe Herbert Spencer as a Social Darwinist, Holmes along with other evil "statists" were appointed by Republicans so it is incorrect to describe the CIE'ers as longing for a golden age of Republican rule) but do not challenge the basic point that the thinkers and judges in Rosen's article probably think Lochner was correctly decided. And if that's the case, then Rosen's article is basically correct, even if it implies a greater sense of coherence and movement than exists.

As Rosen makes clear from the start, The Constitution in Exile theme is going to be a powerful weapon against judicial nominees like Janice Rogers Brown who contend that 1937, the year the Court switched on some issues, was ''the triumph of our socialist revolution." When Clarence Thomas was up for confirmation in 1991, these were marginal and idiosyncratic ideas. If Thomas read Richard Epstein's books out of interest, so what? (One should read them, by the way.) Now, however, it's part of something bigger, a real push to turn back decades of jurisprudence.

There's a lot of political power in defining trends and defining movements. I'm sure the Constitution in Exile label fits awkwardly and it's not something people want to be stuck with, because it doesn't sound like a very good thing. But there is a group that has these views, and this is a good way to make sense of it all.

Posted by Mark Schmitt on April 18, 2005 | Permalink | Comments (16) | TrackBack

FEC and Blog Disclosure

Having been one of the voices loudly dismissing the claim that the Federal Election Commission would regulate bloggers, I have to say that Mike Krempasky has a very strong point in his response to Chris Nolan and more specifically to Rick Hasen. Hasen had argued in a thoughtful and anti-alarmist Findlaw column that if blogs were 100% exempt from regulation, they risked eroding the longstanding prohibition against corporate and union money supporting political campaigns. Hasen urges bloggers to accept at least a disclosure requirement, similar to the disclosures that Kos and Jerome Armstrong made of their work for Dean, and that the Daschle v. Thune bloggers did not make of their payments from Thune.

I proposed something similar as a kind of code of ethics for blogs. But if Hasen is talking about an FEC-enforced law or regulation, then Krempasky is absolutely right when he says this would require "serious regulatory surgery" because, "Under the current law, the FEC does not have the authority to force ANYONE to disclose payments from the receiving end, the onus for disclosure rests with the entity writing the check. To ask bloggers to do so would actually place a higher regulatory burden on them than anyone else in the political universe." (The FEC did not propose such a rule, although it did raise the question.)

It would also be very difficult to justify such a regulation under the current legal regime governing campaign finance. Even after the Supreme Court ruling upholding BCRA, preventing corruption or the appearance of corruption by elected officials is the only justification for regulating campaign contributions or other activities. But that's corruption of elected officials, not of bloggers or reporters or anyone else. If a blogger is getting paid by a campaign, or if Joe Klein is being paid by a campaign, or if either one is volunteering for a campaign on the side and also writing about it, they should disclose that. But "should" and "should be required by the FEC" are two different things. We assume that Klein (name picked at random) is not a problem because he operates within a structure that has certain professional guidelines and its his boss's responsibility to enforce commonsense ethics. But bloggers (as well as independent columnists like Bush administration flacks Maggie Gallagher, Armstrong Williams, and the third guy I'd never heard of) operate in some isolation from those structures of enforcement.

Still, that's not an election law problem. It's a problem on the same order as a supposedly independent technology blogger or columnist being paid by Microsoft, which I'm sure is the kind of problem that is already coming up and will come up more often.

It also doesn't really deal with the issue that Hasen is trying to solve, which is blogs being used as a vehicle for illegal corporate or union promotion of a federal candidate. There the problem is not the blogger being paid by the campaign, but being paid by someone else and encouraged to influence politics. But that's a hard one to enforce, if there's no actual nexis to a campaign. Still, some cases will be obvious -- if a union hires someone and asks them to do nothing but start a blog focused on promoting a particular candidate, that's a significant electioneering activity.

My own view, increasingly, is that the FEC should try to find some line based on the passivity or activity of the communication. Yes, pop-up ads are no different from TV ads, hitting the unsuspecting voter over the head. But everyone who reads a blog has gone to that blog for a reason (even if accidental, as I know some percentage of my hits are). It may be deceptive -- that is, I may think that some blog is a neutral observer but it is actually a rabid partisan -- but that's a pretty minor concern compared to, say, several million dollars of unanswered negative ads from a mysterious source. Maybe I should try to formulate this idea into a formal comment to the FEC on its proposed rulemaking.

If Hasen is right that unless the FEC imposes some such disclosure requirement on blogs, then a giant loophole will open up, it's a good illustration of the tangled web that the limits-based approach to campaign finance weaves, with each attempt to close down a loophole opening up a new one. Perhaps we have reached the limit of limits and need to find a new way to think about speech, money and politics, one that focuses on making sure that all candidates can be heard.

As an afterthought, it is interesting that campaign finance regulations in the U.S. are so focused on donations and not at all on the disbursement of funds. Not only is campaign spending totally unregulated except for some basic disclosure, there are none of the resources such as the Center for Responsive Politics to help analyze how campaigns spend their money. That's in sharp contrast to most other countries, which typically have stronger central parties, and where spending by the parties is the main issue in campaign reform, especially spending to influence the media. I recently read a paper put out by the anti-corruption group Transparency International on monitoring campaign finance in Argentina, and was asked to review it's applicability to other countries. It was hard to evaluate because the issues that it was looking at were so completely different from the contribution/corruption issues we focus on here. We could use a little more attention to the disbursement side here, even if the U.S. will never have the legal tools to regulate spending.

Posted by Mark Schmitt on April 14, 2005 | Permalink | Comments (17) | TrackBack