Skepticseye.com

But that was no 120 days just now.  And if they get the court to order the FEC to take action, doesn’t that restart the 120-day clock?

You see, under the statute, if a party files an FEC complaint, and the FEC doesn’t take action, in 120 days the party can prosecute the complaint directly in federal court.  These suits, called “a8″ suits, don’t work if the FEC has taken action at all - even to just start the wheels of an investigation moving.

So I’m not sure why the DNC is rushing the procedure like this.  Wouldn’t it be better to wait the 120 days out, and file on the merits during . . .  gee I don’t know . . . the Republican Convention?

People’s Park in Berkeley - has rules.  Posted.  Several places.  I have photos.
Meanwhile I was able to enjoy this as a guest of the Institute of Governmental Studies at Berkeley.  They dialed up nice weather, great panelists, and a memorable occasion.

Brilliant, grumpy campaign finance czar Herb Alexander has departed this life. The Post and the NYT both featured very thoughtful obits. John Samples offers thoughts here. USC’s In Memoriam is here, with a great photo.  CCP’s thoughts are here.
I first met Herb as one of the counsel for the Thompson Investigation - the staff called me one day to say there was “this guy” in the office that wanted to talk to someone about offering testimony when the time came. I figured it was, you know, just a “guy” and then Herb Alexander walked into my teeny little office. We had a blast talking about how much fun it was to do state-level campaign finance research on the Internet. And grumping about some of the more outlandish reforms being bounced around the Hill at that time.

The last time I had the pleasure of talking with him was at a Cato campaign finance conference in, I believe, 2006. He was frail and accompanied by a nurse, but generally in feisty spirits with lots to say about everybody there. (Heh).

Here’s a link to Alexander’s Frontline Interview from pre-BCRA, just for fun. I hope someone sat down with him to take an oral history.

My paper for The Forum, on why we might not want to require bundling disclosure, is up and available here.

Apparently they hire media people now.

As one would expect, Candidate McCain has not felt bound by the primary spending limits. The conventional wisdom seems to be that, since the FEC lacks a quorum, nothing will be done until it can meet and muster four votes for something.

Yet recall that the DNC filed a complaint with the FEC in February about this very issue. Naturally, a quorum-less FEC can’t act on that either. But, after 120 days the DNC then has the right to file a petition in DC District Court. So, in late June (or thereafter) the DNC can petition the court, and the court can find that the failure of the FEC to act is “contrary to law” and direct the FEC to act in conformity with the court’s application of the law. McCain could then appeal this order, and so forth. Note that this could occur before the convention, which is still within the “primary” season.

Or maybe the DNC would prefer to make this lawsuit part of the media coverage of the Republican convention. The statute requires that a petition from an FEC dismissal be filed within 60 days of the dismissal, but sets no time limit for petitions based on a failure of the FEC to act.

I know failure to act petitions have been filed lots in the past, and are almost always unsuccessful. This is because the FEC (in ordinary times) acts internally on complaints quite promptly, even if the entire enforcement process seems to take forever. But here, there is no question about the FEC’s ability to “act” -  without a quorum, the FEC can’t act at all. Could the FEC lawyers argue that internal administrative machinations that require no FEC Commission vote (tally or otherwise) is administrative “action.”? Hmm. I can see a judge taking notice of the lack of quorum, deciding that this is intolerable, and taking the reins here.

And maybe in other matters too. If judges can run school districts why can’t they run the FEC?

A California federal judge has issued an order, indicating that 437g(a)(4) (the requirement that the FEC conciliate matters before filing suit) may not mean what you might think it does:

On November 15, 2006, the FEC notified Defendant of the finding of probable cause and provided a proposed conciliation agreement seeking a civil penalty of $106,000. Thereafter, the FEC and Defendant had at least one telephone conversation to discuss the terms of the proposed conciliation agreement, specifically the civil penalty. (Mot. To Dismiss Exs. D, E.)

On December 14, 2006, after the parties discussed the FEC draft conciliation agreement over the telephone, Defendant submitted a letter and a proposed revised conciliation agreement to the FEC, offering to pay $31,000 as a civil penalty. (Id. Ex. D.)

So you’d expect the bill to come out somewhere between $106,000 (yow!) and $31,000.  But then - nothing happens.  For quite some time.  Then:

On May 22, 2007, the FEC sent a letter formally rejecting the revised conciliation agreement.  After the FEC voted to authorize the filing of a suit, but before the suit was filed, the parties again attempted to reach a conciliation agreement. On July 2, 2007, the FEC sent a letter to Defendant formally rejecting his offer of $56,000.

… Defendant contends that a proper attempt at conciliation did not occur because the FEC did not timely respond to his counter-proposal. For support, Defendant states that the FEC improperly delayed the conciliation process by failing to respond to his counter-proposal until “4 months and 1 day (or 121 days) after timely receipt of proposed conciliation agreement, and 62 days after expiration of the 90 day maximum conciliation period.” The FEC does not dispute this point. Instead, the FEC argues that it only had to respond to Defendant’s counter-proposal “if the agreement were acceptable . . . [and] . . . silence in response was a rejection of defendant’s counteroffer.”

“Where did that file go again?  Oh yeah, it’s under the short leg of the coffee table . . . ”

By the way, this matter involves an enthusiastic Republican billboard magnate and his failure to properly report or include disclaimers on some pro-Bush billboards.

The Post thinks it is unfair for Senator McCain to be stuck with spending limits while the Democrats can battle away until their convention. First, so what? If rules are unfair, one remains stuck with them anyway, and can argue about changing them but is not free to ignore them.

Second, the public financing system isn’t just about doling money out to candidates. It was also intended to LIMIT SPENDING. Laws may not (constitutionally) set spending limits unless those limits are voluntary, and the traditional way to sweeten the deal has been to offer public money in exchange. The spending limit isn’t an afterthought, but an animating feature of the law.

Finally, the practice of using the promise of future public funding to secure a loan arose because candidates needed money before the Treasury could release it. Observing that this practice provided an incentive for candidates to obtain certification, without intending to limit their spending, using one’s certification as collateral is treated like accepting the money.

The issue of whether McCain’s invocation of his certification is the same thing as “collateral” is a good one on which reasonable people can disagree. But it isn’t enough to take the McCain campaign’s word for it. The real solution is either to have the FEC rule, or if it can’t, ask a federal judge to do it.

The smart and nifty Bob Lenhard supports the presidential public funding system. Among other reasons:

… by many measures, the program has worked quite well. In presidential elections from 1976 until 2000, every major-party nominee chose to accept public financing, with its accompanying rules, in both the primary and general elections.

As one wag noted to me, if the test of an effective program is that people will take funding, then wouldn’t that mean pretty much any program is a demonstrated success? The DC revenue department? Someone took the money . . .

Lenhard continues . . .

Since 1976, six presidential elections have pitted incumbents against challengers; in those contests in which both accepted public financing, the challengers won half the time.

That may be, but would we predict that in th absence of public financing, Gerald Ford (1976) and Jimmy Carter (1980) would have won?

Just because you, dear Newspaper Editorialists, don’t think arcane campaign finance tiffs aren’t fun, doesn’t mean you need to be petulant about it.  To quote:

In a debate that only law students could enjoy, McCain’s critics suggest that the prospective Republican nominee is legally bound to accept public financing for the rest of the period before the party convention in September — and also bound by spending limits. McCain’s defenders reply that he didn’t irrevocably commit himself to accepting matching funds and that his eligibility for public funds was not technically collateral for his campaign loan. Legalities aside, it is embarrassing that the senator — the coauthor of the 2002 McCain-Feingold law increasing government oversight of election campaigns — has soured on public financing after taking advantage of the expectation that he would participate in the system.

Well, sniff sniff to you, too!