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Got all tingly a few days ago when the Roundtables forum section went off the site... guess I'll continue holding my breath...
Anyway, came across this today. Not necessarily the latest in the news, but something of interest nonetheless. May be straight-up Whiggy, but I figured I would kick it around for clarification and discussion. Perhaps we could even add support of it to our Platform?
At any rate, here it is, the American Anti-Corruption Act. I will summarize it, since it may be a bit TL;DR(abbreviation for Too Long; Didn't Read)-worthy. For those who wish to read through the complete language as-written, the PDF file can be found here:(https://s3.amazonaws.com/s3.unitedrepublic.org/docs/AACA_Full_Provisions...)
SECTION 1: CONFLICTS OF INTEREST
Provision 1:
The American Anti-Corruption Act (AACA) will prohibit Members of Congress from raising funds from the special interests that they regulate. Under the Act, if an organization lobbies a Member of Congress, the Member may not solicit contributions from that organization, its lobbyists, or persons in the organization that lobby or supervise lobbying efforts, for two years unless the Member recuses himself from taking actions at the Committee or Subcommittee level to benefit that organization. Additionally, if an organization and its lobbyists and persons who engage in or supervise lobbying efforts have, in the aggregate, directly or indirectly contributed $50,000 to a Member or spent more than $100,000 on electioneering communications or independent expenditures benefiting the Member’s campaign, the Member also must recuse himself from taking actions at the Committee or Subcommittee level to benefit the organization.
Provision 2:
The AACA limits the amount that lobbyists, clients of lobbyists, and employees of lobbyists or clients that either engage in lobbying or supervise lobbying activities may contribute to a federal candidate, political party, or political committee to $500 per calendar year. Additionally, these individuals are prohibited from fundraising for federal candidates, political parties, and political committees. This provision also includes a one year cooling off period: Individuals who make contributions in excess of $500 in a calendar year to a federal candidate, political party, or political committee, or engage in fundraising activities to benefit federal elected officials or candidates are prohibited for one year thereafter from becoming a lobbyist. Finally, individuals involved in lobbying activities are prohibited from making contributions in excess of $500 or engaging in fundraising activities to benefit federal candidates for one year after terminating their status as a lobbyist.
Provision 3:
Currently, Members of the House and employees of the House who are paid at least 75% of a Member’s salary are prohibited from lobbying Congress for one year. This restriction also applies to former Senators for two years; to Senate employees who are paid at least 75% of a Member’s salary for one year; and in a more limited fashion to less-compensated Senate employees. Under current law, former Members of the House, Senate, and congressional employees may freely aid or advise clients on how to lobby Congress in a “background role” or freely lobby the executive branch. The AACA extends the existing revolving-door restrictions to 5 years for former Members and former congressional staffers, and brings all lobbying activities — even acting in a background or supervisory role — within the prohibition.
Provision 4:
Existing law prohibits federal contractors from making contributions to federal candidates, political parties, and political committees. The AACA extends this prohibition to the federal contractors’ PACs, lobbyists, and employees who engage in or supervise lobbying
CAMPAIGN FINANCE REFORM
Provision 5:
The Act would require Super PACs to abide by the same contribution limits that apply to other federal political committees
Provision 6:
The AACA empowers individual citizens to become the primary funders of federal elections through the creation of an annual Tax Rebate of $100 that registered voters can use to make contributions to the federal candidates, political parties, and political committees that they support. In order to be eligible to receive Tax Rebate contributions, candidates, political parties, and political committees must agree to limit the contributions they receive to contributions from individuals of no more than $500 per contributor per calendar year or contributions from political parties and political committees that are funded exclusively by Tax Rebates and contributions from individuals of no more than $500 per contributor per calendar year.
Provision 7:
The FEC’s current coordination regulations permit extensive collaboration between candidates and supposedly “independent” Super PACs. The AACA would amend federal campaign finance laws to more broadly define what activities constitute “coordination,” such that the current phenomenon of single-candidate Super PACs and Super PACs with close ties to campaigns would no longer be permissible.
TRANSPARENCY
Provision 8:
The AACA will require Members of Congress to disclose on a monthly basis how much time they spend engaging in fundraising while the Congress is in session.
Provision 9:
The AACA will expand the definition of “lobbyist” to include every person who, for compensation, (1) makes two or more lobbying contacts or who provides strategic advice or directs or supervises lobbying efforts; and (2) spends more than 12 hours on lobbying activities on behalf of a client. The Act will broaden the definition of lobbying to include the provision of strategic advice; advice and assistance with earned media related to legislation or legislative issues; polling related to lobbying goals; and advice on the production of public communications related to lobbying goals. The Act also will require the clients of lobbying firms to register and file disclosure reports, and require registrants to identify the funders of their lobbying efforts. Finally, the Act will require lobbying disclosure reports to include more detailed information about lobbying activities, such as the specific congressional offices, committees, subcommittees, and Members contacted.
Provision 10:
The AACA will require federal candidates to disclose the names of individuals who “bundle” contributions for the Member or candidate, regardless of whether such individuals are registered lobbyists. The Act also will require any organization that spends $10,000 or more on advertisements to elect or defeat federal candidates to file a disclosure report with the Federal Election Commission within 24 hours of airing the advertisement. This report would be immediately available on the FEC website, and must list each of the organization’s donors who donated $10,000 or more to the organization to run such ads.
Thoughts?
The Act is full of holes and will most likely be declared unconstitutional by the first federal judge who hears a challenge to it:
A. Provision 1 - so, a sharp "con" organization woud soon know the fastest way to get a "pro" congressperson to have to recuse would be for a "con" organization to make a sizeable contribution to a "pro" congressperson's reelection committee. Thus, the Act creates a bigger problem that it solves.
B. Provision 2 - based on SCOTUS' 2010 decision in Citizens United v. Federal Election Commission, this provision should be ruled as unconstitutional once the first challenge arrives in a federal court.
C. Provision 3 - the courts will probably rule that the five-year proviso is too overreaching since other "employee restriction" rulings have done so for other occupations. Add to the fact that a representative'e term is only two years, the placing of a five year restriction on an outgoing representative/staffer won't cut it for being too long a time frame.
D. Provision 4 - please see the Provision 2 comment.
So much for the first section of the Act. -- more to follow. The Act will get a lot of trumpeting, but it will be challenged under the First Amendment and has a very good probability of being court-killed in a couple years.
As far as the Act's intent, the fact is that federal campaign donations are already public record and available to any voter wanting to see how ethical and moral a congressional/presidential candidate/officeholder is concerning his/her funding. Whether voters care....the fact that there are so many15-20-30-40 year incumbents despite Congress having only a 17% approval rate says volumes about the voting public's true feelings.
While I can completely agree with your thoughts on Provision 1, and that the public's voting record tends not to reflect particular sentiments, I would like to know what you would say to the following constitutional counterarguments:
Provision 2: While the SCOTUS has never directly addressed the constitutionality of applying a lower campaign contribution limit to lobbyists, there have been several lesser-court rulings that would indicate the AACA's constitutionality:
-The 4th Circuit, in 2011, upheld a North Carolina law that completely prohibits contributions in any amount from lobbyists (Preston v. Leake)
-The 2nd Circuit ruled in Green Party of Connecticut v. Garfield (2010) that contributions by lobbyists can be strictly limited, but not entirely.
-Similar limits set by NYC were also upheld by the 2nd Circuit (Ognibene v. Parkes, 2011)
As the AACA does not completely prohibit contributions from lobbyists, but rather limits contributions to $500 per calendar year per contributor.
The constitutionality of prohibiting these individuals from soliciting or coordinating contributions to federal candidates, committees, and political parties has not yet been decided. While the U.S. Court of Appeals for the Second Circuit recently struck down a Connecticut law that entirely prohibited lobbyists from soliciting contributions, the Court’s opinion suggests that if such a solicitation ban permitted the solicitation of contributions from immediate family members, the ban would be more likely to be upheld. (Refer to Green Party of CT v. Garfield)
Provision 3: Similar restrictions on post-government-service employment have been upheld on various occasions by various courts (See General Motors v. NYC - 2nd Circuit, 1974; US v. Nasser - 7th Circuit, 1973; and US v. Conlon - DC Circuit, 1980) These laws were determined to prevent government employees from being “influenced in the performance of public duties by the thought of later reaping a benefit from a private individual.” Brown v. DC Board of Zoning, (DC Court of Appeals, 1980)
Provision 4:
The existing prohibition on contributions from government contractors was recently upheld by the DC District Court in Wagner v. FEC (2012) The Wagner decision
has been appealed to the U.S. Court of Appeals and we will hear about that decision relatively soon. As such, it is hard to predict a SCOTUS ruling but it looks promising. Also, see Ognibene v. Parkes and Green Party of CT v. Garfield.
Just keeping the conversation going. Looking forward to your thoughts on the rest of the Act.
Provisions 5-10 tell me that the Federal Election Commission will soon become another mega-agency staffed by thousands of civil service employees and a host of political appointees. The auditing/reviewing/enforcing functions as described in the Act will be massive and won't be cheap. So much for reducing the federal spending.....
So, who is a lobbyist? Does it require a K Street address or does it also include all of us who contact our congresscritter a couple-three times a year regarding upcoming legislation and our opinion on it? By the Act's definitiion, it appears to be all of us.x Since the definition is so broad, all of that expensive reporting, record-keeping and federal oversight definitely will quash the "loyal opposition" from speaking its mind, organizing and otherwise participate in politics.
By lobbyist definition, that also includes the Democratic and Republican National Committees, state and local Democrat/Republican party offices, and all other political party leaderships, since they all definitely interface heavily with elected officials on everything from fundraising to legislation.
I could dissect this Act all day long, but the bottom line is this - anytime government interferes with the political process by mandatory record-keeping, reporting, and threat of government sanction for failure to abide, then the current administration (since the enforcement folk are all in the Executive Branch) becomes the gatekeeper and controller of ALL political activities including and especially any opposition. That's no different than what happens today in Venezuela and China. Again, so much for Freedom of Speech and Freedom of Association as this Act definitely has a negative impact.
All of these "Acts" have one goal - keep the voters from getting smart enough to question the "wisdom" of the current crop of officeholders by getting voters to believe that government is protecting the voters from the persons who passed this Act and signed it into law. This Act insures that upstart political groups (like MWP) are effectively muzzled by expensive record-keeping and reporting (can third parties afford all this?) and making incumbents hesitant to discuss issues with groups other than their party leadership due to reporting requirements.
There will always be backroom political activities, In many ways that's healthy. An old Prussian once said that the people should never see how their laws and sausages are made. I seriously doubt that the RNC and DNC (and affiliated state/local offices) will abide by this Act, and probablly will be given special exemption even though the RNC and DNC (and affiliated state/local offices) are the biggest lobbyist groups in the country. And since every single K Street lobbyist is also wired within either the RNC and DNC, as well as being the virtual godparents of each others' kids and fellow Mason/Knight/Moose/Elk lodgemembers, this Act did not mitigate any access/influence by folk within this particular professsional/social circle. Instead, this Act slams the door on ths MWP-equivalents and local constituency groups (e.g., Tea Party) that want to challenge 15-20-30-40 year incumbents.
For every action there is an equal and opposite reaction - it's true in physics and politics. Whenever any Bill or Act is introduced, it needs to be viewed from several angles, as rarely is any Bill or Act quickly passed by Congress and signed by the President which causes any impediment to the professional politician's first concern - that being fundraising and reelection.
Keep it up - great discussion. James Ryan, dont let this old barrister be too stiff of a devil's advocate, but the process is healthy and correct. Thank you again Steve. I have to remain focused on the ballot reframing issue and wont stick my nose in here.( cheers )
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