Tuesday, April 9, 2013

The Threat of Political Abuse in Campaign Finance Laws

Today RNLA Member, Top 100 Influential Lawyer and former FEC Chair Brad Smith testifies in front of the Senate Judiciary Committee, Subcommittee on Crime and Terrorism .  Smith makes many points in his testimony on campaign finance law but the one I will focus is:

Vague election laws combined with criminal penalties are a recipe for abusive political prosecutions. It is a threat both to the First Amendment and to honest government.

One example he gives is the 2006 election of Senator Ted Stevens.  Stevens' election loss (along with the fraudulent Montana election where the Democrat Governor bragged about stealing it) gave control of the Senate to the Democrat party for the last two years of the Bush Administration.   This effectively changed the political landscape for President Bush's last two years.   As Smith writes:

Other recent high profile political prosecutions for vague allegations of campaign finance laws have similarly come apart at the seams, as in the prosecution of Ted Stevens. Unfortunately, far too often the damage is done by the time the law catches up to the hysteria.  Stevens was convicted just days before the election, which he lost by less than 1% of the vote, and only vindicated posthumously after a plane crash.

And unfortunately all too often  the solution to problems in the so-called "reform" community is more regulation by more agencies thus making it more difficult.  Smith focuses on the IRS as an example.   

Similarly, in the last year alone, the IRS has illegally disclosed confidential tax return information of politically sensitive non-profit groups on at least three occasions involving an unknown number of organizations. As a result, last month a large and bipartisan group of prominent non-profit attorneys sent a strongly worded letter warning of the consequences of such disclosures.

While Smith is cautious in what he says, I have no doubt that in some of those cases that disclosure was intentional to hurt the efforts of conservative leaning social welfare groups.   But Smith is correct in his conclusion that there is an inherent danger in having agencies other than the FEC handle political speech. 
The other agencies simply do not have the expertise or agency culture to enforce such laws. Enforcement of such complex law is difficult, and Congress should not attempt to create new enforcement agencies or give existing agencies new powers that would stray from their mission.
Hopefully the Senate will listen to Mr. Smith’s sage advice today. 

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