FEC puts Obama in a bind

Politico ^ | 10/28/2009 | Kevin Vogel

[markomalley]

The Federal Election Commission has presented the Obama administration with the choice between standing behind President Barack Obama’s campaign rhetoric or possibly threatening one of his pet causes – and maybe his reelection chances, not to mention highlighting his differences with his own lawyer, rumored to be under consideration for a top White House post.

For all this, Obama can thank the FEC, the independent panel charged with overseeing campaign cash, and its partisan vote last week not to appeal a sprawling federal court ruling that could uncork a new wave of election spending by outside groups that some predict would help Republicans compete with Obama’s fundraising juggernaut in 2012.

The ruling has presented the Obama administration with a tough choice: either go over the FEC’s head to appeal the ruling, which some experts caution could result in even wider money-in-politics loopholes, or let the decision stand in hopes of closing the new loophole in another case.

Letting it stand would draw the ire of Obama’s allies in the watchdog community, who are urging his administration to appeal the case, in which the Democratic powerhouse EMILY’s List successfully challenged FEC fundraising and spending limits as unconstitutional and over-reaching.

The watchdogs had high hopes for Obama, who has long cast himself as committed to reducing the power of special interest cash in politics, but are growing impatient with his perceived unwillingness to bolster campaign finance rules that have been diluted by a skeptical judiciary and divided FEC.

“It’s a challenging situation because the administration can’t finesse this: it has to make a decision one way or the other, and it’s going to make people unhappy one way or the other,” said Michael Toner, a former FEC chairman who advises Republican candidates and committees – including that of Minnesota Gov. (and possible 2012 presidential candidate) Tim Pawlenty - on election law issues.

“This is a big deal,” Toner said of the EMILY’s List case. “Whatever they do here is going to have significant consequences on the legal rules that will apply to the 2010 midterms and the 2012 presidential election.”

The decision on whether to appeal is technically in the hands of Obama’s Solicitor General Elena Kagan, whose office did not respond to requests for comment. But most legal observers expect the White House to have a voice in the thorny calculation. It didn’t comment either.

Complicating the issue further is that the lawyer representing EMILY’s List, an independent group that backs Democratic women candidates who support abortion rights, is Bob Bauer, a bona fide member of the Obama inner circle who is rumored to under strong consideration to replace White House Counsel Greg Craig, who has taken much of the blame for botching Obama’s plan to shut down the Guantanamo Bay prison.

Bauer – who is Obama’s personal and political lawyer, and also the husband of White House communications director Anita Dunn – declined to answer questions about the case or whether he had discussion’s about the White House counsel job.

Until a few years ago, Bauer had been a vocal critic of certain efforts to restrict political spending, putting him at odds with Obama’s own expressed commitment to reducing the role of money in politics.

Brought in 2005, the suit alleged that FEC rules limiting how much so-called 527 outside groups could raise and spend violated EMILY’s List’s First Amendment rights and also exceeded the FEC’s authority. A judge in Washington, D.C.’s federal district court ruled in favor of the FEC last year, and EMILY’s List appealed, winning a sweeping ruling last month from a three-judge panel of federal appeals court. The panel not only struck down narrow restrictions dictating what types of money could be used for ads that referred to federal candidates versus more generic organizing activities, but also called into question contribution limits on independent political groups- as a whole.

“It would have been appropriate for Bob Bauer to step down from this case altogether, especially if he wants to be a part of the White House,” said Craig Holman, a lobbyist who pushes for stricter campaign cash and ethics rules for the non-profit group Public Citizen.

Holman called the EMILY’s List case, “a mess for Obama,” but he added “that’s why it’s such an important test case for him to clarify where he stands on campaign finance reform generally following the election.”

Like many campaign finance watchdogs, Holman worked with Obama’s Senate office to bolster rules on lobbying, ethics and campaign finance reform, and hoped that as president, Obama would throw his weight behind tough regulations on those issues.

But – though the watchdogs have found more willing audiences in Obama’s White House than any previous one and also have applauded Obama’s imposition of tough new rules on lobbying and ethics – they have become increasingly disenchanted with his record http://www.politico.com/news/stories/0709/24675.html on campaign finance issues.

Obama broke a promise to participate in a Watergate-era public funding system designed to reduce the role of fundraising in presidential elections, becoming the first presidential candidate to refuse the public funds on his way to raising a record-shattering $750 million, and – many observers believe – ensuring future presidential candidates also bypass the system.

At the time, he promised to work to fix the system if elected, but he has so far resisted entreaties to back an overhaul bill sponsored by Sen. Russ Feingold (D-Wis.), who – along with his coauthor on a seminal 2002 overhaul of campaign finance rules Sen. John McCain (R-Ariz.) – is considered a leading congressional champion of reducing the role of money in politics. 

Additionally, the watchdogs, who have long criticized the FEC as toothless and prone to partisan deadlock, grumble that Obama has protected the status quo on the six-member panel, which by statute is evenly divided between Democratic and Republican nominees. Though half the members continue to serve despite expired terms, Obama has announced only one nominee, a labor lawyer, to replace a Democratic commissioner, a nomination Feingold and McCain are blocking until Obama nominates new commissioners “with a demonstrated commitment to the existence and enforcement of the campaign finance laws.”

In a split that typifies the FEC’s partisan divide, the three Democrats last week voted to appeal the EMILY’s List ruling to a so-called en banc panel consisting of all the judges on the appeals court, while the three Republicans opposed the appeal.

There’s some question about whether Kagan can appeal to the appeals court and the deadline if she does appeal is next week.

And a Supreme Court appeal risks setting campaign finance rules back further than the decision by the three-judge panel, according to Rick Hasen, a leading campaign finance legal scholar who espouses a pro-regulation view on his influential Election Law Blog.

“The danger here is that the Supreme Court goes even further than (the three-judge Circuit Court panel) did,” Hasen asserted. “So if I were advising the Obama administration, I would resist the urge and lean heavily against an appeal in the EMILY’s List case, purely for strategic reasons,” he said.

The appeals court has already announced it will hear a case in January that deals with the same issues and seems more likely to uphold at least some of the rules in question, Hasen said.

Additionally, the Supreme Court is expected perhaps as soon as next week to release its decision in a separate case involving corporate expenditures that could dramatically upend the campaign cash landscape headed into the 2010 elections.

Plus, Hasen said “a side benefit” for the administration of not appealing the EMILY’s List decision is “if EMILY’s List goes away, then there’s no conflict for Bob Bauer. I have no reason to think that’s in their calculations, but it does have this tangential benefit.”

[markomalley]

Lots of good stuff in this article:

• “It’s a challenging situation because the administration can’t finesse this: it has to make a decision one way or the other, and it’s going to make people unhappy one way or the other,” said Michael Toner, a former FEC chairman who advises Republican candidates and committees – including that of Minnesota Gov. (and possible 2012 presidential candidate) Tim Pawlenty - on election law issues.
  
• Though half the members continue to serve despite expired terms, Obama has announced only one nominee, a labor lawyer, to replace a Democratic commissioner, a nomination Feingold and McCain are blocking until Obama nominates new commissioners “with a demonstrated commitment to the existence and enforcement of the campaign finance laws.”
  
• Obama broke a promise to participate in a Watergate-era public funding system designed to reduce the role of fundraising in presidential elections, becoming the first presidential candidate to refuse the public funds on his way to raising a record-shattering $750 million, and – many observers believe – ensuring future presidential candidates also bypass the system.

Surprised that something like this would appear in Politico

[4rcane]

democrats is the party of the fat cats. $750 million?!?! Money bought his win

[OldDeckHand]

The only good thing to come out of Obama's win is his refusal of public money has put a knife through the heart of campaign finance. No Republican will ever accept public money in a nationwide contest again, irrespective of the promises of their opponent.

And, thankfully, the SC has sent some subtle signals that McCain-Fiengold may be struck down, partially or entirely.

[4Speed]

Politico wants Readers and Advertising Revenue......Especially the ones that are Abandoning the fomerly MSM in big numbers.
Who you gonna watch/read when the Alphabet networks turn out the lights ?

[Bob Eimiller]

Money and a pathetic Republican Candidate.

[dandiegirl]

No one bothered to question where this money came from. Maybe someone will have the guts to ask next time.

[bustinchops]

Zero will just sign an EO to make it all go away, even if it means emasculating his buddies over at the FEC.

[SunkenCiv]

...the FEC, the independent panel charged with overseeing campaign cash, and its partisan vote last week not to appeal a sprawling federal court ruling that could uncork a new wave of election spending by outside groups that some predict would help Republicans compete with Obama's fundraising juggernaut in 2012... Letting it stand would draw the ire of Obama's allies in the watchdog community, who are urging his administration to appeal the case, in which the Democratic powerhouse EMILY's List successfully challenged FEC fundraising and spending limits as unconstitutional and over-reaching.

Well, look who's all effed up now...

"Do you seriously think this will be an issue? There won't be any more elections. I am President for Life."

[Extremely Extreme Extremist]

If the rules were restricted to just individual American donors, Dems wouldn’t win. All of their money comes from left-wing PACs and millionaire elitists. In Obama’s case most of his money came from overseas.

[Frantzie]

Maybe the FEC will investigate where Obama’s $750 million came from. Saudi Arabia? Indonesia? China?

The FEC Is a corrupt joke like the judiciary and the govt.

[cookcounty]

"Obama’s own expressed commitment to reducing the role of money in politics."

After Obama's 2008 lying head-fake with spending limits, It is beyond belief that any knowledgable person would take seriously his "expressed commitment to reducing the role of money in politics."

[headstamp 2]

“Obama’s own expressed commitment to reducing the role of money in politics.”

Said the 3/4 billion dollar candidate.

What horse shit.