Begin v. Carcieri: The Failure of Campaign Finance Reform

The Board of Elections investigation into the funding of Donald Carcieri’s 2002 gubernatorial campaign advertising continues. According to the subhead of Scott Mayerowitz’s story in today’s Projo,

Elections Board Chairman Roger N. Begin says special prosecutor H. Reed Witherby will have the power to subpoena records and to compel testimony.
The news, of course, is that the Governor Don Carcieri himself may be subpoenaed.
Witherby has already found (as a prosecutor, not as the final judge in the matter) that the First Amendment and federal law are not relevant, and made several findings related to technical financial issues concerning money transfers. So what is left that may require subpoenas? According to the initial report issued by Witherby, further investigation relates to section 17-25-10.1(c) of Rhode Island law…
Expenditures made by any person in cooperation, consultation or concert with, or at the request or suggestion of, a candidate, the candidate’s authorized political committees, or their agents shall be considered to be a contribution to the candidate.
Witherby and the Board of Elections must determine what constitutes “cooperation, consultation, or concert”. Having to answer this question shows everything that is wrong with campaign finance reform law.
According to Witherby’s report (which provides an excellent primer on the current state of campaign finance reform), campaign finance related speech restrictions have been justified because…
the [Supreme] court reasoned that while both contribution and expenditure limits implicate First Amendment freedoms of speech and association, limitations upon contributions impose a relatively minor burden upon speech and associational rights, and the governmental interests in preventing corruption and the appearance of corruption are stronger in the case of contributions than they are in the case of independent expenditures.
By this standard, campaign finance reform has already failed.
Earlier this week, the campaign of Senator Lincoln Chafee was asked if they approved of advertisements being run by the National Republican Senate Committee on their behalf. Here is their answer
Citing federal campaign-financing rules barring any coordination between his own campaign and the national-financed ad campaign committee, Chafee also would not say if he had discussed these concerns with the national committee.
His campaign manager, Ian Lang, said: “The senator has had no interaction with the NRSC about these ads, nor can we by law.
Senator Chafee’s answer shows how low the standard for “cooperation, consulation, or concert” may be. If Chafee had told the NRSC that he didn’t like the ad, and another was run in its place, would the new ad be considered the result of “cooperation, consultation, or concert”? In the case of Governor Carcieri, could a fact-checking inquiry like “are you still planning that big audit”, or even the sharing of basic information like “we’re planning to run an ad this week” be considered coordination?
A great many conversations between our elected leaders and their supporters are now potential violations of the law. That is a huge burden on associational rights. Perversely, the law can be interpreted to mean that you may not be free to spend money to support a political candidate if you actually take the time to interact with that candidate.
If the standard for “cooperation, consultation, or concert” turns out to be as low as it seems, than changes to the current incarnation of campaign finance law are needed to protect our basic political freedoms of association and speech.

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