Campaign finance, politicians and judges

Sooner or later, the issue will have to be addressed


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Brad Cook, a shareholder in the Manchester law firm of Sheehan Phinney Bass + Green, heads its government relations and estate planning groups. He also serves as secretary of the Business and Industry Association of New Hampshire.

I know nothing about the tax issues that have faced 2nd District Congresswoman Ann McLane Kuster or GOP Chairwoman Jennifer Horn, a former congressional candidate herself.

Recently, there has been much made of the fact that Kuster’s property taxes were paid late (but paid in full, with interest) and that Horn has an IRS tax lien and problem because of unpaid taxes in the past.

There is something else these two people have in common: Each had to run a political campaign.

Unfortunately, political campaigns are very expensive, grueling and, in their last stages, generally expensive to the individuals running for office. While it is natural to start a campaign saying that there will be no personal money put in over a certain amount, candidates invariably break that pledge to themselves when it looks like “only a few more thousand dollars” will make the difference between victory and defeat.

When this happens, bank accounts are drained, cash expended, mortgages incurred, retirement plans liquidated -- all to fund one more set of advertisement purchases on television.

My suspicion is that our lack of a rational campaign finance system led both Kuster and Horn to spend the available cash on campaigns, putting them behind the eight ball in terms of cash flow.

One anomaly in the discussion was an attempt to criticize Kuster for having a cash flow problem when her assets, listed on her disclosure forms, indicated a substantial net worth. That is the height of illogic, since hard assets making up her net worth largely were the real estate that incurred the taxes! As anybody knows, having assets and cash flow are entirely different things.

In any event, Kuster paid her taxes with interest, so the communities involved not only received the tax money they anticipated, they received extra. Sounds patriotic to me.

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Meanwhile, there is another effort in the Legislature to implement a voluntary system of public financing for campaigns.

A number of legislators have introduced House Bill 250, which basically reintroduces a scheme proposed a number of years ago by a commission which this writer chaired to allow voluntary contributions to a fund that would finance certain state office elections. It would allow contributions from individual New Hampshire voters only to pay for campaigns and would not be mandatory, but those candidates agreeing to participate would abide by rules, regulations, spending limits and the like in return for limited amounts of funding.

The bill is more symbolic than real, because it is not accompanied by any funding mechanism and would not take effect until the fund reached a certain level. Nevertheless, the presence of money in politics has become overwhelming, and even a symbolic attempt to do something about it would be a good start.

Speaking of campaign funding, a recent book by Jeffrey Toobin, “The Oath,” makes for very interesting reading. Toobin traces the parallel careers of Chief Justice John Roberts and President Barack Obama, bright products of the Harvard Law School with differing philosophies on the Constitution, and the tension between the judicial and executive branches of government, especially at the top.

Toobin writes about the present makeup of the court, the confirmation process, the personalities and philosophies of the justices and also talks about the significant opinions rendered by the Roberts court.

On the subject of campaign finance, the process of the Citizens United case -- which overturned restrictions on corporate campaign contributions -- is fascinating. It started as an attempt to allow a particular campaign ad prior to an election, seemingly violating the prohibition on that kind of advertising by corporations close to an election, and the Supreme Court initially was going to hold by a 5-4 vote that the application of the law to the particular ad was illegal.

In the face of a strongly worded draft dissent, the majority asked for the case to be reargued on the basis of whether all corporate campaign finance regulation violated the Constitution and, in a stunning decision, invalidated the entire corporate finance regulatory scheme, to the horror of the four dissenting justices.

The book also looks at the change in the judicial view of the Second Amendment -- creating a personal right to bear arms -- the treatment of the Commerce Clause, the process of upholding Obamacare. For attorneys, it is a real busman’s holiday!

What is fascinating in all this is the difference between “conservatives” in judicial and political context. In the former, a “conservative” justice follows precedent. In the latter, a “conservative” tries to change the law to fit his or her political philosophy. The so-called conservatives on the Roberts court, hiding behind the “original meaning of the Constitution,” are rewriting the law and, at the same time, the Constitution itself.

Sooner or later, money and politics will have to be addressed, as will the proper balance of philosophies and degree of activism on the Supreme Court.

Brad Cook, a shareholder in the Manchester law firm of Sheehan Phinney Bass + Green, heads its government relations and estate planning groups. He also serves as secretary of the Business and Industry Association of New Hampshire.


 

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