As the 2012 presidential election draws ever closer, ProPublica’s Marian Wang and Lois Beckett have been examining two very different facets of campaign finance – FEC regulation of super PACs and the new legislative lines that are being drawn in all of our states. They join the podcast this week to discuss their respective reports and how both of these issues could influence the race for the next president.
Read the full transcript below, and listen to all of ProPublica’s podcasts on iTunes.
Mike Webb: Hi, I'm Mike Webb, and welcome to the ProPublica Podcast. I'm going to assume that most of you know that we've got a presidential election coming up next year, and already millions of dollars are being spent to get candidates elected. However, who is spending the money, and why, is not always public information.
Joining us on the podcast are two ProPublica reporters who've been trying to answer those questions, particularly as it relates to super political action committees and redistricting.
Here with us first is Marian Wang, who explored why the Federal Election Commission has been gridlocked and unable to write rules in key areas of campaign finance. And joining us later is Lois Beckett, who took a look at a specific type of gerrymandering and whether it's constitutional.
Welcome to the podcast, Marian.
Marian Wang: Thanks, Mike.
Mike: Well why don't we start with, "What is the Federal Election Commission, and what does it do?"
Marian: The Federal Election Commission is essentially an agency meant to interpret and enforce campaign finance regulations and the law as well.
It, essentially, is six commissioners – three Republicans and three Democrats – so naturally it's prone to some level of gridlock, just because it takes four commissioners to get something done, which is not necessarily a bad thing.
Mike: OK, and you wrote about the Supreme Court Citizens United case, that struck down some of the restrictions in campaign finance laws. Has the FEC dealt with that yet?
Marian: Well, the FEC has tried, to their credit. They've tried to kick off, twice, the very first process of the rule making, which is to announce that, "Hey, we're intending to change the rules to bring it in line with Citizens United, and we're sort of thinking of changing it in this area," and asking for public comment. That's the first step.
They deadlocked twice this year trying to even put it out for public comment, so no. There are still some outdated regulations on the books, and the FEC has essentially said, "OK, we're not enforcing those because of Citizens United."
The Republicans wanted to actually get rid of them on the books. The Democrats knew that they had to repeal them as well, but also wanted to discuss new disclosure rules because the Supreme Court had also affirmed that disclosure was important.
Mike: So what has to happen for this to move forward at all?
Marian: They say they want to make it work, and that...
Mike: Both parties.
Marian: Both parties, right. The Commission has said, "We hope to resolve this soon." But it takes four votes to actually get something done, so they're stuck in neutral at the moment on this particular issue.
Mike: OK. If there aren't any specific rules to what they can and can't do, then are PACs and everyone else basically free to do whatever they want?
Marian: Well, there are pretty clear rules in the realm of traditional PACS and candidate committees. Those restrictions are still intact. Citizens United did not open up the door for direct contributions to candidates or their campaigns from corporations or unions, all of that.
What it did do was swing the door open in the area of uncoordinated spending – independent expenditures – that are supposed to be not coordinated at all with the candidates.
That's a big area where there are some rules that have been held over, in terms of these independent expenditures should be reported and disclosed, but there are definitely a lot of questions remaining about what groups can do and cannot do, especially in this area.
I talked to a lot of election lawyers who essentially said, "Well, as a lawyer, my advice has to be that the FEC hasn't signed off on you doing this,” but given the state of the FEC right now, and the fact that they agree on so little, it depends on how the client takes that. And different clients react differently. The ones who are more risk‑averse and really want to make sure everything they do is completely legal and completely OK, they will not do it. But there are some groups that may be more aggressive and think, "I'll take the calculated risk that no one's going to go after me."
Mike: It seems like a tough situation because so many candidates have former advisors who are running these super PACs and they're not supposed to coordinate but yet, they know each other's thinking and how they want... their campaign strategy, so it seems like it's something that the FEC is going to have to deal with at some point.
Marian: Right. Coordination is a huge thing. I think last year, in the 2010 midterms, super PACs, these groups that were basically devoted to just doing independent expenditures, that's all they do is spend independently of candidates.
Mike: What does that mean?
Marian: They will buy ads, produce ads in support of a candidate or directly attacking a candidate, but it's not coordinated at all.
Marian: That is a big thing that now, in this particular election cycle, we started seeing a lot of groups that are specifically pro a particular candidate, which is sort of new. Often, like you mentioned, started by people who left the candidate's campaign or are very close to the candidate and have now started these groups to support them, but are not supposed to be coordinating.
There are tons of questions around coordination and whether the FEC needs to jump in there and clarify its rules.
Mike: Right. Is part of the problem just that the White House can't get new commissioners on the FEC?
Marian: Well, the White House has only tried once to replace a commissioner. There are five right now that are on expired terms, and that's five out of six. There hasn't been new blood on the Commission in a while.
I think that, because there isn't a lot of new blood, it means that these people that can't compromise or can't reach any sort of consensus to move forward, the same group is just going to keep disagreeing. It definitely does prevent there from being the possibility of new commissioners who might find some more consensus with each other.
Mike: And with the way it's set up, three Democratic members and three Republican members, it's just always going to... Unless they can find a way to work together, be bipartisan...
Marian: Well, I would say that the disagreement here is probably more philosophical than partisan. Almost everyone I talk to says that. The commission does split on partisan lines at the moment, with the Republicans being more deregulatory and the Democrats tend to be more pro‑regulatory or want stronger campaign finance laws.
But there are Republicans out there who definitely believe in stronger campaign finance laws and stronger campaign finance regulation, but they just don't happen to be on the FEC right now. Really, the thrust of the shift toward deregulation did start at the Supreme Court, it's just that the FEC, at the moment, has not really quite stepped up and figured out how it's going to effectively enforce campaign finance law as it currently is, given those rulings.
Mike: OK. Well, thank you very much for joining us, Marian.
Marian: Thanks for having me.
Mike: OK. Joining us now is Lois Beckett. Why don't we jump right in. Lois, what is partisan gerrymandering?
Lois Beckett: So gerrymandering is this broad term that basically means anything that you can do to a district that makes it unfair or that biases it towards one politician or another.
When people talk about gerrymandering, they usually talk about racial gerrymandering which means, often, stuffing a lot of minority voters in one district so that they will have a representative, but only one. Or, alternatively, taking a group of minorities and splitting them up between so many different districts that they can't have a real impact in any of those districts.
It's very clear because of the Voting Rights Act that racial gerrymandering is illegal. Courts up to the Supreme Court have routinely struck down districts for being racial gerrymanders.
But partisan gerrymandering is a little bit different because it means using these same techniques, so packing problematic voters all into one district so nobody else has to deal with them, or...
Lois: [laughs] Problematic. Or cracking them between a lot of different districts so if one party is in charge of the redistricting process, as they usually are, then they can use these tactics to keep the opposition party down and to create districts in which they're most likely to win. So safe districts for their party.
Mike: Why has it been so difficult to bring the legal challenges to districts that are drawn in that way?
Lois: The Supreme Court has a really mixed record on partisan gerrymandering. There are definitely Supreme Court justices who think that it's totally unconstitutional, and that it's really appalling that most redistricting that happens in the United States is done on a partisan basis, and ends up really benefitting particular politicians and particular parties, but not benefitting voters.
But it's a little bit tricky because there is no Voting Rights Act for partisan politics and there are Supreme Court justices who just really don't think that the 14th Amendment and equal protection of the laws applies to Democrats and Republicans as separate citizens. That's the first thing that's tricky about partisan gerrymandering.
Mike: You noted that former Supreme Court justice John Paul Stevens has some major problems with the way districts are drawn. What did he say?
Lois: Stevens has been one of the most long‑standing and really fierce defenders of the idea that partisan gerrymandering is wrong and that it just shouldn't be allowed. He looked at the most recent redistricting plans for Maryland, which heavily benefit Maryland Democrats, at the expense of Republicans, and he called the plans "outrageously unconstitutional."
Mike: He offered his own solution to it, did he not?
Lois: The tricky thing is, it might seem appealing to buy into the idea that partisan gerrymandering is wrong and that it really just shouldn't be allowed, but the tricky part comes into figuring out what is a partisan gerrymander?
What counts as a district that's drawn inappropriately to advantage or disadvantage a particular political party? This is something that the Supreme Court is even more divided on.
The Supreme Court has, in a couple of cases, affirmed the idea that partisan gerrymandering might violate the equal protection clause of the 14th Amendment, but they have never been able to figure out, "OK, how do we actually implement this? What is the standard of proof that you need to go to a court and say, 'I have been unfairly gerrymandered in a partisan way'?"
And that's something that nobody's been really able to figure out. Even people who really strongly believe that this should be illegal haven't come to an agreement on how to go about it.
One of the basic reasons for this is that, if you look at all of the different principles that you might use in trying to decide what makes a fair district... If you have a constitutional right to have a fairly drawn district, what does that really look like?
It's clear that the districts should have equal numbers, right? One person, one vote. One district shouldn't have 100 people and the other district have 20 people because then those 20 people have, proportionately, a lot more say in what their legislator does.
One of the other principles that people talk about in redistricting is that you should keep communities of interest together. So if you keep together a group of people who might have similar interests, live in similar ways, might be a good group of people to elect someone that they can all feel represents them, that might end up lining up along party lines.
The problem you have is that you don't want to define a district in a way to say, "Oh, that's a partisan gerrymander," when in fact it's just a good district that represents a community of interest.
And this is the big problem with redistricting, that it's sometimes really easy to see when a district has been drawn in the wrong way, when there's clearly partisan interests or it's benefiting a particular person. It's pretty easy to say that's wrong, but to understand what a fair district looks like is a lot more complicated.
Partisan gerrymandering falls more into that category. How do you know what's really fair?
Mike: And a fair district has never been defined?
Lois: There are a couple of things that are pretty standard. Equal numbers, then there's the idea that districts should be compact and contiguous. They shouldn't be really squiggly and all over the map, but these are standards that developed when transportation was a lot more difficult, and when being able to ride a horse, perhaps, from one part of the district to another might matter a lot more than it does now.
There's also a lot of questions about whether now, in the way that we live in the world now, how relevant locality is and how similar people are to those who live really close to them.
That gets us into even more philosophical questions than the ones that most politicians are dealing with now, but is worth thinking about, especially when redistricting becomes really theoretical. What does it mean to vote in the community, and what really defines communities these days?
Mike: OK. Well thank you so much for joining us to talk about this.
Now, for our Officials Say the Darndest Things Tumblr Quote of the Week. "For every one person that comes forward with a false accusation, there are probably thousands who will say that none of that sort of activity ever came from Herman Cain."
As you can guess, Herman Cain said that responding to a question about the four women who have accused him of sexual harassment.
OK, that's if for this week's show. Thank you to Minhee Cho for producing, to you for listening, and for ProPublica I'm Mike Webb. We'll catch you next time.
Transcription by CastingWords