Friday, October 27, 2006

Former 46/47 Petitioner Speaks: Vote NO

About a month ago, Carla posted a piece discussing her opposition to Measures 46 and 47, elegantly titled "Why Measures 46 and 47 Suck." Based on the 143 comments that resulted--far more than on any other post either of us has done--that turned out to be a fairly controversial statement. If there is one ballot initiative that has turned progressives against other progressives in this season of otherwise amazing cooperation between us, it's 47.

The central problem arises from the near-universal agreement--across the political spectrum--that money in politics is causing an assortment of problems that seriously hamper democracy. Typically, the response from conservative quarters is that money equals speech, and the only proper thing that can be done is to mandate strict disclosure of funding. Liberals tend to believe that the system can be properly managed, allowing some funding but not unlimited money, particularly from PACS and corporations.

Which perhaps is why the debate over 47 has been so contentious at LO and elsewhere, because M47 tries to involve both approaches--restrictions AND disclosure--and tries to compromise on tight limits that nonetheless create disparities between individuals and certain groups. (And as concerns ballot measures, where some of the worst fraud seems to occur, no limits were even attempted).

Among the great and varied group of commenters that day was Rep. Peter Buckley of HD 5 in Ashland. Buckley was originally one of the Chief Petitioners for Measure 47, so there are few people as knowledgeable about the current state of affairs, what the initiative attempts to do, and what the ramifications might be. And as he did at Loaded O, in today's Oregonian Buckley lays out the primary fear that caused him to disassociate from M47: significant parts of would be in danger of not passing federal Constitutional muster, and thus leave us with perhaps a worse situation than before:
If each part of Measure 47's proposed system were to actually be put in place, the flow of big money would indeed be halted. The problem is that major parts of the proposed system would in all likelihood be overturned in the courts, leaving huge holes for that same big money to flow back in.

The turning point for me came when we brought in a national consultant on campaign-finance reform to talk through the proposed system with different groups in Oregon. When the direct question came up as to the likelihood of all of the different financial limits being upheld in court, the consultant's reply was this: "Maybe fifty-fifty."

I've taken that same question to a number of constitutional attorneys since then. They all agree on one thing: After the dust clears from the legal challenges, wealthy individuals who contribute to their own campaigns and special-interest groups funded by a Loren Parks or a Howard Rich who run high-dollar independent expenditure efforts would emerge victorious and would have the limits on their campaign contributions overturned. Meanwhile, the rest of us would be muzzled.

That's not real reform. [emph mine]
When Carla wrote her piece I was ambivalent on 47, mostly because I had not given it a close read. As she did, I eventually tried to parse my way through it, and while I consider myself quite good at hacking through legalese and getting to the meat of such a document, there was much I didn't quite grasp the implications of.

And that's another problem, as far as I'm concerned, especially given the measure's reliance on new and seemingly burdensome registration and reporting requirements. The argument that disclosure equals transparency and thus eliminates the problem is only true as far as the laws of disclosure are followed in the first place. And if the laws were always followed, we wouldn't need reform!

The obvious example of this principle at work is the recent memory jog of legislators that hey, they DO need to report that trip to Maui or Israel! Did the disclosure laws on those trips already exist? Yes they did--but when you rely on a lobbyist to tell you when to disclose, the system breaks down immediately. And in a larger sense, when proponents argue that the law is complex and thus the initiative text must also be complex to fully cover it, I would counter that its precisely this complexity that allows lawmakers to throw up their hands (the ones caught in the cookie jar) and say, "I thought I was complying! I must have misread the rules." If you don't believe me (and the Maui revelations don't convince you), read through a season's worth of violations concerning NCAA recruiting, and the responses of the accused. There's more feigned ignorance there than if Marilyn Vos Savant had been captured by the Khmer Rouge.*

We could all go round on this for another 143 comments, but I thought it was useful to see a cohesive argument made against M47, which will earn lots of votes on the sheer desire to see something, anything done about campaign finance gone amuck. But Oregonians have run into difficulty before, trying to solve a problem everyone agrees we have with a solution that no one really understands fully. It wasn't wise on Measure 37, and it's no smarter on 47.

Incidentally, the arguments against 46--the necessary Constitutional precursor that must pass for campaign limits to be imposed--are less persuasive to me. The worry is that if 46 passes and 47 doesn't, the door will be wide open to the Sizemores and McIntires to do something fucked up with it before progressive get their chance to think and overthink things and get that on the ballot. I suppose that's possible--but any fault for not trying to fill the gap with sensible finance legislation falls on us, and I can't blame Sizemore for my own lack of initiative [no pun intended]. At some point before any campaign finance gets passed, the OC will need to be changed, so we might as well do it now and move forward.

*this is a fairly obscure historical reference I guess, based on the extermination camps of the Khmer after the Vietnam War, but you guys are smart so I'm not afraid to include it.