Our Common Good

I was at my desk one day last spring and the Colbert staff called—“What is a PAC.  Would you be willing to explain it on the Show?”  And I’ve been doing it ever since…with the forbearance of my law partners at Caplin & Drysdale, although as one of them put it to me,  “For the first time in 30 years, my kids care what I do, because I work with Stephen Colbert’s lawyer!”

Stephen Colbert does have a knack for taking very complicated legal subjects and hours of staff discussions and research and distilling it into 4 ½ minutes of Q&A that captures the essence of the issue, and explains it in layman’s language in a humorous, captivating way.  What every Supreme Court advocate wishes for!


We have campaign finance practices that both parties—and presidential candidates—say they dislike.  I would like to think that after this election the problems with the status quo will be overwhelmingly clear to both sides, and a consensus on a new way forward will emerge.  Unfortunately, at the moment only the first part of that sentence seems accurate—the problems are clear, but the ability to reach a consensus is not.

There is talk of a constitutional amendment. Not only would such an amendment be hard to draft, putting the interpretation right back into the hands of the Courts, but I think talk of an amendment encourages avoidance of the hard work that should be done to solve these problems. For there are legislative solutions that would be both effective, and constitutional—they just take legislative willpower. Such a reform agenda could include:

  • Defining independent expenditures so that they are truly independent-of the candidates, their agents, previous staff, close family members, current vendors
  • Requiring disclosure of the sources of funding of all election ads, no matter who runs them
  • Reform of the FEC, so that it becomes an effective, independent, enforcement agency
  • Restrictions on contributions, and fundraising, by lobbyists
  • Lobbying regulation reform, as proposed by the ABA, to ensure that people who lobby or run lobbying campaigns, become registered lobbyists
  • An effective public funding system, so that candidates for President and the Congress have the resources needed to campaign for office, and to run for re-election, without spending every moment of their working day thinking about fundraising rather than doing the work they were elected to do
These are not easy solutions, and I do not claim they are the only ones, or even necessarily the right ones. But the time has come that we—all of us—need to dedicate ourselves to acknowledging the problems with our campaign finance practices—and what they are doing to our governmental system—and resolve to correct them.
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