Obama Campaign GC Robert Bauer '76 Criticizes "Anti-Reform" Movement
Robert Bauer ’76, general counsel to President Barack Obama’s re-election campaign and a former White House counsel, told a Law School audience in October that an anti-reform movement has been dismantling rules that aim to protect confidence and integrity in government.
“I’m very troubled that there is an extremism in the opposition to reform, a sort of reckless and doctrinaire quality that is going to go a long, long way if it is taken to its logical conclusion to further undermine the fragile and critical trust the people have in their government and in the quality and effectiveness of self-governing,” said Bauer.
For roughly three decades after the Watergate scandal, Bauer said, there generally was bipartisan support for political reforms. Yet that support has frayed in recent years, particularly since the enactment of the McCain-Feingold campaign finance reform law in 2002 that limited soft-money contributions by corporations and unions.
A number of challenges to that law have been brought to the U.S. Supreme Court, he said, and many of those challenges have proven successful. One provision of the law sought to ban “sham issue advertising,” or political ads paid for by corporations or unions that circumvented longstanding restrictions by not being explicit about their electioneering but unmistakable in their intent.
“Most of you would recognize ads of this kind as the ones that say various unpleasant things about Bob Bauer and then close by saying, ‘Call Bob Bauer and tell him to stop being a bottom-feeding slimeball.’” Bauer said. “Most people thought broadcasting something like that before an election would narrow Bob Bauer’s election prospects.”
The Supreme Court significantly narrowed that provision to only advertisements that run immediately before an election and that referred to a particular candidate, Bauer said.
Even more notably, he said, the Court ruled in Citizens United v. Federal Election Commission that corporations and unions may independently fund election-year advertising, so long as the ads are not coordinated with a candidate’s campaign.
“It was a radical departure from understandings of the law,” he said.
The issue of voting access is also changing, Bauer said, with the case for improved access to the polls now competing with the case for more limited access. “Voting rights claims vie for attention with voting fraud claims,” he said.
“Around the country … state legislatures enacted or are considering passing laws that limit access to the polls in a variety of ways, through voter identification requirements, photo ID requirements, restrictions on third-party voter registration drives, limitations on early voting and in other ways,” he said. “It is fair to say that reform has come under direct attack or it’s been redefined, as in the case of voting rights, to be something quite different than we’d imagined it to be.”
In the past, government reforms have been backed by advocacy groups such as the League of Women Voters and Common Cause. Recently, he said, a number of new organizations are emerging to oppose reforms.
“We now see, springing up across the country, anti-reform organizations advocating against these reforms, attempting to show that government, in the enactment of these reforms, is either infringing intolerably on free-speech rights or doing the bidding of partisans or helping officeholders to entrench themselves in office,” he said.
Disclosure of political spending was once a “blessed refuge from disagreement,” Bauer said, in which both parties agreed that it was useful for transparency in government. Now, he said, the value of disclosure has come under attack, viewed by some as a way to vilify and muzzle corporate interests.
As an example, Bauer cited the failure of the Disclose Act of 2010, which was proposed by Democrats in the wake of Citizens United to require corporations and interest groups to disclose their political campaign expenditures.
“The debate was just marked from the beginning to end with suspicion about the purposes of disclosure and what lay behind the statute,” he said.
Government reform, Bauer argued, is too important to be swept up in the polarization of politics.
“We cannot make this out to be just one more brickbat that is thrown back and forth between one side to the other,” he said. “We cannot turn reform into something that is almost by definition disqualified because it is the government that ultimately enacts reforms, sometimes under public pressure, sometimes under the guidance of its wiser leaders.”
In addition to Bauer’s work for Obama’s re-election campaign, he also is founder and partner in the Perkins Coie political law group and general counsel to the Democratic National Committee. His talk, “The Law of Politics: Under Siege and In Transition,” was sponsored by the Student Legal Forum.