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Unconstitutional and Unfair: The Silly VA Law that Could Sink Cuccinelli.

by: Goldmanusa

Sat Jan 05, 2013 at 06:22:49 AM EST


by Paul Goldman

On one level, it would be considered poetic justice: a "good government" law championed by what conservatives derogatorily call "do gooder liberals" might sink Ken Cuccinelli's gubernatorial campaign before it gets started. With the first financial reporting of the 2013 gubernatorial campaign due by January 15, I got to thinking about Virginia Code Section 24.2-954. What does this statute do? It bans campaign fundraising by members of the General Assembly and statewide officials while the state legislature is in session.

Almost every legislator voted to enact the law in 1997. Then-Governor George Allen signed it.
Since then, the law has played no meaningful role in statewide elections. Many other states have similar statutes. A quick check found no objection to the law from those state and federal judges having occasion to consider its legality.

But there has been no definitive challenge to this fundraising ban. There should be. The law, as applied in 2013, is blatantly unfair to Attorney General Ken Cuccinelli, along with Democratic Senators Ralph Northam and Mark Herring, both running in the June Democratic primary for LG and AG respectively. It violates the First Amendment rights of all three men. However, the practical dynamics of a statewide Democratic primary will effectively provide no permanent advantage to their opponents, both of whom hold no elective office and therefore are not disadvantaged by Section 24.2-954. The primary isn't until June: the GA will have been out of session by then for several months. Moreover, any candidate in a low vote Democratic primary who expands a lot of money during the GA Session in order to take advantage of this unconstitutional situation - one candidate can raise money but the other can not - deserves to lose, it is bone-head waste of money.

This, however, is not necessarily the case in the race between Terry MAC and Kenny C. The only time the law might have come into play in a Governor's race was 2001. Democrat Mark Warner didn't hold any office; his possible opponents at the time where the sitting LG and AG. But Warner didn't need to spend any big money; he had a 10% point lead and the Republicans gave us an easy path to victory. Besides, the two Republicans didn't have major fund-raising potential this early in the 2001 cycle.

This is not true in 2013.

So let's look at the situation.

Goldmanusa :: Unconstitutional and Unfair: The Silly VA Law that Could Sink Cuccinelli.

As a matter of political strategy, logic says Terry MAC has been working to use the upcoming reporting period as a way to make a "statement" about his viability for governor. In political terms, one of the reasons he won the Democratic nomination without a fight is his demonstrated prowess as a campaign fundraiser. While the general public could care less about this money raising contest between candidates, the fund-raising number will help shape the press "spin" of the race and also perceptions among the power players.

So look for Terry MAC to try and report "blow out" totals. In that regard, all the pressure is on the T-man, not the K-man. The insiders know Cuccinelli can raise a boatload of money in the end.

All true in the long run perhaps: BUT WHAT ABOUT THE SHORT RUN?

In this past presidential election cycle, there is some evidence to confirm data from previous election years: namely, the political advantage gained by one candidate hugely outspending the other EARLY IN THE CONTEST to either build up his/her "favorables" as they are called in the polling business, or raising the "unfavorables" of his or her opponent.

In the political trade, the latter is known as "defining" your opponent. Among many experts in the political world, the Obama campaign is given very high marks for spending heavily on painting Romney with a negative brush. Conversely, the Mittster's campaign is given very low marks for not responding to the Democrat's attack.

My own view: The conventional wisdom is correct this time. Romney made a big mistake. Was it fatal? There is no way to know for sure. Moreover, given the 24/7 nature of a presidential campaign, where everything is sliced and diced in media big and small, the actual effects of this mistake on the final outcome is not a useful comparison with a statewide race for governor in 2013.

The better way to use the 2012 campaign experience is thus: If Obama had been running for governor, what would have been the effect of his being given the chance to spend all that money defining Romney without any pushback?

Answer: Possibly fatal for sure. There simply isn't enough "free" press coverage and interest in a mere statewide campaign for governor. The TV ads and the like have a far greater potential to determine the winner if one side makes a bad strategy decision in that regard.

SO NOW COMES 2013 - and a huge opening for Terry MAC. At least on paper. For the next two months, Terry can raise millions: and Cuccinelli can raise squat. You can't spend what you can't raise, although I suppose there might be a way to go into debt if a bank would loan you the money: but is that a campaign contribution? It probably would be.

Meaning: Terry can raise and spend millions if he wants, while Cuccinelli can only defend with the money he has on hand once the GA session begins.

Until we see the campaign reports, we don't know the level of the K-man's campaign resources. BUT WE CAN SAFELY MAKE THIS ASSUMPTION: It will not be enough to even the playing field with Terry for the next two months. Not even close.

I have played the chess board from all sides: go negative, go positive, go half and half, go dark as they say, or go huge in one direction or another to try and set the parameters of the campaign. One can make a plausible argument for all of the above. But I will leave that to those being paid to make such decisions.

Instead, let's focus on what we know for certain:
It isn't fair, nor constitutional, for a state law to deprive any Virginian, whether you support them or not politically, of their basic First Amendment rights of core political speech, which in our system requires - as a practical matter - access to a lot of campaign cash. That's reality. Basic constitutional rights in this area likewise include a legal commitment, where possible, to a level playing field.

As best I can tell, the lower courts have upheld the fundraising ban during legislative sessions on the mythology it is part of a legitimate state interest to remove the appearance of legislators being influenced on voting decisions by those giving them money. Thus banning lobbyists and others from giving them contributions during the Session makes these lawmakers more likely to do the right thing. So goes the theory.

I ask you: Have you ever heard such childish nonsense? Does anyone who has not had a lobotomy actually agree with such drivel, do they think we don't have basically a pay for play system at the GA?

Section 24.2-954 is purely and simply "feel good" legislation. As a practical matter, it just changes the date of the fundraisers and the timing of campaign contributions. In terms of "fixing" the problem, it is a joke. It has had ZERO impact on whatever the law was intended to fix.

BUT HERE IN 2013, IT COULD HAVE A HUGE IMPACT ON THE GOVERNOR'S RACE.

By resigning, of course, the AG would free himself from the fundraising ban. As I have written, his decision to resign or not resign will be a key political test for him for other reasons. But a person should not have to resign from office in order to avoid the unlawful, unfair and unconstitutional consequences of a state law. That makes a mockery of our legal system.

What would I do if I were Mr. Cuccinelli?  This is not an easy call, leaving aside the resignation option. He could continue to raise money, but then he is violating the law and would have to challenge the statute after being so charged. That is lose-lose.

He could seek an injunction, but the barrier to success, namely showing you are very likely to prevail on the merits, is way high especially since if there is a VA case upholding the law.  

He could call on Terry to abide by the same prohibition; it would be a slam dunk winner if he could get Northam and Herring to join in the call. But how likely is this scenario? Worth a try but not likely given the practical politics involved.

He could ask the House of Delegates to pass emergency legislation lifting the ban on the statewide races immediately. That takes a super majority to enact. He would need substantial Democratic support. Would he get it? Probably not. But it might be worth some political points.

Moreover, if Democrats blocked it, this would set up the right climate for a Cuccinelli to file a case in federal court in Richmond should Terry start spending big on TV, especially if the T-man's campaign ran "negative" ads against the K-man.

At that point, the case would come before the federal courts in the best posture for Cuccinelli, plus it would be front page news and a big story on the TV. Such optics might greatly undercut any advantage Terry's campaign might think they could get: it might even backfire on Terry. People have a sense of fairness. The situation would not be fair. Everyone would know that instinctively.

ON THE OTHER HAND: If Terry ran only positive, feel good ads, the legal climate might not be all that favorable to Cuccinelli. He would still have the same constitutional claims, but the facts of the case would be far different. It might not seem unfair at all, just part of the process, he knows the rules: he will get his chance to run the same kinds of ads in a few weeks.

BOTTOM LINE: The fund-raising ban has the good intention of trying to make money - what Jesse Unruh famously called the  "mother's milk of politics" - have less of an influence on key political decision making. Instead, it may do the the opposite big time here in VA in 2013.

In terms of political strategy, if Terry MAC believes he afford a big, early flight of TV, then the temptation to do it is going to be large. Who could blame him really?  At which point, assuming Ken Cuccinelli has not resigned, then the AG will almost surely have to fight back with a lawsuit, either by his campaign, or the GOP.

Normally, the VA AG defends state laws. But it would not be possible for Cuccinelli to defend a law that he was either directly or indirectly trying to have overturned.  So that would prove a little embarrassing. But the larger issue would be: what would the courts do? It would depend, in some measure, on how the case came before the judges, which federal judge even. Could those challenging the law get an injunction? The bar is high. But without an injunction, by the time the court might rule the law unconstitutional, the damage would be done.

ON THE OTHER, OTHER HAND: Pro-Cuccinelli SUPER-PACS might fill the void for the AG. MEANING: This "feel good" VA law would have the practical effect of INCREASING, NOT DECREASING, THE ROLE OF SPECIAL INTEREST MONEY!

The Obama campaign is just the latest to show that an early flight of negative ADS might be a game-changer.  But either way, this much is true: a "feel good" law that has no real practical effect and would, as applied, violate the First Amendment by any reasonable standard in the VA governor's race should be struck down. You either have the courage of your convictions, or you don't. I will take the First Amendment any day.

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