“Bob Bauer doesn’t have the DNA to be an ethics czar,” says Ellen Miller, executive director of the Sunlight Foundation.
When the Obama administration announced last month that Norm Eisen, the specially appointed White House “czar” for ethics and transparency, was leaving to become the ambassador to the Czech Republic, advocates of campaign finance reform and “good government” groups in Washington took the news hard. They describe Eisen’s tenure as a “dream come true,” and worry that no one will adequately fill his shoes.
[Congress1] When they learned two weeks ago that White House counsel Bob Bauer would take over for Eisen, that sadness turned to angry disbelief. “Bob Bauer doesn’t have the DNA to be an ethics czar,” charges Ellen Miller, executive director of the Sunlight Foundation, echoing a complaint common among advocates for greater transparency in government. “He’s always defended the ability of special interests to put money into campaigns.”
Indeed, Eisen has a history of working with government watchdogs, and his appointment solidified the faith those organizations had in President Obama’s commitment to transparency and ethics. But Bauer, a longtime Democratic lawyer, has advocated against campaign-finance reform, and he already has a primary, demanding full-time job as White House counsel. His track record is making good government groups nervous, though they disagree about how Bauer will act in his new role — and what his appointment will ultimately mean for transparency.
News that Bauer would take on Eisen’s ethics portfolio caught advocates unaware, and sent them reeling. “I don’t know [how it happened], and I am very close with Norm Eisen, and I can’t get a straight story,” says Miller.
Their most immediate concern is that the point-person on ethics will no longer focus primarily on ethics. “I’m quite confident that Bob already has very full days and I’m not sure that these ethics and transparency issues will get as much attention as I hope and wish,” says Paul Ryan, associate legal counsel for the Campaign Legal Center.
Although Steven P. Croley, a law professor at the University of Michigan, is expected to join Bauer’s ethics team, Bill Allison, who works for the Sunlight Foundation with Miller, agrees: “You’re going from someone who had this issue as his full plate to someone for whom it will be a garnish, so it’s not going to get the attention it deserves.”
Aspects of Bauer’s extensive track record as a lawyer also worry the good government groups. When practicing for the firm Perkins Coie and as counsel to the Democratic Party committees, Bauer advocated against campaign finance regulations and represented politicians who faced ethics charges, such as former Rep. Tony Coelho (Calif.) and former Sen. Robert Torricelli (N.J.). For reformers, his choice of clients and cases casts doubt on whether he will be able to devote himself fully to upping standards in the White House.
White House spokesman Ben LaBolt has insisted that “there’s no cause for concern here,” and that Obama’s record “should offer assurances that these issues will remain at the top of his agenda.” As for Bauer’s past clients and cases, a source familiar with Eisen’s practice argues that it’s simply incorrect to deduce Bauer’s or any lawyer’s orientation from them — even Norm Eisen, the source notes, defended his share of white-collar clients accused of criminal wrongdoing while in private practice. But not all advocates are convinced by this logic.
“Bauer has used his expertise as an attorney to push the ethical limits as far as possible and try to keep people who clearly did unethical behavior out of trouble,” argues Allison. “And by pushing the limits of how these rules are interpreted, he’s paved the way for more unethical outcomes.” Unlike Eisen, who was popularly described as “Mr. No.” around Washington, “Bauer cares about doing the things you can get away with.”
According to campaign finance reform advocates, Bauer’s biggest transgression comes from his time as lead counsel for the Democratic Congressional Campaign Committee in the late 1980s and early 1990s. It was then that the national party committees exploited a series of loopholes allowing the parties to raise unlimited amounts of “soft money” from corporations and individuals. “It took us ten years to reverse much of the damage that [Bauer] wrought with soft money loopholes,” says Craig Holman, a legislative representative for Public Citizen. “It was his arguments before the [Federal Election Commission] on behalf of the Democratic Party — that was where the soft money loophole first started breaking. And once he got that little hole in the dam, then all these election lawyers just ran with it.”
The “soft money” loophole — which let the national parties use unlimited funds for certain costs unrelated to national elections — had existed since the late 1970s. Under Bauer’s watch, both parties started to exploit it, in earnest. Soon enough, Democrats and Republicans were using cash from corporations on voter-registration drives, get-out-the-vote campaigns and advertisements on specific issues. All of these ultimately supported the very national candidates barred from receiving such donations.
Not everyone thinks it’s fair to accuse Bauer of being a scheming mastermind, however. “The question makes it sound as though some people are blaming Bob for the emergence of soft money,” says Rick Hasen, professor of law at Loyola Law School in Los Angeles. “He’s a great lawyer but that’s an exaggeration. When you work for a client regulated by the FEC, the goal is to have as little regulation as possible for your clients so they can work with as much flexibility as possible.”
But Bauer also worked on the issue more recently. In 2002, when Congress considered the Bipartisan Campaign Reform Act that sought to close the soft-money loophole, senators and advocates accused Bauer of attempting to undermine the legislation. “Almost every time senators come up to me with a problem with the bill they said they met with Bob Bauer,” Sen. Russ Feingold (D-Wis.), one of the bill’s cosponsors, grumbled at the time. “I don’t know who led him to do it, but Bob Bauer has more influence on this bill than any Senator.”
After BCRA passed, Bauer again drew the ire of watchdogs for trying to undermine the legislation, in the courts and in the 2004 election. He took heat for working simultaneously for Sen. John Kerry’s (D-Mass.) presidential campaign and the liberal 527 group, America Coming Together — the implication being that the 527 might be coordinating with the Kerry campaign. At the very least, Bauer’s affiliations granted him little moral leverage in calling out conservative 527s, like Swift Boat Veterans for Truth, which were busy attacking Kerry with dubious tactics.
Even after such groups tarred Kerry’s campaign and met with little reprisal, Bauer wrote that rules barring coordination between 527s and political parties and candidates reflected little more than “a distrust of politics, even a disdain for it.” He later argued before the Senate Rules and Administration Committee that there was little point in attempting to reign in spending by 527s with additional regulation. “If it’s not done with 527 activity as we have seen, it will be done in other ways,” he testified. “Without tipping my hand or those of others who are professionally creative, the money will find an outlet.”
Conflicts of Interest
Good government groups also point to Bauer’s apparent conflicts of interests with the Obama administration’s stated goals. When he signed up to assist Obama’s presidential bid, he was intimately involved in his client’s decision to forgo public financing in the general election — a system Obama declared broken and promised to fix at the time, but has since done little to address. And when he replaced Greg Craig as White House counsel in 2009, Bauer was one of a handful of employees granted a special waiver to the new ethics rules established by Obama that prohibit officials in the administration from working on issues affecting their former clients for two years.
The most obvious — and most awkward — potential conflict of interest that Bauer faced in his new job, however, concerned a case he had filed way back in 2005 on behalf of EMILY’s List, a national organization dedicated to electing pro-choice Democratic women to office, against the Federal Election Commission. While EMILY’s List lost their initial challenge, Bauer ended up winning a sweeping federal court ruling on appeal late last year that struck at the core of campaign finance laws — the very laws the Obama administration was promising to shore up.
Some of the campaign spending limits struck down by EMILY’s List v. FEC have now been outdone by court cases stemming by the Supreme Court’s decision in Citizens United. For this reason, Rick Hasen argues that the ruling won by Bauer was “radical,” but only “in the pre-Citizens United world.”
But while that might be true as far as campaign spending limits go, Paul Ryan notes that the EMILY’s List decision still holds major weight when it comes to another Obama pet issue: campaign finance disclosure requirements. “The White House is saying we need to pass the DISCLOSE act, but one of the reasons we have weak disclosure is the advocacy Bauer performed on behalf of EMILY’s List,” Ryan points out.
“The case very specifically invalidated a [FEC] regulation dealing with when money received by a political committee is considered a ‘contribution,’ which is a very important foundational element in campaign finance law and one that governs disclosure requirements,” he adds. “EMILY’s list successfully challenged and undermined that aspect of it.”
Indeed, when the DISCLOSE act was introduced in congress this spring, opponents of the bill were quick to point out that even Bauer, the White House counsel, had voiced concerns about the desirability of campaign finance disclosure in the past. The Center for Competitive Politics, a group dedicated to protecting First Amendment political rights, quickly released a memo that argued, “It’s simply an undisputed fact that some of the most thoughtful points about the costs of disclosure in the campaign finance arena have been made by Bob Bauer and Supreme Court Justices protecting the rights of speakers.”
The memo also quoted numerous instances from Bauer’s blog in which his views clash with the administration’s, such as his contention that “better disclosure does not result in more, or more timely, reporting on campaign finance,” or that “some of the interest in more detailed disclosure is, in effect, an interest in more regulation.”
Of course, not all government “watchdog” groups take their previous battles with Bauer to mean that he’s ill-suited to perform his new role. Fred Wertheimer, founder and president of Democracy 21, argues that while he’s fought against Bauer on every campaign finance issue on the books in the past, “Recently, I’ve worked very closely with him on a number of campaign finance and ethics issues and he’s been consistently supportive and a strong advocate and a strong ally.”
And if Bauer is going to be involved, note other advocates, better to have him batting for your team than against you. “Even though Bauer is no hero of mine, he’s not going to betray us,” notes Holman. “Bob Bauer is on our side this time.”
Not everyone is so sanguine, however. In the end, the nature of Bauer’s impact all comes down to the kind of relationship Bauer has with his client, Mr. Obama, notes Ryan. “Yes, an attorney has an ethical obligation to represent his client, but here we’re talking about an attorney filling the role of advisor to the president on these issues. So I’m not at all certain as to whether Bauer will be asked to present his own views and opinions to the president, or represent the president’s views to the public, or some combination of the two.”
“He’s an excellent lawyer so to the extent that it’s the latter, then I have full faith,” adds Ryan. “But if his job is to represent his own views to the president… he’ll be counseling the president in ways that the Campaign Legal Center wouldn’t be very pleased about.”
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