Bauer on the Reasonable Person

Bob Bauer has posted his comments to the FEC "Soliciation Rulemaking."

Bauer shreds the Commission's thought to use the "reasonable person" standard when dealing with questions related to soliciting funds. The reasonable person standard appears frequently in law, most notably when dealing with torts. But Bauer points out:

Distilled into the principal themese, these questions express the Commission's concern with enforcement, clarity and compatibility with normal, protected political practice. The reasonable person standard adds little to this quest an dit will more likely complicate it.

The reasonable person standard is the legal equivalent of common sense. But as we all know, common sense in campaign finance regulation is an oxymoron. In the post-McConnell age, trying to apply common sense to the world regulated by the FEC is like Quixote tilting at windmills, it is a thing of imagination in a world of fiction.

Bauer writes further:

When an appeal is made to a "reasonable person," it is often made more to explain, rather than to reach, a result.It does not help to answer the question posed by hte Commission, --"would the proposed definition be too broad or too narrow?"--becaue it can be invoked on behalf of breadth, or with equal rhetorical vigor, to narrowness, depending on the facts under review.

Used in a different way, to clarify what conduct is epxected, the "reasonable person" standard must rest on some assumptions about the standpoint and characteristics of the fictional person. Someone who knows how fundraising is conducted? Or someone who does not raise but gives money...and who can distinguish between general political talk and a solication, that is, a bid for a contribution?

In essence, Bauer argues that the reasonable person cannot give guidance to the regulated community. Adding insult to injury, you may have different standards for the same person depending on their activity. If I were acting as a lawyer, I might have one interpretation of reasonable person designed to keep my client out of trouble. But if I were trying to raise funds, even in my legal capacity, I would be looking for the broadest definition possible. Each could be valid and each could be wrong.