Christian Schneider

Author, Columnist

Category: Campaign Finance Reform (page 3 of 3)

Leveling the Presidential Playing Field

For as long as there have been political campaigns, there have been critics of how those campaigns are financed. Good government groups deride campaigns that raise and spend bucketloads of money, fearing those campaigns have a leg up over their challengers. The more a campaign spends, they argue, the better chance the candidate has at winning an election. Apparently they believe there exists a “magic candidate” who is being held out of office for lack of resources, and they decry the undue influence of money on choosing our elected officials.

Perhaps they should purchase a newspaper.

In 2008, America will pick a new president. At this point, despite wildly disparate fundraising numbers between the candidates, nobody has a clue who the next chief executive will be. While some candidates are dropping money out of airplanes and faring poorly in the polls, others have caught fire while running their campaigns on food stamps.

The reason? Voters just might deserve more credit than they get from campaign finance reformers. In fact, the list of reasons candidates appeal to voters is long and varied – and financing often only plays an ancillary role. Fundraising doesn’t guarantee success. In sports parlance, there’s a reason they play the games.

In three years, Barack Obama has gone from being an Illinois State Senator to an even-money bet to be the next president. In doing so, he has stared down the political machine of a candidate whose name has been on the lips of American voters for 16 years, despite raising nearly $10 million less than Hillary Clinton.

With less fundraising prowess than the Clinton campaign, how has Obama surged to where he is now? The reasons are myriad. He’s attractive. He delivers thunderous, inspirational speeches that appeal to people’s hopes and dreams. He has the support of a slobbering press corps. And he has the backing of Oprah Nation.

Of course, all of these attributes tell us nothing about how he would govern as president. But they influence voters – some would say they provide undue influence on the electorate. After all – what’s the cash value of Oprah’s endorsement? A gazillion dollars? At the very least it, has to be as much as John Edwards’ entire budget for hair care products.

On the Republican side, Mike Huckabee has done for campaign finance reform what David Koresh did for Waco as a family vacation destination. While spending virtually nothing, the quick-witted Huckabee pummeled his Republican opponents in Iowa on a campaign of charm, Godspeak, and Chuck Norris jokes.

Conversely, former Massachusetts governor Mitt Romney has been printing his own money during the campaign, yet has been collecting nothing but humiliating losses as a result. In Iowa, Romney was pounded by Huckabee despite dumping millions of dollars on the state. Television station owners all across Iowa will be sending their children to Ivy League schools based on Romney’s generosity alone.

Romney suffered a similar fate in New Hampshire, only this time to John McCain. According to reports, candidates of both parties spent $23.9 million in television ads in New Hampshire – of that total, Romney spent $9 million. Yet McCain, who spent $3.6 million on TV ads, emerged with a convincing victory, which may just propel him back into being a legitimate contender. Rudy Giuliani spent $2.4 million on television in New Hampshire, yet barely beat out fringe candidate Ron Paul for fourth place.

All of these instances indicate that voters are picking their candidates for a variety of reasons – yet campaign spending doesn’t seem to be one of them. As for Mitt Romney and Hillary Clinton, they lack some of the influential qualities other candidates do have, and it’s just not fair.

This is why we clearly need regulations in place to have a truly egalitarian field for presidential candidates. Since issues are the only thing that should influence voters, we need to control for the other attributes that might unfairly sway voters away from a candidate who might not be so fortunate.

For instance, we need to eliminate Barack Obama’s good looks from the equation. From now on, Obama should be forced to wear a ridiculous, bushy fake mustache when he gives speeches. We’ll see if women voters are as enthusiastic about his message of hope when he looks like Borat. (Although, admittedly, he might earn my vote if he did so.)

Next, we need to equalize the market for celebrity endorsements. When Chuck Norris endorses Mike Huckabee, every other candidate in the field will be assigned a taxpayer-financed washed-up action star to serve as their campaign spokesman. Jean-Claude Van Damme, we need your cell phone number – looks like John Edwards is cratering!

Under my plan, candidates will be barred from playing instruments while on the campaign trail. Everyone remembers Bill Clinton’s thrust in popularity after he played the saxophone on late night television. Mike Huckabee recently showed up on Jay Leno playing the bass guitar. (Less memorable was Steve Forbes’ performance of Black Sabbath’s “Paranoid” on the triangle.) Whether a candidate can play a few notes on an instrument doesn’t tell me what I need to know about their position on CAFTA.

Finally, we need to get rid of all these troublesome catchwords that seem to be getting people so excited. Obama should be limited to two uses of the word “hope” per speech. Huckabee should only be allowed to refer to God as “the man who lives in the clouds,” and will be limited to using the following joke, written by my four year-old daughter:

Q: “What did the fish say to the seaweed?”

A: “Fish can’t talk!”

All of these important reforms will give real people a chance to run for office. Real ugly, dull, uninformed people.

Then again, maybe we should just recognize that voters are smarter and more complex than we have given them credit for. Maybe the things we think influence their votes, like “excessive” campaign spending, aren’t really all that important. Perhaps citizens see through campaign ads and pick their elected officials on actual substance.

Undeterred, good government groups in Wisconsin forge on with their plans to use taxpayer money to solve the fundraising “arms race” that leaves some candidates with more money than others. These groups believe candidates raise money, which makes them more viable. In fact, they have it exactly backward – it is the best candidates that are able to attract contributions once they have demonstrated their electoral worthiness. What they do with their funds at that point is their own business – and quite often doesn’t mean victory. Until we can control for all the variables in a campaign, some candidates will continue to have natural advantages that appeal more broadly to voters.

-January 10, 2008

UPDATE: Originally, this column suggested Charles Bronson as the go-to washed up action star. Unfortunately, it appears that Bronson has been practicing his own vigilante brand of justice in heaven since 2003. RIP.

Fire Your Legislators

So-called good government groups in Wisconsin are eternally hyperventilating about the unfair advantage fundraising gives incumbent candidates. They complain that sitting elected officials can use their office to build excessive warchests, which makes them invulnerable come election time. Generally, their answer is to fund campaigns with taxpayer money and limit total campaign expenditures.

When these groups obsess about campaign fundraising, they miss some very real advantages incumbent legislators have over challengers. Yes, it is difficult for a challenger to raise funds like a sitting legislator – but with the party fundraising system currently in place, viable challengers will get the cash they need to run a campaign.

The real benefit of incumbency comes not in the ability to raise money, but the enormous advantage legislators have in how we structure their work schedule. Essentially, taxpayers pay their legislators to campaign for eight months every two years. On March 13th of 2008, legislators will walk out of the Capitol having completed the 2007-09 biennium. Between March and November, they will be free to do all of the campaigning they want – going door to door, making fundraising calls, and attending church fairs. The entire time, they will be collecting a state paycheck and benefits.

On the other hand, think of someone looking to challenge one of these incumbents. If I own, say, a print shop and want to challenge Senator Schmoe for her Senate seat, I essentially have to quit my job for five months to do all the campaigning I would need to do to be competitive. There’s no way I could do all the retail politics I needed to in my off hours to compete with the incumbent – who is free to do whatever they want during regular work hours. Even if I tried to maintain my job while running for office, it would virtually guarantee that I wouldn’t see my family until election day. These are huge disincentives for successful businesspeople to run for office in Wisconsin.

The answer? Fire our legislators from March through November of campaign years. Let’s see if they can manage running a campaign and holding down a job at the same time, rather than having the taxpayers pick up their salaries during campaign season. This is what their prospective challengers have to endure. Think about how crazy this situation is for Assembly representatives – we pay them salaries for 14 months to do actual legislative work, then pay them for 10 months for them to convince us that they should be back for another two year term to do the same thing.

Another major advantage enjoyed by legislators is the way they get to utilize their office as an incumbent. Elected officials get to flood their district with political newsletters and other mailings, as well as sending out hundreds of the state “Blue Books” (the state almanac).

Certainly, communicating with constituents is an important part of a legislator’s job. If someone in their district needs assistance, it is their job to help. The Legislature is budgeted to spend $141 million over the next two years, with a portion of that dedicated to mailing newsletters that are essentially campaign materials – they list all the representative’s legislative accomplishments, complete with photos and phony questionnaires. Again, taxpayers are picking up the tab to be told how great their incumbent elected official is.

There’s very little taxpayers can do to limit the office expenses of their representatives. Furthermore, name recognition from being in office is one of the unavoidable spoils of getting elected in the first place. But what we can do is make these expenses more transparent. Take the State of New York, for instance – their state law requires all their legislators’ expenditures be compiled in a single book, which is then distributed to the public. The media and public get a chance to see who is spending what in their office budgets – including mailings, phone calls, and travel expenses. Such a process in Wisconsin would begin to shine some light on which legislators are using taxpayer money to gain political advantage.

In recent years, the media have been running around like their collective hair is on fire at the prospect that there might be politics going on at the Capitol on state time. Yet right under their noses is a framework that dissuades good people from running competitive campaigns and gives incumbents significant advantages. While many legislative seats are simply non-competitive, some simple changes can level the playing field for those that are in play. And it won’t require taxpayers picking up the tab for campaign ads.

Negative Campaigning – A New Phenomenon?

One strategy that campaign finance reform advocates employ to gain public support for their cause is to stir up hatred of negative campaigning.  Public financing of campaigns, they argue, will lead to more civil discourse and shield voters\’ sensitive eyes from the horrors of democracy.

Recently, I happened to be paging through old copies of the Park Falls Herald from 1960 (don\’t ask why).  Park Falls, as many know, is a small town in Northern Wisconsin.  In 1960, there was an election for State Senator in the Park Falls area between Republican Clifford Krueger and Democrat Henry Berquist.  On November 3rd of 1960, an anti-Berquist advertisement appeared in the Park Falls Herald (the last issue before the election) that made some pretty entertaining accusations against the Democrat.

The advertisement accused Berquist of \”having close alliance and cooperation with communist Russia,\” and being \”against the Federal Bureau of Investigation.\”  The ad went on to accuse Berquist of being \”Against the Marshall Plan to stop communism in Europe\” and being \”against our having atom bombs unless Russia has them too.\”  (The ad also rips Berquist for being \”against the draft,\” which means in that respect, he was before his time.)

Here\’s a copy of the ad.  You can click on it to make it bigger.

In 1960, McCarthyism may still have been alive and well, and it may have been good politics to accuse your opponent of being a communist.  But this was a state senate race.  In the North Woods.  In 1960.  Weren\’t those the days when politicians supposedly all got along, and went out and had beers with each other?  In fact, bitter partisanship and negative campaigning has always been a part of the American political landscape – and it always will be, regardless of who pays for the ads.  These kinds of attacks, while not necessarily any different today, just seem more pervasive, with the advent of so many more types of media outlets.

In the election, Krueger went on to beat Berquist, 55% to 45%.

Scalia on The Chilling Effect of McCain-Feingold

Today, the U.S Supreme Court released its opinion in FEC vs. Wisconsin Right to Life, a case which challenged the portion of the McCain-Feingold campaign finance law which limited the issue advocacy in which organizations could engage near the time of an election.  Justice Scalia joined with the majority in overturning a significant portion of the federal law, but also issued a concurring opinion that argues the Court didn\’t go far enough.

I can\’t do Scalia\’s style any justice, so here\’s an excerpt from his opinion:

A Moroccan cartoonist once defended his criticism of the Moroccan monarch (lèse majesté being a serious crime in Morocco) as follows: \”‘I’m not a revolutionary, I’m just defending freedom of speech. . . . I never said we had to change the king—no, no, no, no! But I said that some things the king is doing, I do not like. Is that a crime?’\”1 Well, in the United States (making due allowance for thefact that we have elected representatives instead of a king) it is a crime, at least if the speaker is a union or a corporation (including not-for-profit public-interest corporations) and if the representative is identified by name within a certain period before a primary or congressional election in which he is running…

The question is whether WRTL meets the standard for prevailing in an as-applied challenge to BCRA §203. Answering that question obviously requires the Court to articulate the standard. The most obvious one, and the one suggested by the Federal Election Commission (FEC)and intervenors, is the standard set forth in McConnell itself: whether the advertisement is the \”functional equivalent of express advocacy.\” McConnell, supra, at 206. See also Brief for Appellant FEC 18 (arguing that WRTL’s \”advertisements are the functional equivalent of the sort of express advocacy that this Court has long recognized may be constitutionally regulated\”); Reply Brief for Appellant Sen. John McCain et al. in No. 06–970,  p. 14 (\”[C]ourts should apply the standard articulated in McConnell; Congress may constitutionally restrict corporate funding of ads that are the ‘functional equivalent of express advocacy’ for or against a candidate\”). Intervenors flesh out the standard somewhat further: \”[C]ourts should ask whether the ad’s audience would reasonably understand the ad, in the context of the campaign, to promote or attack the candidate. Id, at 15.

The District Court instead articulated a five-factor test that looks to whether the ad under review \”(1) describes a legislative issue that is either currently the subject of legislative scrutiny orlikely to be the subject of such scrutiny in the near future; (2) refers to the prior voting record or current position of the named candidate on the issue described; (3) exhorts the listener to do anything other than contact the candidate about the described issue; (4) promotes, attacks, supports, or opposes the named candidate; and (5) refers to the upcoming election, candidacy, and/or political partyof the candidate.\” 466 F. Supp. 2d 195, 207 (DC 2006). The backup definition of \”electioneering communications\”contained in BCRA itself, see n. 2, supra, offers another possibility. It covers any communication that \”promotes or supports a candidate for that office . . . (regardless of whether the communication expressly advocates a vote for or against a candidate) and which also is suggestive of no plausible meaning other than an exhortation to vote for or against a specific candidate.\” And the principal opinion inthis case offers a variation of its own (one bearing a strong likeness to BCRA’s backup definition): whether \”the ad is susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate.\” Ante, at 16.

There is a fundamental and inescapable problem withall of these various tests. Each of them (and every other test that is tied to the public perception, or a court’s perception, of the import, the intent, or the effect of the ad) is impermissibly vague and thus ineffective to vindicate the fundamental First Amendment rights of the large segmentof society to which §203 applies. Consider the applicationof these tests to WRTL’s ads: There is not the slightestdoubt that these ads had an issue-advocacy component.They explicitly urged lobbying on the pending legislative issue of appellate-judge filibusters. The question before usis whether something about them caused them to be the \”functional equivalent\” of express advocacy, and thus constitutionally subject to BCRA’s criminal penalty. Does any of the tests suggested above answer this question withthe degree of clarity necessary to avoid the chilling of fundamental political discourse? I think not.

The \”functional equivalent\” test does nothing more than restate the question (and make clear that the electoral advocacy need not be express). The test which asks how the ad’s audience \”would reasonably understand the ad\” provides ample room for debate and uncertainty. The District Court’s five-factor test does not (and could not possibly) specify how much weight is to be given to eachfactor—and includes the inherently vague factor of whether the ad \”promotes, attacks, supports, or opposes the named candidate.\” (Does attacking the king’s position attack the king?) The tests which look to whether the ad is \”susceptible of no plausible meaning\” or \”susceptible of no reasonable interpretation\” other than an exhortation to vote for or against a specific candidate seem tighter. They ultimately depend, however, upon a judicial judgment (or is it—worse still—a jury judgment?) concerning \”reasonable\” or \”plausible\” import that is far from certain, that rests upon consideration of innumerable surrounding circumstances which the speaker may not even be aware of, and that lends itself to distortion by reason of the decision maker’s subjective evaluation of the importance or unimportance of the challenged speech. In this critical area of political discourse, the speaker cannot be compelled to risk felony prosecution with no more assurance of impunity than his prediction that what he says will be found susceptible of some \”reasonable interpretation other than as an appeal to vote for or against a specific candidate.\” Under these circumstances, \”[m]any persons, rather than undertake the considerable burden (and sometimes risk) of vindicating their rights through case-by-caselitigation, will choose simply to abstain from protected speech—harming not only themselves but society as a whole, which is deprived of an uninhibited marketplace of ideas.\”

———————————————————————–

The opinion released today overturns portions of the law upheld only three terms ago in  McConnell v. Federal Election Comm’n, 540 U. S. 93 (2003), in which Justice Sandra Day O\’Connor sided with the 5-4 majority to uphold the McCain-Feingold issue advocacy provisions. Justices Alito and Roberts both sided with the majority in today\’s decision.

This being the case, special recognition for today\’s decision goes to Ohio and Florida, and their electoral votes.

Union Fundraising Update

You may recall the Wisconsin Democracy Campaign\’s ridiculous report last month that purported to show that \”big business\” contributed 12 times as much as unions to Wisconsin candidates.  Naturally, the \”study\” was reported as if it were the Ten Commandments.

I examined the flaws in the report in this post.  In fact, you don\’t even need to take my word for it – opensecrets.org has a listing of the largest contributors to federal candidates since 1989-90.  Here\’s the top 10:

Rank Donor Total

1

Amer Fedn of State/Cnty/Munic Employees

$30,671,426

2

National Education Assn

$21,116,383

3

National Assn of Realtors

$20,414,385

4

Assn of Trial Lawyers of America

$19,931,717

5

Philip Morris

$18,951,671

6

Teamsters Union

$18,858,733

7

Intl Brotherhood of Electrical Workers

$18,394,547

8

American Medical Assn

$18,377,814

9

Service Employees International Union

$17,647,346

10

Communications Workers of America

$17,597,372

While these are federal candidates, and the WDC report deals with state candidates, does anyone actually believe somehow unions ignore Wisconsin politicians?  Of course not.

Lead our Lawmakers Not Into Temptation

“The only way to get rid of temptation is to yield to it.”

-Oscar Wilde

 

Humility certainly isn’t something found abundantly within the ranks of the so-called “good government” crowd. When pushing for campaign finance reform, they make a number of bold claims – that limiting spending on campaigns will end corruption in government, that campaign commercials will be more civil, that “the people” will be better represented[1], and on and on. Can the claim that campaign finance reform will tone down your co-worker’s awful cologne really be far behind?

However, one claim in particular stands out in its absurdity. In the wake of several Wisconsin legislative leaders going to jail for breaking campaign laws, reformers claim that public financing of campaigns is necessary because it will “remove the temptation” for politicians to break campaign finance laws to raise cash for candidates. According to Jay Heck of Common Cause of Wisconsin, “[corruption is] never going to end as long as we operate under this system.. there’s always going to be another scandal. There’s always going to be another indictment.”

You may begin scratching your head… now.

The idea that somehow we can use laws to remove the temptation of people to break them seems to be an entirely new concept in governance. There are always going to be people that break the law to gain a dishonest advantage, regardless of what “system” is in place. Ideally, the threat of imprisonment should be enough to ameliorate any lawbreaking tendencies individuals may have – all that is needed is a realistic expectation that they will be caught. Is there any question that former Senate Majority Leader Chuck Chvala knew that trading legislation for lobbyist cash and money laundering were illegal before he ended up in court?[2]

One wonders how would this concept would work in other areas of the law. Should we confuse poachers by dressing deer in hats and fake mustaches? Should we eliminate the temptation for people to steal cable television by requiring the Spice Channel to hire Rosie O’Donnell? Perhaps the legislature should allow me to park in handicapped spaces, just to make sure dishonest able-bodied people aren’t tempted to do so.

Furthermore, even if this concept of removing the temptation to break laws actually worked, aren’t there other areas of the law that should receive a little more priority? On the day after Kenosha businessman Dennis Troha was charged with illegally funneling money to Governor Jim Doyle’s campaign, the Milwaukee Journal-Sentinel took the opportunity to editorialize in favor of public funding of campaigns. The March 20th editorial implied that the Troha affair never would have happened if more rigid laws were in place. (How exactly people being caught breaking existing laws isn’t evidence that the current system actually works is, at press time, unclear.)

In the meantime, Milwaukee is suffering through one of its most violent years yet. If this concept of removing the temptation to break laws actually worked, shouldn’t we be applying it for actual important things – like keeping people from being shot? Can we use the “temptation removal” theory to keep unwed fathers from abandoning their children, which causes much of the poverty and lawlessness found in our cities? (Incidentally, if more guys looked like me, illegitimate pregnancies would drop like a rock – I’m birth control with shoes.)

Of course we can’t – because some people simply have no fear of consequences, whether they be gun-toting thugs or legislative leaders. And that fear of consequence can only be instilled with effective enforcement of existing laws, rather than giving them new laws to ignore.

The key to having effective campaign laws is twofold: First, we shouldn’t elect people that are likely to break them. Secondly, we should enforce the laws we currently have that require full disclosure of direct donations to candidates. Then, we can all make up our own minds about who is influencing the legislative process. A new financing scheme will do nothing to weaken the power struggle in the statehouse. More draconian fundraising limitations won’t eliminate the temptation to break the law – they may only enhance it.

[1] If “the people” were able to directly control legislation, without question the Capitol Building would be renamed “The Dale Earnhardt Memorial Place Where They Make Laws.”

[2] In suspending Chvala’s law license, the Wisconsin Supreme Court said the suspension was “necessary to impress on him and on the other lawyers who are licensed in Wisconsin the seriousness of the misconduct in which Attorney Chvala engaged.” Exactly how big of a pool of people is this message intended for? If you are an attorney, and one day want to be Majority Leader of the State Senate, you are now officially on notice – no extortion or money laundering! We’re watching you!

Your Viewing Conflict for Tonight

I apologize for presenting you with this tough choice, but you may have to put off watching American Idol tonight in order to watch this debate on campaign finance reform.  Since FEC vs. Wisconsin Right to Life is slated for oral arguments before the U.S. Supreme Court on April 25th, this debate is timely – especially since WRTL counsel James Bopp will actually be arguing the case before the Court.

The People’s Legislature: Rolling (papers) Through Wisconsin

Mix together a room full of underemployed malcontents and a willing media, and you come up with this year’s most underwhelming political movement – “The People’s Legislature.”

Attorney Ed Garvey, who apparently believes his embarrassment in the 1998 governor’s race wasn’t enough, went back to the well again in early January by stirring up a group of the politically confused (i.e. progressives) in a sham meeting to bash state government. Note to Garvey – if your 1998 running mate, moonbeam Barb Lawton, has achieved more in public service than you have, you may soon be seeing your political career as a victim on “CSI: Miami.”

Complicit in the organization of this charade was Mike McCabe, head of the “nonpartisan” Wisconsin Democracy Campaign, which advocates for public financing of elections. McCabe, as you may remember, lost to Mark Pocan in a 1998 Democratic primary for State Assembly by a nearly four to one margin – McCabe actually made Mark Pocan look like Tom DeLay.

One wonders if McCabe or Garvey would continue to label state government as “corrupt” if they had actually been elected, or if this is all sour grapes. The strategy seems to be, if you can’t be elected legitimately, form your own band of the misguided to lead.

Billed as a “nonpartisan” event, the organizers held out Carol Mcky as the sole “Republican” scheduled to be present. In fact, the Wisconsin State Journal, swallowing Garvey’s press release whole, reported the “longtime Republican” Mcky would be present at the “nonpartisan” event. Incidentally, a simple Google seach shows that Mcky is an outspoken opponent of the War in Iraq, was featured at the 2004 Democratic Convention in Boston, and campaigned aggressively for John Kerry.

Joining Mcky was former Libertarian gubernatorial candidate Ed Thompson, who provided some much needed balance to the festivities by calling the U.S. government “tyrannical,” and “authoritarian.” Thompson finished up by saying, “This is how totalitarian governments come into being. And I believe government in America today, at all levels, is dangerously close to taking this serious misstep.” Thompson, as you remember, was the Libertarian candidate who ironically complained about not getting enough government money for his campaign.

The “People’s Legislature” was billed as an event where a platform would be developed as if special interests had no say. It was to reflect what the common people of Wisconsin would want without big money contributions and corrupt politicians involved. So what did this group of “common folk” come up with?

They produced a four point plan for campaign finance reform straight out of a Democracy Campaign press release, including public financing of campaigns, merging the state elections and ethics boards, and redistricting reform. Stuff that the real people of Wisconsin care about.

I can imagine a typical dinner at a blue collar home:

MOM: How was your day at work?

DAD: Well, the boss is on my back, my paycheck is shrinking, my co-workers aren’t pulling their weight, and my back is killing me from working that drill press.

MOM: You seem more down than usual. Is there something else?

DAD: Well, there is. The Legislature hasn’t consolidated the elections and ethics board, and I believe our democracy is at stake as a result.

MOM: More yams?

Since the initial meeting in January, the “People’s Legislature” has continued to impose their odor on the rest of the state, having several meetings attended by nearly tens of people. These individuals were brave enough to venture out of the smoke-filled vans they had been living in long enough to hear why we need to waste taxpayer money on TV ads that everyone hates anyway.

Here’s a note to the chemically challenged People’s Legislature attendees: There’s a big white building in the middle of Madison where real laws are made, and there’s a reason Garvey and McCabe have failed to gain entry into a system so “corrupt:” they are as crazy as you are.

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