A partial picture of campaign finance in 2016, with much still to learn, suggests that the fully rounded-out version may feature surprises and interesting twists. It will certainly influence, perhaps even redirect, the debate over reform.
The aggressively "outsider" Republican nominee is relying on the party apparatus to fund the basics of his campaign. Trump is succeeding with on-line fundraising, as one might expect from outsiders, but it is not enough without the party doing, or attempting to do, what is needed. How well will the party do? Meanwhile, the Super PACs have been slow to extend their support to this candidate of self-declared if disputed wealth: while this may change in the weeks ahead, the wealthy have so far declined to shower their funds on this candidacy, instead putting much of their resources into congressional races.
On the Democratic side, the Super PACs are active: the Washington Post’s Matea Gold and Anu Narayanswamy find that “once-reluctant Democrats have fully embraced” these entities as key requirements for being competitive. In the primaries, however, these PACs were a point of controversy and small donors financed an insurgent, outsider candidacy that was fully competitive with what the front-running candidate from within the party could muster. Meanwhile, while the rallying cry for reform remains Citizens United, the most prominent money behind the Super PACs money is individual and not corporate.
Any year can present in unusual fashion and it is hazardous to put too much weight on the experience with presidential elections or to overgeneralize from it. But in the months ahead, it is an experience that will be cited and argued over, and it will have its effect. One conclusion drawn may well be that we still don't know how the crazy-quilt campaign finance system influences the politics of the campaigns—favoring or disfavoring parties, opening (through the Internet) or narrowing (through the Super PACs) participation, exacerbating or balanced out incumbent advantage.
Beyond these considerations are the venerable reform objectives of controlling corruption and promoting equality. Jeffrey Toobin in The New Yorker speculates about the implications of a Clinton victory for the confirmation of a new Justice and a new Supreme Court majority willing to revisit Citizens United. He asked Pam Karlan and Heather Gerken for their views and each splashes cold water on any excessive optimism that the court, even if it changed course, would make much of a difference to the accomplishment of traditional reform objectives.
Professor Karlan suggests that while Citizens United is a “shorthand” for the role of money in politics, that decision has little to do with the problem seen in campaign finance and its demise will not solve it. Professor Gerken does not go that far, but she does not see the Court as the prime mover in reform. Congress would have to act first, regulating Super PACs and other “shadow” groups, and she doubts that it will.
Donald Trump has urged his supporters to check closely for fraud and irregularities at the polling places. He wants them to make sure the voting is on the “up and up,” and he implies that there is a reason it might not be: he believes that there is a “big, big problem” which apparently “nobody has the guts to talk about.”
Rick Hasen, among others, has criticized Trump for claiming the widespread existence of a problem—impersonation voting fraud—which in fact occurs with extreme infrequency, and he worries that Trump supporters’ response to the demand that they somehow solve this “big, big problem” may intimidate voters, deterring some from exercising their right to vote. Hasen’s concern is fully justified.
This is not to suggest Trump or any other candidate should not expect, or should not do what he or she can, to help bring about an orderly election in which the rules, including the eligibility rules, are followed. There are any number of defensible “protect the vote” programs that his or any campaign, or political party, might put in place. But normally, the campaign or party defines the problem with precision, trains observers, and deploys lawyers to go about the task capably and responsibly. Instead Trump seems intent on issuing a alarm that any supporter can interpret as he or she wishes. The choice for Trump is not between measures to protect the vote and none at all, but between a genuine,competently structured program of voter protection and a wild political swing. That he chose the latter is deeply unfair to the voters.
Also not to be overlooked: It is also unfair to the election officials across the country charged with the hard work of running the polling places and deeply committed to professional,nonpartisan administration of the voting process. Some are Republicans, some Democrats, and some affiliate with neither party: it doesn’t matter. They do their jobs, often without adequate funding; they are the first to take the blame for anything that goes wrong. They persevere, a good many of them for years of relatively thankless service.
Matt Grossman and David A Hopkins have pronounced many decades of liberal reform to be a failure. In a new book, they argue that the 1970s reform program did not lead to the success of liberal policies but may have been primarily advantageous to "ideological Republicans." For a party that is "a coalition of social groups, each with pragmatic policy concerns," the Democrats wound up undermining the transactional politics among various interests that would produce their preferred policy outcomes. Making matters worse was a shift of voter sentiment against government-driven solutions. The Republicans, happy to oblige the popular sentiment by blocking legislation, fared better than Democrats actually interested in passing it. Grossman and Hopkins conclude that in the future, Democrats "should assess whether each potential change is likely to benefit the Democratic coalition or the more ideological Republicans."
The problem always is the hazard of predicting the partisan or policy impact of any reform measure. To the extent that Grossman and Hopkins are urging Democrats to guess, they are necessarily allowing for the fairly large possibility that they will guess wrong. And even the ways in which they may be wrong are not anticipated all that reliably. In other words, both the benefits and the costs--the shape of success and the look of failure--will be very hard to judge. The mistakes made can be costly.
None of this would matter if those promoting reform could satisfy themselves that it satisfied other measures of success. For example, do those reforms enhance public confidence in the political process, or lessen the risk of corruption in government? Not so much, it seems, which is not to say that things would not be worse on this score without the reforms. But if it is true that reforms have contributed little to the success of the progressive policy agenda, the absence of other consolations, like a government that enjoys the public’s confidence, only compounds the sense of failure and dissatisfaction.
The Grossman/Hopkins argument tends to strengthen the case for targeted modest reforms that don't rest on ambitious expectations about policy or partisan effects. Rather than each party trying to game which reforms will serve their particular interests, they might collaborate on purging the current regulatory system of its inanities, inconsistencies and inefficiencies.
The Brennan Center Report on the state of disclosure, “Secret Spending in the States,” usefully examines transparency policy issues presented by high-impact spending in low-information contests at the state and local level. It argues that dark money is not the only problem and focuses on the additional questions raised by "gray money" – –funding disclosed by reporting entities but received from organizations giving no indication of the interest or funding behind them. The Report then selects examples from various states of dark money and gray money controversies or issues. The Center sets out a program of reform and points to some progress made in the states.
The current divide over these reporting issues is so sharp that it is unlikely that the Center will immediately win over the usual skeptics. These skeptics’ complaint is that terms like “dark money” or “gray money” are highly charged but hopelessly vague, and that they are being used to justify proposed reforms that would impede the exercise of free speech rights. They are loathe to empower the government to do too much, and behind this is the conviction that government in the control of particular political interests will use disclosure to hound adversaries or subject them to public harassment.
But the skeptics might be surprised that the Brennan Center Report does not minimize the burdens and political risks of disclosure regimes. It argues for reasonable monetary thresholds, to keep the smaller contributions out of the public reports; for reasonable exemptions for especially vulnerable participants; and for "other reasonable accommodations" to allow donors to support organizations for charitable or social welfare purposes without falling within disclosure requirements that apply to the financing of political activities. In addition, the Center quite sensibly would have "[any] penalty for failure to disclose… fit the severity of the violation."
In this pre-Labor Day period when blogging will be light, here are a few notes:
1. Robert Mutch, who has written extensively about the history of campaign finance, has now published a guide to law and rules, Campaign Finance: What Everyone Needs to Know, just published by Oxford University Press. He means “everyone.” It is a citizen’s manual, with accessible explanations of abstruse statutory regulatory, and case law material, a chronology of major developments, and a glossary of key terms. He also provides throughout comments on the campaign finance reform debate. Mutch has a point of view on reform issues--who doesn’t?--but it is not harmful to his project. It adds a little zest to the discussion and more interest, therefore, for the general reader. That reader has long deserved a resource like this, and here it is, courtesy of Robert Mutch.
2. That same general reader might want to puzzle over some of features of the well-worn law that is Mutch’s subject. An interesting case now on appeal to the Supreme Court, which goes by the name of a plaintiff with an unambiguous politics--Stop Reckless Economic Instability Caused by Democrats--questions why it is that political committees in existence for at least six months, so-called “multicandidate” committees, may give upon passing out of their infancy more to candidates but less to political parties (provided they also meet other minimal conditions on the level of support received and given). The multi-candidate committee satisfying this 6-month waiting period can give a candidate another $2300 per election, for a total per election limit of $5,000. But its contributions to national and state parties are substantially cut from $32,400 to $5,000 and from $10,000 to $5,000, respectively.
- Trump, Taxes, and the Choice of Law or Politics
- Corporate Regulation of Internet Politics
- The Seventh Circuit and “Objective Standards” in Voter ID Requirements
- Political Morality and the Trump Candidacy: Part II
- The Courts and Election Law: The Divergent Fortunes of Crawford (Voter ID) and Citizens United (Super PACs)
- Political Morality and the Trump Candidacy
- Voter ID Laws and the Future of Judicial “Softening”
- A Legal Note from the World of Conventions
- The Question of Intensity: Campaign Finance and the Ginsburg Controversy
- Citizens United and the “Impossible Dream”