The press about super PACs is heating up: there are articles popping up all over the place—here, there, everywhere. There is at once a general sense that major change is overtaking the campaign finance system, and no agreement about what it means or what, if anything, should be done about it. So the old arguments continue. Often they make no difference. Sometimes they make matters worse.
Consider the recent decision issued by the United States District Court in Holmes v. Federal Election Commission, No. 14-1243(RMC), 2015 (WL 17788778 (D.D.C. April 20, 2015). Holmes brought a complaint against the contribution limits in one particular and, some would argue, peculiar application. Congress structured the limits on a "per election" basis: indexed for inflation, the individual per election limit is now $2700, $2600 in the last cycle. But this limit works differently for different classes of candidates. A candidate actually or effectively unopposed in the primary can collect a full contribution for that non-event, then immediately collect the same amount from the same contributor for the general and spend all of it in the later election---a sensible move, because she has no other election in which to spend it. The opposing candidate who must struggle through the primary will use up the limit for that election and have only $2700 left for the general.
Holmes believes that this is wrong, and a constitutional wrong at that: that it denies her the right to commit the full lawful amount to the candidate she supports in the general election, and that it advantages incumbents who are most likely to avoid primary competition. The Court disagreed, characterizing her challenge as a "veiled" attack on the contribution limits overall.
A few years ago, after the enactment of McCain Feingold, the Federal Election Commission began issuing implementing rules, and there were not well received in reform quarters. It was objected that the agency was ignoring Congressional intent and gutting the law. One line of attack was possible Hill intervention to disapprove the rules pursuant to the Congressional Review Act. At a lunch with Senators to discuss this possibility, a prominent reform leader told the assembled legislators that if they did not reject the rules and hold the FEC to account, the public “would rise up” in protest. The public uprising did not occur, neither the Senate nor the House took action, and the reform critics took their cases to court—with some but not complete success.
But the hope for public pressure remains alive, and as Matea Gold reports in The Washington Post, there is some thought that with Super PACs and the like, things have gotten so out of hand that voters will insist on action. The ranking of campaign finance among other priorities important to voters remains low, but by one reading, it is inching up the list. Any upward movement is taken to be, maybe, a sign of more popular passion to come. This is always the wish. In the annals of modern campaign finance, it is never a wish come true.
But campaign finance history also shows that elected officials can be moved to take up this cause, and the same Post story that speculates about changes in public opinion records, more concretely, restiveness on the part of politicians. And this could make a difference. Candidates and officeholders cited in the story, such as Senator Lindsey Graham, worry about the small number of Americans—“about a 100 people”-- who can shape the course of a campaign with their money. The issue for Senator Graham is not, apparently, the cost to political equality: it is the unfairness to candidates who find that these wealthy activists “are going to be able to advocate their cause at the expense of your cause.”
Long in the field of campaign finance, well versed in its triumphs and tribulations, Larry Noble of the Campaign Legal Center objects strongly to the suggestions for disclosure reform I co-authored with Professor Samuel Issacharoff. It’s all a magic trick, he argues, that accomplishes the reverse of its stated intention: it moves contributions into the dark, raises the risk corruption and disregards the lessons of Watergate. The public is not “gullible”: it won’t buy it.
It is difficult not to imagine that Mr. Noble is engaged in theater of his own, something like the aerial feat performed yesterday by the mailman in a gyrocopter who touched down on the Capitol grounds with a similarly passionate appeal for campaign finance reform. This gentleman, undoubtedly sincere but less clearly prudent, entitled his project “Kitty Hawk”, after the Wright Brothers’ fabled flight in North Carolina in 1903. Larry, if he were maneuvering a craft, might have named it “Watergate," and he would have refreshed the message by 70 years, with only another four decades to go to cross over into the current century and to the present time.
The doctrinal architecture of campaign finance is straining under the pressure of adapting to new realities. Most of the hard questioning has been expended on the faded distinction between contributions and expenditures and its relationship to free speech values. It is all thoroughly familiar by now: the contribution which is “speech by proxy”, entitled to less protection, and the independent expenditure which is more pure speech and, while subject to disclosure requirements, cannot be put under dollar limits. How the money is spent is the controlling inquiry: who spends it is less important, and Citizens United pushed this point harder in holding that free speech rights don't depend on the identity of the speaker.
The hole in this analysis is the absence of attention to the activity of politics—the "doing of politics.” People who come together are doing more than speaking: they are doing politics, acting in concert to effect political goals. This is a dimension of First Amendment jurisprudence that is normally covered in discussion of the freedom of association. But attention to association has been fleeting, largely disappearing from Supreme Court jurisprudence, and when it reappears, it often collapses back into the free speech-centered jurisprudence that has reigned for decades now. The associational right is treated as expressive association, just the association that enables participants in group efforts to amplify their individual "views."
An account of doing politics may seem in the first instance to serve only a broadened perspective of First Amendment protections. On this view, it is another weight placed on the scales against regulation. But it is also a way to think about what is really happening in the conduct of politics, and to relate it to the goals and limits—both the goals and limits—of regulation. And it seems especially useful now when a new Super PAC donor, one refusing to play “second fiddle,” lays claim to a commanding position in electoral politics.
This is an opinion piece co-authored with Sam Issacharoff, appearing yesterday in Politico:
The money hunt for the 2016 election cycle is in full swing, and there is no surer sign of it than the first complaints recently filed by reform organizations. While, as in the past, there is intense interest in the likelihood of record-breaking sums and innovative spending strategies, this year, perhaps more than in the past, attention has turned to transparency. “Dark money” is dominating the campaign finance lexicon.
Current conversations on this topic have a Groundhog Day quality, and it seems that they are stuck between the dreary and the dreadful. Part of the problem is that nearly 40 years ago, the Supreme Court limited the objective of campaign finance regulation to the prevention of corruption or its appearance, and decades of debate ensued about what is and what is not corruption. And all this in the service of identifying when candidates and political parties come under the “undue influence” of money.
It’s time to retire the tired discourse of corruption and return to the core objective of giving voters access to relevant information. Disclosure today is best understood as a service to voters. Voters care about the “big money,” large contributions and expenditures in support of candidates. Those are the funds that most shape the issues raised and emphasized in campaigns and compel our attention.
- Second Fiddles, in a Tribute to Buckley
- Oversimplifying Corruption and the Power of Disgust
- Fresh Questions About “Coordination” Rules
- Super PACs in the Electoral Process
- Reform Initiatives Moved by “Reward and Punishment”
- The FEC Takes First Steps on a Disclosure Rulemaking
- Looking Back (Again) on Citizens United
- “Drop-In” Issue Advocacy in Election Seasons and The Disclosure Alternatives
- Naiveté and Modesty in Political Reform Thinking
- Rethinking “Corruption” in Campaign Finance Reform Circles