The Court’s campaign finance jurisprudence has come under just criticism for its incoherence, and today’s decision on judicial campaign finance does not mark a step toward improvement. There is much to be said about the case, but a good starting point is the question of whether Chief Justice Roberts is right to say—in fact, to assert flatly—that “judges are not politicians.” Williams-Yulee v. Florida Bar, No. 13-499, slip op. at 1 (2015).
The Chief Justice is joined in this view, quite emphatically, by Justice Ginsburg, who argues, as she has before, that judges do not participate in representative democratic processes—and so are not properly seen to be politicians. Over a decade ago, in Republican Party of Minnesota v. White, Justice Scalia, then writing for the Court, had countered that the distinction drawn between judicial and other elections had been exaggerated: “the complete separation of the judiciary from the enterprise of “representative government”…is not a true picture of the American system.” 536 U.S. 765, 784. In the case today, the Court doubles down on the contrary proposition.
This is a good time for carefully researched and balanced discussions of political reform and Lee Drutman has now stepped in and done his part with an excellent book about lobbying, The Business of America is Lobbying (2015). It is not a screed and instead looks closely at the growth and changed character of this activity within the corporate sector. Drutman concludes with proposals for reform but only and admirably after he pares away preconceptions and identifies precisely what he believes the problem to be.
Corporate lobbying has become pervasive, Drutman claims, but he does not mean by that that it is always effective. Huge amounts of money are spent unwisely or inefficiently and Drutman assigns some of the responsibility for the excess to the lobbyists themselves. It is a business, after all, and those engaged in lobbying are immodest, he finds, in appraising the value of their efforts. Their clients, relying on this appraisal, ask for more of the same, which the lobbyists are only too happy to provide. (In fairness, lawyers should be quick to admit, lobbyists are not the only professionals convinced of their indispensability.) So a great deal of money is spent on lobbying.
Of course not all of it is wasted. Drutman is judicious in evaluating lobbying effects: he writes that “contrary to public opinion, politics is not a vending machine.” Id. at 23. But in certain circumstances, depending on the salience of the issue and other factors, lobbyist can be quite effective, and the well-paid experience and savvy lobbyists are the most effective. One clear finding is that lobbyists who come out of government, spinning the revolving door as they go, can boast of a relatively impressive record of success for their clients. Wrong to believe that all their lobbying dollars are worthwhile, the corporate employers of lobbyists are not mistaken to believe that sometimes it pays-- and they are well advised to pay-- to have the best lobbying talent on their side.
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 New Donors
- Searching for Common Ground on Disclosure
- 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