To defend the post-McCain-Feingold version of campaign finance reform, proponents have taken special pains to say that it did not really hurt the political parties. They bounced back, engineered new ways to raise money, became perhaps even stronger. The soft-money the 2002 law took away from them has been replaced by other sources of funding. Online contributions have helped, and so has special new party fundraising authority enacted by Congress in the “Cromnibus.”
But even more important, according to this line of argument, is understanding what a political party is. It is not correct, on this view, to point to the formal institutional party organizations, but parties should be viewed instead as “networks” of allied entities. That would include, for example, interest groups sympathetic to Democrats or Republicans, Super PACs aligned with either major party (sometimes referred to as “shadow parties”), and even Fox or MSNBC.
Now the Campaign Finance Institute has put out new research and commentary in support of this picture of the parties. Having assembled data to show that Super PACs aligned with party interests spent large sums of money in 2016, the CFI declares that there is no cause to “bemoan” the weakness of parties. Parties have “rebounded”: they “have found a way to fight back” after the reforms and Citizens United.
And how did this happen? On this point, CFI words its position delicately. The parties’ recovery can be attributed in part to the “law’s permeability.” The unrestricted funding and spending of Super PACs "looks much like the soft-money the formal parties accepted before the Bipartisan Campaign Reform Act of 2002 (BCRA).” There are advantages and disadvantages to this development. On the plus side, the "shadow party" PACs don’t have to pretend to be “issue advertising” and can spend on direct advocacy of their candidates. But, more negatively, they have to set up as “independent” of candidates or the institutional parties and cannot coordinate their spending with them.
It is difficult to follow Linda Greenhouse’s reasoning that the Court has been “broken” because it has been made into an electoral “prize.” Presidential candidates campaign on promises to support the nomination and confirmation of Justices who will move the Court’s jurisprudence in a desired direction. Why should they not? The Court does not decide only abstruse legal issues of interest primarily to learned commentators. If electoral competition necessarily features arguments about--to name a few-- reproductive rights, or voting rights, or the role of money in politics, then it will require candidates to take a stand on the Court. And in some elections, the issue will be right in the thick of the fight.
Donald Trump made as much as he could of the critical importance to Republicans of a Court molded in the image of the late Justice Scalia. Secretary Clinton told the Democratic Convention that: “We need to appoint Supreme Court justices who will get money out of politics and expand voting rights, not restrict them. And we’ll pass a constitutional amendment to overturn Citizens United.” No one doubted that the election would be consequential for the Court. Voters were entitled to know how much of a priority each party attached to the issue and what the candidates would look for in their nominees. The parties and their candidates obliged--as they should have.
None of this excuses the Republican refusal to provide a hearing for and allow a vote on the Garland nomination. But it is mistake to confuse this escalation in the struggle over the Court with the larger point about the central importance in national political conflicts of the Court’s composition. The Senate has an obligation to attend to the procedures and norms consistent with institutional interests and its governing responsibility in the long run. One aspect of this obligation is managing and translating political pressures, not giving entirely into them, in order to preserve the capacity of the body to function as a creditable legislature. If Senator McConnell were to announce that the Senate majority will closely coordinate legislative priorities with the RNC and that the RNC Chair will attend, to this end, the weekly Senate Republican Caucus lunches, there would be an outcry.
The Garland maneuver is an abuse close to this in kind. The Republican Senate majority decided to shape a process---in effect, to invent one--to enable the party’s Presidential candidate to campaign on a pledge to nominate the appropriate successor to Scalia, and to turn the nomination into electoral prize. The Senate subordinated its “advice and consent” function to Republican electoral objectives. Never before had the Senate taken the position that a duly elected President in an election year had no call on the Senate to advise and consent on a Court nomination. As Robin Bradley Kar and Jason Mazzone have shown, the Senate has “transferred” to the next administration the power to nominate to fill a vacancy only when the president had assumed office on the death of a predecessor, or a nomination was made by one president after another had been elected but not yet taken the oath.
The Wallace Global Fund fired Morgan Lewis for advising Donald Trump on the mechanisms for controlling conflict of interest. It scorned the firm’s legal analysis and its dismissal of counsel was meant to keep the Fund from being “complicit” in the President’s disregard of legal and ethical norms. The Fund has concluded that the president’s actions are, on the ethical merits, clearly indefensible--case closed. So the Fund deems the lawyers culpable for putting their names and reputations behind what it has concluded is beyond the pale.
There is a different way of looking at what may exceptional about the Trump ethics regime, and it does not require agreement on specific violations of ethical obligations, or arguments about the viability of specific legal theories, or the questioning of the professional standards followed by law firms or lawyers. It is more concerned with a change, for the worse, in the institutional safeguards for keeping government service under public ethical controls. The problem could be thought of as a sort of privatization of public ethics.
This privatizing element has been introduced through certain features of the Trump business interests, and even more, the issues presented by the family members that the President would like to have by his side. Some special arrangement is generally thought necessary to allow the president to have the counsel and company of his daughter and son in-law. They will take unpaid positions within the White House, but in form, as recently announced, they will be treated as employees subject to conflict of interest rules that apply to all others.
Both Mr. Kushner and Ms. Trump have complex continuing interests in their businesses, and they argue that there is no fair or practical way to dispose of many of them. They will maintain and retain enough connection to their business to monitor, with the advice of counsel, potential problems that may arise. A similar mechanism was established by the president to administer his “trust,” run by his sons, and advised by a special ethics counsel selected from private practice. His trust also has added a compliance adviser, a long time lawyer and official in the Trump business.
All of this occurs “in the family,” and this is largely how it is reported. But it does not have to end there in future administrations. Another president may feel free to appoint “volunteer” senior White House advisers without family ties but with similarly far-flung and complex business interests. Paid their dollar a year, they would maintain much of their financial interests, perhaps excluding the simplest conflicts presented by easily disposable stock holdings. They would also set up with their lawyers a private arrangement for the management of any conflicts.
Fearful of the cost to the Senate’s institutional standing or just to “sane” strategic decision-making, commentators concerned about partisan filibusters and the invocation of the nuclear option are convinced that there is a better way for Senate Democrats. Let the Republicans have their vote, the argument goes, and the filibuster may survive for use in a later fight over a more controversial or unqualified nominee. Filibuster now but fail, when failure is assured, and when the nuclear option is invoked and the filibuster is gone, all defenses against future, extreme nominees will have collapsed. When it is over, the Senate will be the worse for it, a raw site of political conflict and power politics--more like the House, rather than the honorably deliberative body it is meant to be.
These objectives--the protection of the “unique” character of the Senate, and the construction of a smart Supreme Court nomination strategy--may in theory be consistent some of the time. But that is not necessarily case, and it is not clear why it is thought to be true here.
There is bidding underway for the right to declare what is “precedent-shattering” in the votes ahead on the Gorsuch nomination. Democrats, The Wall Street Journal opines, may disregard institutional tradition by launching a full partisan filibuster. But the Republicans may answer with the nuclear option. In the one way or the other, there is the fear--or pretense--that ruin will have been brought to Senate practice.
But the process question is secondary, and only as important as what preceded it: the confirmation process. And that process is understood to have become a torpid affair. Whether it is characterized as “hollow” or, worse, “dishonest,” it now consists of a series of rituals with little substance. The process opens with the one-on-one "courtesy calls," proceeds to public testimony supplemented by written questions and answers for the record, and then comes the predictable finale on the floor of the Senate. No one expects anything useful to come of any of it.
It is not realistic to hope that a nominee will embrace candor and risk a 40 or more year position on the most Supreme of all courts. And the party whose president made the nomination will not urge the prospective Justice to take that risk. It has gotten to the point that, with other few measures available, nominees are judged on personality characteristics on display during the testimony: “seems nice,” v. “too smug.”
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