Progressives thinking about the experience with reform have to grapple with its implications for mobilization, for effective political speech and action. As previously noted here, one traditional reform objective – – regulating issue advertising – – bears reconsideration For years, a priority has been to expand the rules to cover certain issue advertising within election seasons. The authors of McCain Feingold settled on what they took to be an objective test--define the election season as a month to two months before an election, and then capture within reporting requirements ads that simply” refer” to a candidate and are directed to his or her electorate. The ads affected would surely be “sham” ads, intended to influence the election, and disclosure of the financing of these “electioneering communications” would be appropriate, as it is in the case of clear-cut campaign advertising.
But is there such a thing as a genuine issue ad--one that is designed to discuss candidates in relation to issues but without, within the four corners of the ad, expressly calling for the candidate’s election or defeat? Or to put it in doctrinal terms, may the government reporting rules reach ads that do not involve either express electoral advocacy or its “functional equivalent”? The Court in McConnell v. Federal Election Commission took it more or less for granted that genuine issue ads would not be subject to mandatory disclosure. 540 U.S. 93, 206 n.88 (2003) (“ [W]e assume that the interests that justify the regulation of campaign speech might not apply to the regulation of genuine issue ads").
In Citizens United, the Supreme Court devoted a line to the seemingly contrary conclusion, suggesting in the most general terms that "the public has an interest in knowing who was speaking about a candidate shortly before an election." Citizens United v. Federal Election Commission, 558 U.S. 310, 369 (2010). But its discussion on this point was short, and it also appeared in a case that involved a communication--a movie--that was plainly intended to influence voter choice. It was decidedly not a case about “genuine” issues speech.
The Independence Institute, a 501(c)(3) organization, has pressed on this issue with a challenge to the application of the reporting rules to an ad lacking either express advocacy or its functional equivalent--i.e. a "genuine issue ad.” The ad named two Senators, one running for election, in appealing for support of pending legislation on criminal justice reform. A three-judge district court last month rejected the claim that the ad was constitutionally protected. The Court relied on the language of Citizens United. It appeared satisfied that even in the case of a genuine issue ad, a reference to a candidate was sufficient to trigger the electioneering communication disclosure requirements. Independence Institute v. Federal Election Commission, No. 14-cv-1500, 2016 WL656396 (D.D.C. November 3, 2016).
The questions about the President-Elect’s business interests have so far revolved around those benefits he might enjoy from foreign holdings and transactions, and still more specifically those provided in part by foreign governments. It is argued that a constitutional issue arises under the Emoluments Clause barring any “person holding any office of profit or trust”, without the consent of the Congress, from accepting any gift from a foreign government. Some scholars contend that the Clause likely applies to presidents; others disagree.
But the attention paid to foreign source business income has left mostly to one side the larger question of the leeway presidents have to operate outside the conflict of interest rules all senior executive branch officials (other than the Vice President) have to follow. For example, presidents and vice presidents are not subject to gift restrictions. 5 C.F.R. §2635.204(j). They may accept any and all gifts from any and all sources (except, on the Emoluments theory, from foreign governments). The exception rests on the belief that considerations of etiquette and protocol require allowing a president to accept personal gifts.
Most presidents, most of the time, accept such gifts but only in trust for the United States. But the rule gives them the choice. And that choice in turn is governed by little other than a concern for appearances or, if the gift is proffered by a favor-seeker, by the wish to avoid liability for bribery. The only requirement is public disclosure: presidents must report once a year the gifts they are free to receive.
In other words, this is a rule buttressed by a norm: the rule allows for the acceptance of the gift, but the norm operates to limit the circumstances in which the president would normally accept a gift for himself. The norm does all the work. Another example of a norm addressed to conflicts of interest, but in this instance operating through transparency, is the traditional release of tax returns. Mr. Trump declined to release them during the campaign, or any time prior to the conclusion of the audit now in progress. There is no rule; the choice is his.
So while the President-Elect overstates his view that Presidents are free of all conflict of interest rules--a president can be prosecuted, not just impeached, for bribery--he is not wrong that the rules don’t apply to the Chief Executive as they do to all other senior government employees.
David Rivkin and Lee Casey offer up a range of justifications for this presidential freedom from more extensive conflict of interest rules. They say that to attempt to regulate these conflicts will discourage wealthy people from running for office; they don’t seem to accept the proposition that someone seeking extraordinary political power might give something up for it and, if unwilling to do so, might be revealing something troubling about motivation or suitability. Or as Peggy Noon put the point in the Wall Street Journal: his job now is different and “it requires sacrifice.”
The Brennan Center’s Daniel Weiner has called on the reform community to engage in self-examination and consider the changes that, in the light of the experience of this last election, are now due. He notes that money did not play the expected role, and that the role it did play, as in the case of Super PACs, underscores the imbalance between them and the political parties. He suggests that campaign finance reform could include additional liberalization of party financing. Weiner would proceed cautiously--he is not giving up on the Buckley regulatory model--but he and his colleagues at the Center have commendably tried to open up a wider, fresher discussion of reform alternatives.
But this may be the key sentence of his essay:
Finally, we should also be asking how campaign finance reform relates to the broader constellation of proposals to create a democracy that works for everyone. So many aspects of the 2016 election are deeply troubling, including documented voter suppression, the ongoing effects of partisan gerrymandering, and — at least for some — the fact that the winner of the popular vote lost the electoral college for the second time in under two decades. They call for solutions rooted in the same values of fairness, accountability, and inclusion that animate the strongest campaign finance reform ideas. It would be a great mistake to silo the latter from the broader push for a more just and equitable political system.Weiner would have the reform enterprise be integrated--the campaign finance part would fit with the others. There would be no “silo,” in which, as one reformer once described another’s preoccupation with money-in-politics, campaign finance is THE thing. Campaign finance would have its place within a scheme of reform that is unified around the themes of fairness, accountability and inclusion. This is the shape of reform as Weiner envisions it in the “age of Trump.”
Missing from these otherwise sensible criteria for reform are the requirements of mobilization, of effective political action. To insist that reform’s design must take into account the needs of political association and activism is not to consign to a lower rung, or to read out of the plan altogether, the values of "fairness, accountability and inclusion.” But at a time when progressives are sobered by the looming contest over large questions of national values and policy, a reform compatible with the needs of an energetic politics seems fairly urgent.
With two elections within sixteen years won by the candidate who lost the popular vote, it is a natural turn that the Electoral College moves higher on the reform agenda. There remain other items for consideration: the state of the political parties, campaign finance, and voting rights. The question is: in what ways will the substance of reform, and its timing or tactics, be affected by the outcome of this election?
1. Attention to the Electoral College is now heightened at a time of mounting impatience with the other ways in which the electoral process deviates from the expectation that the most votes should decide. James Ceaser has correctly said that we've arrived at the point in our political culture that it is, if not unthinkable, difficult in the extreme to stand against the principle that the person with the most votes wins. So Republican leadership balked at any program to stop Trump at least in part because they struggled to explain how the nomination could somehow be denied to the candidate in a field of 17 who won by far the most contests and the most votes. The Democrats have run into similar problems with the role of super-delegates.
The case against the Electoral College is strengthened considerably by this strong trend in popular expectation. Whether we will see sustained momentum for reform is a different question.
2. Meanwhile, what about the parties? Ezra Klein has come to the view that parties may be weak but partisanship runs high, and that this complicated combination explains a good bit of what some see to have gone wrong with the nominating processes. Parties do not mediate voter choice: it is not accepted that they should step in against the candidates the voters favor and compel an alternative choice presented as superior in experience, governing credentials, or electability. So the voters decide, and once they have decided, the parties and their partisan fall into line. As Klein explains it, this is the worst of all worlds: weak parties, high partisanship.
The absence of strong parties on the traditional model has been keenly felt in this way, and perhaps in other less visible ones. For example, candidates now rely upon polling data to shape strategy and to adjust as necessary to changed political conditions. All of this is done at headquarters, shaped by sophisticated analytics. And the analytics are highly advanced. A modern campaign cannot operate without them. But genuinely strong parties are built on something more. They would have good intelligence "on the ground" delivered by seasoned party officials and operatives. The state and local party would speak authoritatively on local conditions. It pick up quickly on changes in those conditions not easily accessible through polling.
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.
- Trump and Election Protection in 2016
- The Allure of Reform and A Modest Proposal
- The Transparency-Privacy Trade-Off (or Bargain)
- When the Law Can Seem a Bit Much, Mutch Explains
- 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