Minnesota and the Frustrations of Judging “Independence”

November 20, 2013
posted by Bob Bauer

Minnesota campaign finance officials are “vexed” by a request for an advisory opinion from an unnamed candidate. She (or he) would like to raise money for an independent expenditure committee that intends to support her—with independent expenditures. Minn. campaign board vexed by candidate’s question regarding fundraising by outside groups, Star Tribune, Nov. 5, 2013, http://www.startribune.com/politics/national/230680961.html. Does this fundraising support make the committee any less independent and unable to spend unlimited sums on her behalf?

The many who shake their heads over the follies of the campaign finance laws are startled that there is any question about the right answer: independence must be just that—absolutely no contact with the candidate. This is, of course, not the meaning that the Supreme Court has conferred on the term “independence.” The committee can keep the necessary distance form the candidate and spend without limit on her behalf by just keeping her out of any role in deciding the type or content of the spending. The well-known theory is that the candidate is at risk if the independent committee goes off in the wrong direction and harms her campaign with an ill-timed or poorly crafted message. This gamble allows the committee to claim that the speech it is paying for is its own, not a joint production with the candidate; the candidate is less likely to feel indebted to a committee whose activities she may not approve of and that may prove injurious to her cause. See Buckley v. Valeo, 424 U.S. 1 (1976).

If this is the case, then the candidate should be able to associate with and support the independent committee without having a hand in what it does with the funds. Federal law has landed in this spot. A federal candidate may attend and speak at the event of an independent committee, provided she explicitly solicits only limited “hard money” and does not participate in any spending decisions. Others attending the event may give unlimited “soft money” and the committee can spend it all for the candidate.

That this is a result that some find strange, if not infuriating, is understandable. But it is not obvious how the rule could work any other way if it is to reflect the meaning the Court has conferred on “independence.” The Court assumes that the candidate will not fall into indebtedness if she is not involved in spending the money and can’t be sure that it will be useful to her campaign. On this understanding, it is irrelevant that the candidate attends a committee fundraising event, or knows and approves of the committee’s leadership, or has any other reason to have hope that the independent enterprise will generate electoral benefits. Critics may complain, and they often point to independent committees staffed with allies and friends of the candidate—but on the Supreme Court’s view of the matter, so what?

The answer, which may contribute to the Minnesota Board’s vexation, lies in the realm of appearances, as do so many other issues in campaign finance. It just does not look right, some will say, for a committee to claim independence when a candidate helps it raise money and rubs elbows with soft money donors at its events. The Star Tribune report on the Minnesota Board’s deliberations suggest that this is a concern: “The board deferred action on an advisory opinion after some members pushed for stronger language to discourage the appearance of coordinated efforts.”

But this problem of appearance links up very imprecisely with the goal of preventing corruption. A candidate could also help raise money for an independent committee without ever stepping foot on its premises. She can promote the committee to its supporters with express appeals for funds, or tout the independent committee’s virtues in media interviews. The presence of the candidate in the company of independent committee officials or at one of its events doesn’t change much, except to add to the irritation of those who don’t think that the Supreme Court’s formulation of independence holds water. But that is a different objection.

As members of the Court were quick to note in the McCutcheon argument, expenditures that are fully independent in fact or appearance can still give rise to candidate indebtedness or its appearance. A candidate without any prior contact with the committee can applaud its efforts and, upon taking office, feel some pressure to reward it. In fact, the candidate might feel entirely beholden to the committee even if she did not approve at the time of its formation or its activities. The candidate could have been wrong about the committee—mistaken in the belief that it would not function to her benefit. Indebtedness does not depend on approval before the fact. Only outcomes matter.

And it works the other way as well, because a candidate who favored the establishment of an independent committee and threw herself into encouraging support for it could discover later that it was badly run or that its strategy was misguided. Then all the goodwill the committee counted on establishing could quickly evaporate and there would be no debts left after the election to be paid.

So it may all seem a mess. It has been suggested that because Court referred to “total” independence, it must have intended to rule out candidate contact like the fundraising support now being considered by the Minnesota Board. See Buckley at 47. This move doesn’t help much, either. It shifts all the attention to the adjective, “total,” when what is required is an understanding of the noun, “independence.” If by independence the court has in mind the independence of spending decisions, then a committee can achieve “total” independence by ushering the candidate out the door after the fundraising event and deciding entirely on its own how to spend the money.

At the root of this issue is the court’s decision to insulate from limits any independent speech at all. When it made that decision, it probably could only define independence in the way that it did—as activity that the candidate did not control and might not work out the way she hoped. The more sweeping standard that is often advocated—a “no contact” rule, or a rule that bars friends and allies from independent activity—largely subordinates independent spending rights to a concern with appearances. It does not obviously reduce the risk of a corrupting indebtedness, unless one assumes that the contacts allowed, or the friends and allies involved, facilitate cheating—that is, actual collusion. But if we suppose a committee and candidate prepared to break the law, then there is no safety in any legal standard of “independence” and the discussion might as well end there, fruitlessly.

Minnesota officials might well be vexed about all this. But their decision is not all that hard.

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