The Limits of “The New Soft Money”

June 19, 2014
posted by Bob Bauer

The Tokaji-Strause report on independent spending is an enterprising and interesting examination of how a sample of politicians and political operatives experience the expanding universe of “outside money.”  It aspires to and largely achieves fair-mindedness in describing the limits of its project and of the conclusions drawn from this kind of research material.  And in a campaign finance debate in which the opposing sides scour fresh publications for rhetorical advantage, it offers something to both sides.

But in the end, the report most strikingly  exhibits tensions within its analysis of major issues—a notable conflict  between two principal findings on “coordination,” and a mismatch between analysis and supporting evidence in the discussion of the baleful influence of money on official behavior.

“Message discipline” v. cooperation with independent groups

The study reports that candidates have lost control of their campaigns to the independent groups: they cannot maintain “message discipline” when these outside groups are buying up so much airtime for their own cases to the voters. But according to the same study those candidates are apparently finding a host of innovative ways to  cooperate—which is not to say, illegally coordinate—with the independent groups.  These are two central findings, one that emphasizes that the spending is truly independent and the other indicating that it may not be.

One possibility is that there is only so much cooperation, or that it is only marginally effective.  Whatever the case may be, the report does not lend itself to a clear conclusion about which of the problems—lack of control or too much control—the reader should be worried about.

One is reminded of the old joke about two grouchy seniors expressing unhappiness with their meal at a restaurant: “the food is poison,” says one, and the other replies: “yes and such small portions.”  Here we have interviewees lamenting the loss of control but also assuring the study authors that there is cooperation with the independent groups that is going on all over the place.


Press and pundits may be drawn to the Report’s discussion of whether politicians receive “threats” from independent groups that their errant votes or misplaced programmatic commitment will be punished—threats of the “do this or else” category.  To their credit, the authors find little evidence that such direct, actual threats, from spender to politician, are common.  They report that it is “rare” (p. 81), but it is apparently even less frequent than that, on the evidence they offer. The one interviewee, former Senator Ben Nelson, who reports a threat says he faced it only once in 20 years and knows of no other politician with a similar experience.

What Tokaji and Strause mostly show is that politicians may feel threatened by spending against them, and that the prospect of this spending may weigh on them as they consider the political implications of their actions. If true, at least of some politicians, it is also hardly surprising. Political risks and dangers—experienced by politicians as threats—come in all forms , including the denial of endorsements, unfavorable editorial opinion and press coverage, and interest group scoring of voting records. The nature and extent of the threat will depend on the politician’s individual circumstances. And in the case of independent spending, the threat experienced by the politician would not depend on the existence or absence of coordination, or even of any particular interest on the part of the spender in extorting the desired political behavior (rather than just having the candidate it prefers win the race).

What, then, to do with this discussion of “threats,” which carries most of the weight of the study’s analysis of the corruptive potential of this spending?  The social science literature strongly indicates that the influences on officeholder decision-making are varied and complex.  Campaign finance does not rank at the top of the most influential of the factors.  To isolate  campaign spending and the way that politicians experience it independently as a “threat” elevates its significance by simplifying the world in which politicians operate.  It is the problem we see in this debate of assigning to campaign finance its own “eco-system” and ignoring all the ways that it is not self-contained.

The Tokaji-Strause Report and the campaign finance  debate

The authors of this Report are well-respected, and Dan Tokaji has been prominent in the field of election law, in voting rights as well as campaign finance, for many years. He has strong views, which he has expressed elsewhere, as in a piece stressing his commitment to “electoral and policy-making equality” as a ground of regulation and lamenting the “sorry state” of American campaign finance law.  But in this Report, he and his co-author endeavor to present their findings objectively and to avoid policy prescriptions, concluding only that more empirical research would be useful.

And, as noted, there is some help for those on either side of the debate who may be looking for it. Reformers will be vindicated in their view that soft money once again is on the rise, washing away the benefits of McCain-Feingold, while critics of regulated political spending will note that the report finds no evidence that the campaign law is being broken or that soft money is implicated in actual quid pro quo corruption.

On balance, however, the Report will be noted for the “top lines”— emphasis on techniques of candidate “cooperation” with independent groups, on the officeholder experience of “threats” from independent groups, and on what the authors take to be evidence of campaign finance’s contributions to polarization and eroded public trust in government.  So  it is a report entirely consistent with the reform community’s view that American campaign finance is in a “sorry state.”  As the authors acknowledge,  it is unlikely that they will change minds and, for the reasons discussed here and in future postings, there are difficulties in their approach that also limit their chance of altering the course of the debate.

Postscript: the authors do adopt an admirably neutral tone and strive for balance, which is not a small thing in these discussions.  The same cannot be said for some of those who share their view of the “sorry state” of campaign finance. The Campaign Legal Center, whose Senior Counsel, Paul Ryan, is acknowledged by the authors for his support, tweeted out this comment last night on a panel convened to discuss the Report:

LIVE NOW: Larry Noble takes on a stacked panel of anti-reformers / “Dark Money” defenders in discussion of The New Soft Money report

So today looks just like yesterday and the day before, notwithstanding the efforts of Dan Tokaji and Renata Strause.


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