In their new Brookings paper, Tom Mann and Tony Corrado wish to debunk the notion that changes in campaign finance law could temper political polarization.  They dispute the suggestion that more money to political parties would better equip party leaders to run their caucuses.  Then they turn attention to small donors and question the belief that these sources of giving, rallied by “partisan taunting and ideological appeals,” exacerbate political division.  Id. at 15.  In sum, Mann and Corrado warn against relaxing protections against big money influence.  It won’t help strengthen the parties, they say, and it is wrong to assume that a reliance on smaller donations will worsen polarization.

But it is apparent from the way they argue their case that Mann and Corrado have a mission and that this mission has shaped the framing of the issue, their treatment of the evidence and their conclusion.  It is a time of keen peril for the old reform school of thought, culminating in McCain-Feingold, and Mann and Corrado are among its most prominent defenders.  They have had to endure heavy damage to their position: stalemate at the FEC, the Roberts Court, defections within the reform coalition, and scholarship that challenges premises about the effects of reform. They face a new case for de-regulation—liberalized party financing to alleviate polarization—and they are moving to fend it off.

This produces a fair amount of hedging and qualification.  There are claims  they are challenging or questioning that Mann and Corrado find “hard to believe” or “not particularly promising”; certain outcomes are “not likely” “not obviously,” or “not necessarily” to be expected. Id. at 16, 18.  To the extent that they are counseling care in the evaluation of the evidence, that is all to the good, of course, but their overriding purpose is weaken the case for deregulation of party finances as a means of combating polarization.   If  de-regulated  will “not likely” or “not obviously” help resist the tide of polarization, then we are left with the “downsides of such a deregulatory move,” which they describe as:

More direct courting of large donors, more pressure within party councils from mega-donors, more opportunities for shakedowns of private citizens (of the legal sword) by party and elected officials, and more conflicts of interest.

Id. at 18.  They make clear that they view the current state of affairs in campaign finance as one of “problematic disclosure, jarring presence of multimillion-dollar players, and potential impact on the integrity, accountability, and legitimacy of the political system.” Id. at 6. This is their destination: the argument that in the absence of regulation conforming to the familiar model, such as the tight restriction on party finances at the heart of McCain-Feingold, bad things will happen.

The strategy of their paper is to suggest that we can’t know—and might doubt—whether de-regulating this aspect of campaign finance will help with the problem of polarization, but that we do know that big money produces ill effects, namely actual corruption or its appearance.  But with this move, they slip into the discussion a set of assumptions about current regulation’s positive effects that are “not obviously,” “not likely” or “not necessarily” true.  Indeed there is evidence giving plentiful grounds for doubt.  If the case for regulation as we now have it has been shaken by the experience of recent years, then an experiment with de-regulatory measures tailored to other concerns, such as polarization, may well pass the cost-benefit test.

Any turn toward evaluating campaign finance laws’ effects on various features of democratic governance, and away from fixating on “corruption,” is unsettling to the established reform community. This is more the case than ever in the wake of McCutcheon, which stressed a narrow conception of the corruption Congress could regulate. That the Court delivered this judgment while striking down a party contribution limit  added to the sting of defeat for the reform community, just 12 years after it successfully lobbied for the McCain-Feingold’s extensive controls on party funding.

These are hard times for the traditional reform program.  So it is not surprising that able advocates like Tom Mann and Tony Corrado are concerned about the prospects for a “serious pushback to the broader deregulation of campaign finance now underway.” Id. at 18.

The alternative is to cast off the preconceptions and strategies of other eras and to re-think campaign finance from the ground up.  A thorough reconsideration does not mean giving up on any and all measures to address corruption.  It would include, however, an openness to other effects of campaign finance and different objectives in determining the scope of regulation—and de-regulation.  It would take into account, as Rick Pildes has written, that “our campaign finance laws for too long have encouraged the centripetal, fragmenting forces in American democracy” and that the “best the law can do is to encourage the flow of money in one direction rather than another,” more toward the political parties.

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