Let’s first repay the compliment: Larry Noble is knowledgeable and experienced, and he has devoted earnestly and out of genuine conviction the better part of his professional life to the cause of campaign finance reform.  He has worked and occupied senior positions at Americans for Campaign Reform, the Center for Responsive Politics, and the Federal Election Commission, and he is now at the Campaign Legal Center.

Larry now takes exception to this posting questioning whether campaign finance regulation in its current form, and in particular the rules restricting “coordination,” have served progressive political interests.  He lodges his objection energetically and, in this one reply, exhibits the reform establishment’s defensive argumentative strategies, misconceived legal positions, and failure to appreciate the requirements of effective political practice, all of which have contributed to its present troubles.

The Argumentative Strategy

Here one is back to the reasoning found on this topic in prominent editorial pages. Those who criticize the reforms of recent years are in the wrong, in a moral sense of the term. Larry cites various motivations of the critics, as follows:

Some comes from conservatives who believe it’s really a cover to push some sort of substantive Democratic/liberal agenda. Others are fine with reducing First Amendment speech and representative democracy into mere commodities to be bought and sold, and approve of the idea that money can and should buy political power.  And some of those people are Big Money Democrats who believe the party would be better off with fewer campaign finance restrictions and less disclosure so they could compete for wealthy special interest money to elect candidates who support socially progressive ideas, at least as long as those ideas don’t conflict with their business interests.  

There you have it: questioning of campaign finance regulation is motivated by partisan interests or suspicions, or it is cynical and indifferent to democratic politics. There is apparently no principled basis for criticizing the traditional reform program dating back to the early 1970s.

So it is no surprise that Larry would describe me as one who “often frames his opposition to campaign finance regulation as questions regarding the wisdom of the law.”  He sees criticism of the law and “wisdom” as inconsistent: so I must be putting on an act.  It seems that one cannot have legitimate, well-founded doubts about the extent to which campaign finance law has infringed on First Amendment interests, or about its efficacy, or a combination of both.

Does this matter?  It is worth noting as a familiar move, which is growing more common as the establishment reform program and its premises come into question.

The Law on Coordination:

Here Larry tries to confuse the issue and ends being merely confusing. He thinks this statement from the posting is erroneous:

[T]he theory behind keeping candidates from coordinating with “outside group” issue advocacy is that candidates have to account for the benefits they receive from associating with their allies

And he believes that it is in error, because the Supreme Court has distinguished between independent expenditures and contributions, and it is only “coordination” that is prohibited or limited, which does not in his view impede cooperation on issue campaigns and their allies.

What is an “ally,” as it appears in the sentence he cites?  Oxford defines one as follows: n. (pl. allies) a person or organization that cooperates with another.  Concise Oxford English Dictionary (12th Ed.2011).  An “ally” then is a partner; allies work alongside one another; they communicate and coordinate.  If the campaign finance laws require “allies” to keep their distance from one another, functioning independently to avoid legal liability, then the theory as stated is correct. Contrary to what Larry says, coordination is “about a candidate associating with his or her allies.”

Larry tries in two other ways to minimize the impact of the anti-coordination rules.  First, he would separate the candidate from the elected official, allowing the official to do what the candidate would be forbidden from doing: communicate with allies about issues.  But it is precisely the candidates whose interests are at issue here.  The point in the posting is about political action, in a campaign, with the full support of allies reinforcing one another in the communication to voters about the positions they share on issues.

Larry also wishes to make a separate case out of paid advertising, and to suggest that only the coordination of this type of spending among allies is restricted and that it is rightly singled out because “it is hard to imagine anything more beneficial to a candidate.”   In fact, coordination may be restricted under two separate provisions, one that is limited to paid advertising and another—in ways not clear—that is not.  11 C.F.R. § 109.21 (a), (b). In any event, it is little comfort to progressive candidates and their allies to hear that the full weight of the law will only fall on them if they use the paid mass media.  The Koch brothers spend extravagantly for advertising; Karl Rove and his confederates spend gobs of cash on it.  Progressive candidates and their allies have every reason to respond in kind and  to be concerned about the consequences if they do not.

Finally, one has to note that Larry’s Campaign Legal Center supports a definition of coordination that would legally link a candidate to an issues organization, triggering spending limits for the organization, if the candidate merely speaks approvingly in public or in private of the organization’s advertising.  That’s all, with no actual collaboration on this ad, just after-the-fact expression of agreement: “If a candidate publicly or privately endorses or approves of an organization’s expenditure benefiting that candidate or any of the organization’s activities, then the expenditures of such organization shall be deemed coordinated with such candidate.”  Larry’s  position should be evaluated in light of his employer’s view of  how the law should treat allies and coalition partners.


As one might expect, Larry believes that if candidates and their allies “coordinate” around issue advertising, corruption will follow. He makes the further and remarkable assertion that candidates will coordinate only with the organizations that possess the most resources.  They will put the lure of money first, ahead of their campaign themes, strategies, commitments or personal convictions.  In his example, the candidate’s choice of position on  minimum wage increases will depend on which organization, for or against, has the most money to spend for his benefit.

It is hard to understand where Larry has gotten this idea. It is certainly not found in the extensive studies of how politicians behave, which generally and consistently tend to show that “ideology, party, and constituency”—not to mention “the political climate of the times (and) public opinion”—rank ahead of campaign contributions as motivations for official action.  Schlozman, Verba and Brady, The Unheavenly Chorus: Unequal Political Voice and the Broken Promise of American Democracy (2012) at 291, 306. See also Stephen G. Bronars and John R. Lott, Jr., Do Campaign Donations Alter how a Politician Votes?, 40 Journal of Law and Economics, No. 2 pp. 317-350 (Oct. 1997), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=271269.

At best, whatever evidence there is for Larry’s proposition is “mixed” and suggests a “complexity” in the functioning of the political process that he and his colleagues in the established reform movement are loath to embrace.  Schlozman et. al. at 287, 289.   What is left of Larry’s position is a notion that, on balance, we are better off fretting about corruption on a strained theory about what produces it than give candidates the right to work with allies on issues.

And it is issues we are talking about here—not express advocacy or its functional equivalent.  By definition, the candidate will be working with organizations that share his position the issues, and it is not clear how a “bribe” or anything like it arises in these circumstances.  If the Democratic nominee in 2016 is grateful to its allies for their contributions to victory—if some of share of the credit is given to vigorous issues advocacy by Planned Parenthood or the Human Rights Campaign Fund—we should be neither surprised nor alarmed.  And if, as the reform community tells us all the time, the degree of obligation incurred is not much different when the expenditure is “independent,” then there seems little use in hounding the candidate and his or her supporters over these communications when they are “coordinated.”

Politics and Progressive History

Larry does not engage at length with either of the examples offered in the posting of the importance to progressive politics of coordinated issues campaigns involving candidates and progressive allies.  When he ventures a little farther into that territory, he stumbles badly.  He says that the anti-war movement relied on action because all the money was being spent on the other side.

That was certainly not Eugene McCarthy’s view.  He long held that he could not have challenged Lyndon Johnson and driven out his campaign for re-election if he could not have drawn on the support of wealthy progressive donors. Partly for that reason, and for others, he was a biting critic of campaign finance regulation, writing a book on the topic, entitled somewhat dramatically The Ultimate Tyranny (1980).   And 1968 was not the only example of progressive anti-war politics funded in part with what Larry calls “big money.”  The 2004 opposition to the Iraq War and the re-election of George W. Bush depended on large sums provided by George Soros and Peter Lewis, among others—and required the organizations that accepted the money to defend against legal actions and, eventually, to pay civil penalties.

Was money spent on the other side?  Without a doubt.  But the anti-war forces needed it, too, and its success in ending President Johnson’s political career depended in part, and not a small part, in having funds at a crucial time when McCarthy was an unknown and Johnson’s second term seemed a sure bet.  And Nixon, with all his access to Big Money, won the general election by a hair, after a surge toward the end by the Democratic nominee, Hubert Humphrey, that owed much the support of an “outside group”—organized labor.


This is the nature of the Larry’s reply—a reply that Rick finds to be “powerful”. It would be interesting to hear more from Rick about why he thinks so.

If progressives are expected to support the full campaign finance reform program as an article of faith—a creedal commitment, something like a condition of membership in “the club”—the reform movement’s struggles will continue and may worsen. But if there is a genuine interest in adapting the reform program to the requirements of effective political action, facilitating grassroots mobilization and encouraging coalition-building around issues, the precipitous decline in the reform program’s fortunes might be slowed or arrested.

For this to happen, reform community advocates will have break free from the hold of the past and an attachment to old styles of thinking, and examine closely how forms of regulation of campaign finance like the coordination rules might inhibit effective political action without yielding meaningful, measurable gains in corruption-free government or public confidence.  And progressives in their choice of models of political reform should look back on what has worked for them and what has not, and what will be needed to win the fights that lie ahead.

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