Thinking about the Paths for Campaign Finance Regulation

October 23, 2014
posted by Bob Bauer

Arguments about the prospects for campaign finance regulation now fall broadly into three categories: (1) close up loopholes; patch up the rulebook; (2) wait for scandal to break the logjam; and  (3) rethink the issues.  In recent weeks, we’ve had clear restatements of these alternatives.

Close Up “Loopholes”, Patch Up the Rulebook

This program envisions energetic regulation within existing constitutional to fix breakdown, close loopholes and generally tighten the rulebook. This week, for example, a report published by the Brennan Center examines the problem regulators face in curbing sham independent expenditures after Citizens United. The authors believe there is ample authority to enforce true independence by restricting collusion between the spenders and the candidate they are supported – – to put up defenses against illicit “coordination”. They advocate, among other limitations, prohibiting organizations from declaring independence if the candidate has helped raise any money for them, and they would extend to issue advertising the ban on candidate coordination with outside groups.

Like the Campaign Legal Center, which advocates similar restrictions on coordination, the Brennan Center authors won’t give in the pressures weakening the 1970s reform framework. For example, whatever the Roberts court has done, these analysts do not believe that it deprives the reform movement of the tools necessary to attack the core issues raised by independent and other “outside group” spending.

Note: The Brennan Center is also devoting considerably energy to reconceiving campaign finance jurisprudence. It is publishing proposals to achieve reform within the constitutional case law as it now stands while also promoting thinking about other grounds of regulation that can be urged upon the Court. And, of course, Rick Hasen has stressed for some time the goals of recasting the constitutional basis of regulation as one of political equality and working toward a change in the mind of the Court or in its composition.

Wait for Scandal

On another view, the Roberts Court along with Republican or ideological resistance will continue to block the normal channels of change through the legislative or regulatory process. But as has often been suggested in the past, the expectation is that scandal will eventually materialize and sweep away impediments to reform. The demand for reform is just below the surface, simmering, and requires the outlet—the public pressure– that scandal will provide.

The vigil held for scandal is not merely a waiting game. Those disturbed by contemporary fundraising and spending are laying the groundwork for the perception of scandal, as is evidenced by the proliferating narrative about “dark money”. Then, they predict, something will happen that will be–or will be defined as– scandal, and the case for reform will be launched from that platform.

Rethink the Issues

The view within this category is that neither of the prior approaches are productive. The same arguments will continue, except that with any luck and with determination, the side now losing will win a few, or maybe gain the upper hand for an era or so.

An interest in rethinking the issue might arise from the belief that gridlock on this issue is no better over the long run than gridlock on others, and that winning a few victories today, only to lose them again tomorrow, means endless shifts in regulation and uncertainty about the rules that political actors must follow. The question is whether there is a regulatory program that can secure wider support.

To call this view a “middle ground” would be to sell it short. There is, for example, broad support for disclosure, but it has run into the objection that public reporting of individual donor information presents unacceptable risks of harassment or invasion of privacy. Bruce Cain has argued that there is an alternative—he calls it semi-disclosure—that could provide important detail about spending without exposing personal information to public view and misuse.

And beyond what only legislation can accomplish, the FEC is calling for public comments on all aspects of the current regulatory system and will hear from all sides. This is also an opportunity to rethink the issues.

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