Fresh Questions About “Coordination” Rules

April 3, 2015
posted by Bob Bauer

The Brennan Center regularly devotes space to a review of the literature on the money-in-politics debate, and this week, Benjamin Brickner discusses an insightful paper on “coordination” by Professor Michael Gilbert of the University of Virginia and Brian Barnes, a J.D. candidate there.  The authors present the case that anti-coordination rules don’t operate to prevent corruption achieved through independent spending–and that they can’t, even if strengthened.  There are too many ways around coordination restrictions: a spender can comply with the law, spending “independently” for a candidate, but still offer the politician value that can be “cashed in” later.  If coordination rules do not deter corruption but do limit speech, then their constitutionality is thrown into question.

It is not difficult for an independent group to figure out what the politician may need and appreciate. Public sources of useful information are plentiful and these can be supplemented by private polling and other expert advice; and if there is a risk of missing the mark and timing or targeting an ad imperfectly, there remains value to be conveyed.  As Gilbert and Barnes point out, this is a question only of the efficiency of the expenditure, and some ground can be made up by just spending more money.  A politician can still be grateful for $75,000 of discounted benefit from an ad that cost $100,000.  As Gilbert and Barnes frame the point, “[U]nless the law prohibits candidates from publicizing their platforms and strategies, and outsiders from paying attention, then outsiders will always have enough information to make expenditures that convey at least some value.”

And corrupt deals can be stuck without “coordinating” in violation of existing rules. Bargaining over a paid ad needs to be distinguished from making a corrupt deal that value of some kind will be provided in return for an official act.  The politician need not know that payment will be in the form of an ad, and she does not have to request, control or directly influence the timing or content of an ad so long as she has confidence that ads eventually run will have this threshold value: “some value,” perhaps enhanced by the level of funding that is committed to it.

The tightening of coordination rules can’t solve this problem.  Mr. Brickner seems to believe otherwise. But the example of one reform proposal, among the more aggressive, tends to support a skeptical view.   It would compel a finding of “coordination” in the event that the candidate privately or publicly expresses appreciation for or approval of an ad.  If constitutional—not a condition this proposal could easily satisfy—it still presents little problem for the value exchange described by Gilbert and Barnes.  The well-advised candidate would simply say nothing about any ad, anywhere and at any time, and press questions could be answered with a simple “I don’t discuss these matters.”  This is a key point made by Gilbert and Barnes: discussion of the ad is not necessary to the extraction of exchange of value in which the independent expenditure is the “pay-off”—the quid of the quid pro quo.

The problem here can be traced back to the beginning.  Independent groups now stirring up controversy are not the ones the Court in Buckley had in mind: outfits springing up to voice voice concerns as they please, indifferent or insensitive to the candidate’s needs. Now we have highly professional groups finely tuned to those needs and savvy about satisfying them.

The first type of group envisioned by the Buckley Court might be seen as dedicated to expressing its own reasons for wishing a candidate elected or defeated.  The second type, at the center of the “coordination” debate today, is more looking to speak as the candidate would on her own behalf.  The conception of independence underlying these two cases are quite different.  It is a difference between independence of advocacy and strategy, and independence understood as keeping a group from speaking too much like the candidate.

When reformers proposing tighter coordination rules speak of the requirement of “total independence,”  the second type is the one they have in mind – – no close ties to the candidate, no sophisticated means of acquiring  information about what broadcast appeals would be most consistent with her campaign’s strategic interests, no dedication to mimicking the candidate’s arguments or themes on the stump or on the air.  The reform program is keep independent speech from becoming too helpfully like the candidate’s own.   It is a dubious proposition and it has nothing to do with illegal coordination.

When the Court was doing the best it could, on the fly, in 1976, its conception of independence may have made some sense. As Gilbert and Barnes show, it makes little sense now.

Concern about the rise of Super PACs and their independent spending can be based on reasons other than the risk of corruption: the danger that they will weaken or eclipse the parties, or raise costs and other complications for candidates in running their campaigns, or worsen the ills as some perceive them of “negative campaigns,” and more.  But “corruption” is not the problem, if the problem is one that rules to prevent “coordination” rules are expected to solve.

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