The 2016 Election and the Coming Reform Debate

October 6, 2016
posted by Bob Bauer

A partial picture of campaign finance in 2016, with much still to learn, suggests that the fully rounded-out version may feature surprises and interesting twists. It will certainly influence, perhaps even redirect, the debate over reform.

For example:

The aggressively “outsider” Republican nominee is relying on the party apparatus to fund the basics of his campaign. Trump is succeeding with on-line fundraising, as one might expect from outsiders, but it is not enough without the party doing, or attempting to do, what is needed. How well will the party do? Meanwhile, the Super PACs have been slow to extend their support to this candidate of self-declared if disputed wealth: while this may change in the weeks ahead, the wealthy have so far declined to shower their funds on this candidacy, instead putting much of their resources into congressional races.

On the Democratic side, the Super PACs are active: the Washington Post’s Matea Gold and Anu Narayanswamy find that “once-reluctant Democrats have fully embraced” these entities as key requirements for being competitive. In the primaries, however, these PACs were a point of controversy and small donors financed an insurgent, outsider candidacy that was fully competitive with what the front-running candidate from within the party could muster. Meanwhile, while the rallying cry for reform remains Citizens United, the most prominent money behind the Super PACs money is individual and not corporate.

Any year can present in unusual fashion and it is hazardous to put too much weight on the experience with presidential elections or to overgeneralize from it. But in the months ahead, it is an experience that will be cited and argued over, and it will have its effect. One conclusion drawn may well be that we still don’t know how the crazy-quilt campaign finance system influences the politics of the campaigns—favoring or disfavoring parties, opening (through the Internet) or narrowing (through the Super PACs) participation, exacerbating or balanced out incumbent advantage.

Beyond these considerations are the venerable reform objectives of controlling corruption and promoting equality. Jeffrey Toobin in The New Yorker speculates about the implications of a Clinton victory for the confirmation of a new Justice and a new Supreme Court majority willing to revisit Citizens United.  He asked Pam Karlan and Heather Gerken for their views and each splashes cold water on any excessive optimism that the court, even if it changed course, would make much of a difference to the accomplishment of traditional reform objectives.

Professor Karlan suggests that while Citizens United is a “shorthand” for the role of money in politics, that decision has little to do with the problem seen in campaign finance and its demise will not solve it. Professor Gerken does not go that far, but she does not see the Court as the prime mover in reform. Congress would have to act first, regulating Super PACs and other “shadow” groups, and she doubts that it will.

To discover two nationally recognized experts minimizing the significance of Citizens United, at least as a major source of the system’s failings, will surprise and frustrate many New Yorker readers. But these scholars have the better part of the argument. Citizens United is one among a number of reasons why the reform argument has been misdirected. It is not that the case is insignificant: it surely is, at least in this sense: the Court narrowed the options available to a reform-minded legislature in restricting money flows. A very different question is whether, if it could pursue those options the legislature could effectively regulate the amounts and sources of the money spent on campaigns. The history before Citizens United suggests the answer.

Professor Gerken could be right that Citizens United is less of an obstacle to reform than a Congress unwilling to act. Of course, Congress can now blame this reluctance on the Supreme Court.   “What,” legislators might ask, “can we do—the Court has laid out strict constitutional limits.” This may overjoy some legislators, while others will speak sorrowfully of their powerlessness, but in both cases, Citizens United is a handy explanation for inaction.

There are two further developments that may complicate the reform debate.

The first is one discussed here before, namely, the realization within progressive ranks, historically most committed to reform, that the amount of money that is “too much” depends entirely on what you want to accomplish. It is difficult to find anyone in this group who questions the need for the application of overwhelming resources to defeat Donald Trump. Among those seeking to a comparably intense degree the defeat of the Democratic nominee, there is the same “no-holds-barred” mentality. In this cycle, the sums available for these purposes are quite tidy sums, and there is no belief on either side that the level of spending is somehow disproportionate to the goal.

A second complication is the evolving nature, role and public perception of media organizations. On the right and on the left, and whether wrongheaded or not, the charge is similar: “the media” is seen to take sides and allocate its resources accordingly. Every broadside directed against the Wall Street Journal and Fox is answered with one against the NYT or MSNBC. From the standpoint of many partisans, this is all just more campaign spending. This point stands regardless of other motives that may also drive the allocation of media resources, such as the pursuit of ratings in the allocation of airtime to Donald Trump during the primaries. In either case, whether for politics or profit, the media corporations’ coverage may increasingly be a factor in the threat environment to which parties and candidates respond in deciding what level of resources they need.

There is connection here, of course, to Citizens United, famous in part for Justice Kennedy’s suggestion that media corporations are like any other, not entitled to privileged constitutional treatment, and that their function is therefore best protected by seeing them that way. It seems that more and more major media entities are seen that way.

So the campaign finance “system” is not today what it was only a few years ago, and as more is understood about the change, the less it makes sense for the reform program to remain the same in the vain hope that the change can be simply undone.

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