Reform and Mobilization

November 21, 2016
posted by Bob Bauer

The Brennan Center’s Daniel Weiner has called on the reform community to engage in self-examination and consider the changes that, in the light of the experience of this last election, are now due. He notes that money did not play the expected role, and that the role it did play, as in the case of Super PACs, underscores the imbalance between them and the political parties. He suggests that campaign finance reform could include additional liberalization of party financing. Weiner would proceed cautiously–he is not giving up on the Buckley regulatory model–but he and his colleagues at the Center have commendably tried to open up a wider, fresher discussion of reform alternatives.

But this may be the key sentence of his essay:

Finally, we should also be asking how campaign finance reform relates to the broader constellation of proposals to create a democracy that works for everyone. So many aspects of the 2016 election are deeply troubling, including documented voter suppression, the ongoing effects of partisan gerrymandering, and — at least for some — the fact that the winner of the popular vote lost the electoral college for the second time in under two decades. They call for solutions rooted in the same values of fairness, accountability, and inclusion that animate the strongest campaign finance reform ideas. It would be a great mistake to silo the latter from the broader push for a more just and equitable political system.

Weiner would have the reform enterprise be integrated–the campaign finance part would fit with the others. There would be no “silo,” in which, as one reformer once described another’s preoccupation with money-in-politics, campaign finance is THE thing. Campaign finance would have its place within a scheme of reform that is unified around the themes of fairness, accountability and inclusion. This is the shape of reform as Weiner envisions it in the “age of Trump.”

Missing from these otherwise sensible criteria for reform are the requirements of mobilization, of effective political action.   To insist that reform’s design must take into account the needs of political association and activism is not to consign to a lower rung, or to read out of the plan altogether, the values of “fairness, accountability and inclusion.”   But at a time when progressives are sobered by the looming contest over large questions of national values and policy, a reform compatible with the needs of an energetic politics seems fairly urgent.

A reform program developed for campaign finance might respond to this need in various ways. At its simplest, less controversial, it would favor reducing the cost of political action by promoting clarity and lowering the cost of compliance. Granted, critics will say that no legal regime is simpler than the one produced for all intents and purposes by the current paralysis of the FEC, in part brought on by the turn against regulation in Supreme Court jurisprudence. On major issues, the FEC cannot act. It remains a messy and costly situation, however. Judging levels of legal risk requires some fair certainty about what the rules are and the circumstances in which they will be enforced. A legal regime in disrepair cannot be the goal: A better one would function efficiently to produce and enforce sensible rules.

Further serving the needs of an effective program of political action might be reforms directed to the following:

Issue advocacy. As noted here previously, progressives have reason to reconsider their intense desire to regulate varieties of issue advocacy. For years now, this question has been front and center in the reform program. The objective has been to move away from the stricter “express advocacy” test: Issues speech becomes campaign speech by reference to a number of factors, such as timing, and the most “reasonable” construction of the purpose of a message. Whether administered by the FEC in the case of political committees, or the IRS in the case of social welfare organizations, these tests subject political action to serious legal uncertainties. To offer one example, with significant future application, there should be plenty of room for criticisms of “Trumpism” without having to defend this as a “campaign-related” communication about Trump.

Coordination among allies: Effective coalitions, both the formal and the more ad hoc variety, demand close collaboration among political allies, and the rules now restricting “coordination” seem unsatisfactory all around. They do not appease those worried about enforcement of the contribution limits, but they also seem to political actors overly complex and more of a burden on political association than justified by legitimate enforcement objectives.

The “transparency” thresholds:  The law now allows for inadequate transparency of some the largest donations along with too much reporting of smaller-scale activity, including contributions from the “small donor.”   It is a skewed arrangement; it presents an ongoing threat to full participation at the grassroots level.   Keeping transparency reform targeted at the “big,” and providing relief at the lower, “smaller” levels of involvement, is a boon to political mobilization.

The effects of Citizens United in the workplace: On one deeply problematic reading of the decision, there is now increased risk of workplace coercion. A reform program built around mobilization would include a strong response to infringements of this kind on free political choice.

These are some of the elements of reform responsive to the concern with making room for a strong politics of mobilization or action. Certainly Daniel Weiner correctly looks for campaign finance to be connected to other components of the reform agenda, including–and critically–voting rights. He is right, too, to insist on accountability, inclusion and fairness. Not to be left out of all this is what it will take to build the crowd, deliver the message, and persuade.

Category: political reform

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