Archive for the 'McCain-Feingold' Category

To defend the post-McCain-Feingold version of campaign finance reform, proponents have taken special pains to say that it did not really hurt the political parties. They bounced back, engineered new ways to raise money, became perhaps even stronger. The soft-money the 2002 law took away from them has been replaced by other sources of funding. Online contributions have helped, and so has special new party fundraising authority enacted by Congress in the “Cromnibus.”

But even more important, according to this line of argument, is understanding what a political party is. It is not correct, on this view, to point to the formal institutional party organizations, but parties should be viewed instead as “networks” of allied entities. That would include, for example, interest groups sympathetic to Democrats or Republicans, Super PACs aligned with either major party (sometimes referred to as “shadow parties”), and even Fox or MSNBC.

Now the Campaign Finance Institute has put out new research and commentary in support of this picture of the parties. Having assembled data to show that Super PACs aligned with party interests spent large sums of money in 2016, the CFI declares that there is no cause to “bemoan” the weakness of parties. Parties have “rebounded”: they “have found a way to fight back” after the reforms and Citizens United.

And how did this happen? On this point, CFI words its position delicately. The parties’ recovery can be attributed in part to the “law’s permeability.” The unrestricted funding and spending of Super PACs "looks much like the soft-money the formal parties accepted before the Bipartisan Campaign Reform Act of 2002 (BCRA).”   There are advantages and disadvantages to this development. On the plus side, the "shadow party" PACs don’t have to pretend to be “issue advertising” and can spend on direct advocacy of their candidates. But, more negatively, they have to set up as “independent” of candidates or the institutional parties and cannot coordinate their spending with them.

The New York Times has carried two pieces in the last days on the Internet politics, each making a case for its contribution to degraded democracy. Michael Birnbaum writes about the influence of rightist websites in Europe as both the Netherlands and France head into national elections. Tom Edsall adds a thoughtful, more academic note, interviewing scholars and citing to various studies that generally reinforce a dark message about “democracy, disrupted.”   The Edsall analysis also takes on the question of whether this disruption plays favorites, helping more the left or the right, and he concludes as follows:

There is good reason to think that the disruptive forces at work in the United States — as they expand the universe of the politically engaged and open the debate to millions who previously paid little or no attention — may do more to damage the left than strengthen it. In other words, just as the use of negative campaign ads and campaign finance loopholes to channel suspect contributions eventually became routine, so too will be the use of social media to confuse and mislead the electorate.
This is a significant coupling of concerns about the uses of social media with two of the prominent planks in the campaign finance reform program. Edsall may mean that each disserves democracy in its own way, or that there is an interaction among these developments that is generally helpful to conservative, and inimical to progressive, politics.

What is also unclear is why these means are closely associated with a specified political end. For example, what is it about a “negative campaign ad” that is markedly more useful to the right-wing sponsor? There are times when the anger can be turned in the opposite direction, as Republican Members of Congress recently found in their town hall meetings; and this anger is finding expression through social media, on TV, and surely in the election to come, in negative campaign advertising. Those same angry progressive voices will be amplified only if the required funding is available. “Loopholes”--as some understand Super PACs or (c)(4) issue advocacy to be--will flourish on the left and right alike.

Are There Genuine Issue Ads or Just “Sheep’s Wool”?

December 2, 2016
posted by Bob Bauer

Progressives thinking about the experience with reform have to grapple with its implications for mobilization, for effective political speech and action. As previously noted here, one traditional reform objective – – regulating issue advertising – – bears reconsideration For years, a priority has been to expand the rules to cover certain issue advertising within election seasons. The authors of McCain Feingold settled on what they took to be an objective test--define the election season as a month to two months before an election, and then capture within reporting requirements ads that simply” refer” to a candidate and are directed to his or her electorate. The ads affected would surely be “sham” ads, intended to influence the election, and disclosure of the financing of these “electioneering communications” would be appropriate, as it is in the case of clear-cut campaign advertising.

But is there such a thing as a genuine issue ad--one that is designed to discuss candidates in relation to issues but without, within the four corners of the ad, expressly calling for the candidate’s election or defeat? Or to put it in doctrinal terms, may the government reporting rules reach ads that do not involve either express electoral advocacy or its “functional equivalent”? The Court in McConnell v. Federal Election Commission took it more or less for granted that genuine issue ads would not be subject to mandatory disclosure. 540 U.S. 93, 206 n.88 (2003) (“ [W]e assume that the interests that justify the regulation of campaign speech might not apply to the regulation of genuine issue ads").

In Citizens United, the Supreme Court devoted a line to the seemingly contrary conclusion, suggesting in the most general terms that "the public has an interest in knowing who was speaking about a candidate shortly before an election." Citizens United v. Federal Election Commission, 558 U.S. 310, 369 (2010). But its discussion on this point was short, and it also appeared in a case that involved a communication--a movie--that was plainly intended to influence voter choice. It was decidedly not a case about “genuine” issues speech.

The Independence Institute, a 501(c)(3) organization, has pressed on this issue with a challenge to the application of the reporting rules to an ad lacking either express advocacy or its functional equivalent--i.e. a "genuine issue ad.” The ad named two Senators, one running for election, in appealing for support of pending legislation on criminal justice reform. A three-judge district court last month rejected the claim that the ad was constitutionally protected. The Court relied on the language of Citizens United. It appeared satisfied that even in the case of a genuine issue ad, a reference to a candidate was sufficient to trigger the electioneering communication disclosure requirements. Independence Institute v. Federal Election Commission, No. 14-cv-1500, 2016 WL656396 (D.D.C. November 3, 2016).

The Cycle of Reform “Fixes”

July 11, 2016
posted by Bob Bauer

This is one view of the effects of modern political reform, and here is another, and their conclusions are, in a sense, similar: reforms have not worked as intended. But they don’t have in mind the same failures.

Robert Samuelson thinks the reforms have weakened the political system, undermining political parties and blocking other channels for constructive compromise and effective governance. Isaac Arnsdorf argues that, in the case of lobbying reform, the laws have worsened corrupt practice, not curbed it, and he is most exercised by legislators' ability to wield influence for private profit after leaving office.

The one commentator thinks we have government enfeebled by the unforeseen effects of reform; and the other sees reform to have left government more corrupt. Both analyses travel the familiar route of making a point that it invites the reader to take too far.

To the extent that large contributions are given to secure a political quid pro quo from current and potential office holders, the integrity of our system of representative democracy is undermined. Although the scope of such pernicious practices can never be reliably ascertained, the deeply disturbing examples surfacing after the 1972 election demonstrate that the problem is not an illusory one. 

Buckley v. Valeo, 424 U.S 1, 27.  

This was the magnitude of the conclusion that the Supreme Court drew about the prevalence or appearance of corruption when it upheld the contribution limitations of the Federal Election Campaign Act. The corruption problem was “not… illusory” but its scope could ‘never’ be pinned down.  The Court then cited to the decision of the court below that had offered a few example of pernicious behavior with campaign funds in the 1972 presidential election. That was enough.

In the years following, enough has not proven to be as good as a feast.  And in search of the feast, anyone with a point to make about the campaign finance laws has been pursuing conclusive data to support it.  Corruption, or the absence of corruption, or the different definitions and measures of corruption, have all occasioned argument about the evidence, as has the related but different project of proving the “appearance” of corruption.  Argument about the evidence has yet to be settled and there's every reason to believe that they never will be.

The related but still distinguishable argument about political inequality has meant the same search for clinching proof that policy follows money and makes for a “rigged” system.  This week, the Center for Competitive Politics took after a widely reported paper about the correlation between the aspirations of the wealthy and the manufacture of public policy.  Noting that Rick Hasen and Larry Lessig had made use of the paper in arguing for a political equality theory of regulation, the CCP cited to critics of the scholarship and its conclusions.  In this critical view, which CCP evidently favors, there is substantial agreement across income groups about policy.  So the study that purportedly shows that we have a democracy of the rich cannot survive close scrutiny. CCP suggests that this should bring sharply into question the “lofty solutions” of reformers.