Archive for the 'Super PACs' 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 The soft-money the 2002 law took away from them has been replaced by other sources of funding.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 FEC will be defending the “structure” of the contribution limits this week in the US Court of Appeals for the District of Columbia. The case, Holmes v. Federal Election Commission, tests the constitutionality of the "per election" limits as applied to a donor’s choice to participate only in the one--the general--election. If a donor skips a primary, and wishes only to contribute in the general, she now cannot give the full amount allowed for the election cycle cycle, $5400, but only half of that: $2700, the "per election" limit for the general. The Holmes plaintiffs’ point is that this bifurcation of the limits serves no legitimate anti-corruption purpose. Donors do not potentially corrupt candidates in the primary, or the general, or a run-off: the corruption, if it occurs, is the result of the amounts given through the date that the candidate is elected to office, after which the new officeholder is in a position to return the favor. And the limit Congress settled on to serve this anticorruption interest is the combined allowance for the cycle, $5400, a point that the Supreme Court stressed in McCutcheon.
The problem presented by the bifurcation of the limits is worsened by the messiness of its application. Incumbents and other largely unopposed candidates do well under this system, collecting money for primaries they don’t have to compete in and transferring the money to their general election accounts. Both the candidates in this position and their donors are aware that the money being given to the “primary” is really for the “general.” And a candidate can collect a contribution designated for the general election before the primary election is decided, provided that the candidate escrows the money and does not spend it until after the date of the primary. In this case, the candidate has, in fact, accepted a full cycle contribution of $5400 prior to the general election. It may be subject to a restriction on when it is spent, but the donor looking to make an impression, with a full cycle’s worth of contributions before the primary, will have done so. Or, knowing that a primary candidate is closing in on victory, a donor can give the full primary election amount the day before the primary, and the full general election amount the day after, with confidence that he or she has given $5400 for the general election.
And add to all this that by FEC rule, an opposed candidate who, by operation of state law is not even on the ballot may still raise a "primary" or "general" election contribution in the full amount. The regulation reads:
A primary or general election which is not held because a candidate is unopposed or received a majority of votes in a previous election is a separate election for the purposes of the limitations on contributions of this section. The date on which the election would have been held shall be considered to be the date of the election.
11 C.F.R. 110.1(j)(3).
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.
The voting rights and campaign finance wars have been fought on terrain largely shaped by two major and controversial decisions: the Crawford case on voter ID requirements, and Citizens United on independent spending. Critics have lamented Crawford’s naiveté about the stated value and inevitable partisan misuses of ID requirements, but it seemed that supporters had going for them the “common sense” judgment that voters required to have an ID to board a plane can be reasonably asked to produce one to vote. So one might have thought that Crawford was here to stay, even as the Justice who wrote for the Court, John Paul Stevens, has expressed regret.
Citizens United got more bad press in many quarters for opening up direct corporate political spending and for giving a boost to Super PACs. Its author, Anthony Kennedy, continues to defend it. He points to the silver lining: the court’s brief, arguably cursory, salute to disclosure, even as Kennedy concedes it is not yet working in practice as he had hoped it would. The critics who think the court flipped open the Pandora’s Box of campaign finance have put whatever hopes on the antidote of disclosure, and more speculatively on a constitutional amendment to overturn the case’s core permissiveness.
In light of developments of recent weeks, it is interesting to consider where the law set in motion by these cases is heading.
Justice Ginsburg’s recent press comments have been noted mostly for her openly expressed disdain for the Trump candidacy. Less surprising in the remarks was the Justice’s “impossible dream” that Citizens United be overturned. She has said this before, and since she dissented in that case, there is not much news here, unless anyone still had doubts that for this Justice, the killing off of that decision is a priority.
The comment was reported at the same time as the Complaint filed with the Federal Election Commission by Representative Ted Lieu and others who intend to set into motion the reconsideration the Justice is hoping for. And so it invites an appraisal of its prospects for accomplishing the Justice Ginsburg’s “impossible dream.”
As my colleague Marc Elias has pointed out, the FEC cannot succeed; this is a lost cause. When the Complaint fails, it may do little more than unnecessarily promote the belief that CU is here to stay. It is not clear why this is the best legal maneuver, or the most effective exercise in public communications, in the attack on Speechnow and Citizens United.
Aside from the question of strategy, the Complaint itself is a surprisingly subdued performance. It has a bit the feel of going-through-the-motions: doing the least possible to set up the agency dismissal and the move to the courts. True, the Complainants knew that the outcome at the agency was inevitable and there is time later to build their argument. But the case they preview in the Complaint seems flat and this certainly can’t help the Complainants in their subsequent appeal.