Below is the text of a presentation to be delivered today for an American Constititution Society panel in Philadelphia, on the topic of "Can Campaign Finance Reform Actually Work?".

Can Campaign Finance Reform Actually Work?

Comments Prepared for an American Constitutional Society Panel in Philadelphia

Bob Bauer

June 5, 2008

Enforcement Expectations and Hard Calls.

     The first question in judging the effectiveness of enforcement is what we wish to have enforced.  On the basics, the law has been plentifully enforced.  Contributions limits are enforced; disclosure requirements are enforced; most, for that matter, of the Code of Federal Regulations implementing the federal law is enforced.  Not always within the same election cycle as the occurrence of the violation, and not always with the degree of mercilessness in the setting of fines that critics call for:  but, still, enforced. 

     Even the parts of the Code that govern the spending of unions and corporations—spending considered under the campaign finance laws, in an unfortunate equation of unions and corporations, "soft money"—have been enforced more effectively than many suspect, with real consequences.  Consider the corporate "facilitation" rules.  A corporation may pay millions in fines if its lobbyists or executives use the company messenger, or its support staff, or other facilities, when raising money for federal candidates.  Now, companies still run PACs—many have flocked under regulatory pressure to this staid alternative for achieving political influence—and their executives become Pioneers and Rangers and raise money for candidates.  But these activities are not untouched, and they are not unconstrained, by regulation.

     Enforcement gets a bad name in the federal scheme because expectations get away from us and more is asked of the law than it can ever give.  There are hard cases in campaign finance law:  there just are, and saying it isn't so—oversimplifying the choices regulators have to make—is an intellectual and policy dead-end.  It is easy enough to point out the real constitutional limits the law is always running up against.  Even beyond this, there are tough calls to make, which spell the difference between applying the law so that it is comprehensible and rationally administrable, on the one hand, and imposing counter-intuitively complex requirements bearing little relationship to governmental hygiene but sowing misery and confusion throughout the community of the politically active.

     For example, can one candidate endorse another, in a paid ad, without there being a reportable contribution from the endorsee to the endorser—because the endorsee is paying for the airtime and therefore for the free exposure of the endorser?  So it appeared, and so the FEC held, until it promulgated a special exception.

     Small point, perhaps, but it makes a difference if the election laws restrict one candidate's endorsement of another.  On these and other issues, the FEC has looked for a way out, for a sensible solution:  yes, it is enforcing the law, but to enforce the law is not to so encumber it with leaden, unmanageable, impractical and unintelligible interpretations that the law rapidly has the credibility leeched right out of it.

     Or, in honor of my host Adam Bonin, I would cite the effect of the campaign finance laws on the use of the Internet—blogging and the like—for campaign-related purposes.  Adam was a leader in a major debate before the Federal Election Commission over rules for Internet political activity.

     The FEC had first adopted a broad exemption from the law for his activity.  Reform organizations and reform advocates—including the presumptive Republican nominee for President—sued and won a Court order directing the agency to reconsider.  Through the advocacy of Adam and others, the agency crafted rules that protected the widest zone of Internet politics—bringing on-line reporting and commentary within the media exemption and providing extensive protection for blogging and email, even when coordinated with a candidate or party.  The standard restrictions were applied primarily to any payments made to place on-line advertising on another person’s web site.

     Was the law then enforced?  It was, in a manner suitable to the type of activity regulated (though I would have favored even more extensive de-regulation).  Were the various allowances for blogging or other uncompensated individual Internet speech properly considered "loopholes," representing a flight from regulation?  No, contrary to the style of criticism so popular in commentary about the campaign finance laws, any intentional relaxation of the rules, or gap in its coverage, or prudence in applying the law in challenging or unforeseen circumstances, is not evidence of nefarious loophole creation.

     And a last point of some importance is whether the campaign finance laws should be judged by the continued role of money in politics.  Money will continue to play a role in politics.  If we imagine otherwise, then the FEC will be a grave disappointment, since it will be easy to assume—and wrongly assumed—that money would not figure so prominently if the government were doing its job.

     The campaign finance laws have their part to play in establishing equitable rules for participation in the political process.  The determination of what that part should be—the goals we establish for the design of those laws—will and should shape our view of what constitutes meaningful enforcement.

Enforcement and Association.

     Then there is further question of the legitimate, indeed vital, activities that the law, if carelessly or thoughtlessly enforced, may be encroaching upon.  Here we have a problem:  in campaign finance law, misshapen constitutional doctrine has eroded the right of association.  One could say that it has been run almost completely out of standard campaign finance analysis.

     Now there is glimmer of a revival in the 2006 case of Randall v. Sorrell, involving the effect of Vermont’s contribution limits on a party’s ability to coordinate with its candidate.  Vermont’s limits were low, $200 or $400, depending on the level of the race, and the Supreme Court concluded that these sums "would severely limit the ability of a party to assist its candidates’ campaigns by engaging in coordinated spending on advertising, candidate events, voter lists, mass mailings, even yard signs."  These limits would, as the Court summed it up, "severely inhibit collective political activity."

     Overall, however, campaign finance regulation turns on individual, not group or association rights.  When the Court turned any sustained attention to associational rights analysis, as it did in the 2003 McConnell case entertaining a challenge to McCain-Feingold, the Court expended little energy on the issue.  Much of McCain-Feingold falls heavily on parties, and the restrictions on associations between and among parties, particularly in joint fundraising, is extensive.  The Court was not troubled.  It settled on a standard of review less exacting than "strict scrutiny" and then swept aside the plaintiffs’ objections.

     This was a soft money case, some might object:  the Court was sustaining Congressional determination to keep state parties and others from becoming the channels for illicit soft money.  Apart from this objection suffering from the sin of vast oversimplification, the point remains that associational rights issues have left little mark in recent campaign finance analysis.

     In the meantime, the law’s associational impact now cuts more deeply than ever, largely as a result of the restrictions on "coordination."  If you coordinate your speech or efforts with a candidate or a party, then you may be underwriting the election-related activities of another, and the consequence, a severe one, is that the "coordination" becomes a contribution subject to prohibitions and restrictions.  And the contribution limitations, the Buckley case teaches, are subject to a relaxed standard of scrutiny.

     One reason for the Court’s slighting of associational rights is that it seems unable to even conceive of the dimension of associational activity that presents the urgent constitutional question.  The right of association crops up in two contexts most typically, and it does not come up even that often.  But the most relevant context for our purposes—one concerned with what is called "expressive association"—may help shed light on what is missing in the Court’s conceptual apparatus.

     We see this right of expressive association in cases like Boy Scouts of America v. Dale, involving the exclusion of openly gay Scout leadership, or like Roberts v. United States Jaycees, where the Court confronted group discrimination practiced against women.  What was before the Court in these cases is membership or association "forced" upon a group:  the coerced affiliation, the insiders claimed, "affects in a significant way the group’s ability to advocate public or private viewpoints."  The group alleges that it would be unable to present itself—to express itself—as it wishes, if it is compelled to associate with others in a manner that conflicts with or undermines its expressive self-presentation.

     Campaign finance cases, however, are about a different form of associational commitment—reaching beyond one group’s membership or adherents to others, by fusing its initiatives with those others, in order to achieve shared purposes through coalition-building.  It is association across defined group limits, not association turned inward and maintained in a supposedly unadulterated form for self-expression.  It is political action we are speaking about here, whether it is action to influence voters or legislators or public opinion.  This is the missing dimension in the abysmal condition of campaign finance jurisprudence.

     But why is this missing, why is this beat being skipped?  This is a complex question, to which I will not pretend to have the answer, but I would like to suggest the following about at least one source of the decrepit state of associational rights doctrine.

     In campaign finance, progressive thinking commonly holds that the danger to the public interest lies in interests, and the more the interests combine, the greater the danger they present.  Interests are identified, as "faction" always has been, with corruption, which it is the purpose of the campaign finance laws to limit.  Interests are held in check, so that the larger public interest may emerge, whole. 

     Associations, and the manner of their interaction, are seen to introduce entropic forces into the political order:  they are disruptive, straining the ties that bind.  They come together to aggregate resources:  hence there are more resources to expend, and more to worry about in that direction as well.  And they are putting their bet on organization, on concerted persuasive activities, on the efficiencies of group enterprise; and this is often compared unfavorably to the individual speech and deliberation through which, reasoning together, we might arrive at a vision of a common interest.

     I am all for deliberative democracy.  The opposite has little to commend it.  Progressive political action depends, too, on finding and building strengths in numbers, in raising any one voice by amplifying it with the voices of others. Alliances must be fashioned and coalitions built.  This is work done on the streets or the phones or the on web, wherever support can be recruited and energies toward a common goal can be mobilized.   This comes about not only through the protection of "free speech," important as it is:  the right of association, broadly construed and vigorously defended, captures an aspect of this political work that has been seriously neglected. 

Concluding….

     The conclusion here is that when campaign finance enforcement is questioned, it is important that the nature of the complaint be specified.  It is saying too much to claim that the law is not being enforced:  it is in fact being enforced, most of the time.  We need to ask with care how much more is realistic to ask.  Then we might consider closely whether, as in shrinking space for association, the enforcement that constitutional doctrine permits is the kind that we, as progressives, should want.