Supreme Court nominee Neil Gorsuch has scattered few clues about his campaign finance jurisprudence. Commentators have had to make do with his concurrence in Riddle v. Hickenlooper, 742 F. 3d 922 (2014), a case involving a concededly defective Colorado law that discriminated against minor or independent candidates in the structure of contribution limits. Gorsuch’s concurrence could be read to question the more permissive standard of review that the Supreme Court in Buckley established for the defense of contribution limits. The Court allowed for scrutiny of contribution restrictions a step or more down from the strictest review: not attention to whether the government had a “compelling” interest and had “narrowly tailored” the means to achieve it, but a question of the state’s “sufficiently important interest” and the use of means that are “closely drawn.”
Gorsuch wrote in Hickenlooper that the two standards were “pretty close but not quite the same thing.” Id. at 931. To some observers, they seem not that close at all. They fear that any shift to a more rigorous standard would be the next and perhaps decisive blow to meaningful campaign finance regulation. The stakes, they believe, are high. But how high? And are there other questions to be raised about the political assumptions, perhaps also effects, of the leeway provided for the imposition of tight limits on contributions?
In an article just published in Atlantic, Jonathan Rauch argues that modern political reform has contributed to a disastrously weakened capacity for responsible, functional self-governance.The damage has been done to critically needed intermediary institutions, such as parties, whose effectiveness depend on allowances and practices now associated with old-style politics: less transparency in the conduct of government business, more resources for parties and their leadership, more of a role for party leaders and elites in screening candidates, and more flexibility for congressional leaders to utilize tools like "pork" to induce cohesion in the legislative ranks. The result of the change has been what he calls “chaos syndrome.”
Rauch does not claim that the reforms all without merit, or that we can or should leapfrog back to the end of the 19th or early 20th century. But, he says, by scaling back or adjusting certain of these reforms, something can be done to restore functionality to our politics—to contain the “chaos.”
Writing perceptively about this problem of reform’s “unintended consequences, ” Rauch recognizes that there are “other, larger trends” in the political culture responsible for this syndrome. For example, he cites the “politphobes” among voters who are convinced that there are clear remedies, beyond reasonable disagreement, to the nation’s ills, and that only the politicians and their political shenanigans and dark conspiracies have gotten in the way. He faults the reforms, for exacerbating this and other problems, just as he appreciates that revisions in the 1970’s reform model won’t somehow alone bring order out of the chaos.
It would be mistake, and maybe a trap, if Rauch’s analysis were taken to call only for re-evaluation of reforms already enacted. The argument taken primarily in that direction is sure to activate the same tired debates, feeding into the standard fear that politicians, "rolling back" reforms, are taking care of themselves at everyone else’s expense. No less important is bringing Rauch’s analysis into a discussion of the proposal of new reforms.
One question recently raised here is whether in thinking about campaign finance reform, New York Times editorialists and their followers would place a limit on how much would be spent, and how negatively, to keep Donald Trump out of the White House. The Times believes him to dangerous to the country, entirely unfit for office, at the same time that it counsels that the process by which he or any candidate is evaluated must include restrictions on expenditures to urge defeat (or election). It is fair to note these tensions, testing reform principles and intuitions in the concrete conditions of electoral competition where there are found real candidacies, meaningful choices, and serious consequences.
A similar test might be conducted in the case of limits directed toward the timing of certain speech. Under campaign finance jurisprudence, the First Amendment recognizes a difference between fully protected “issues” speech and the speech with the effect or purpose of influencing elections that may be regulated to prevent corruption or its appearance. The reforms of recent years have whittled away at the distinction, regulating electioneering communications on policy issues that may contain a reference to a candidate and so, being close to an election, could sway voters. The usual formula ropes this speech into regulatory control within thirty or sixty days of an election.
The reform theory has been that the purpose of such communications is likely to influence an election, and if not the purpose, then its effect, and records have been assembled to establish that the spenders have in mind to make a mockery of the law and that stricter enforcement is therefore essential. In the thick of the election, it is argued, the candidate/issue line distinction does not hold, and the aims of campaign finance laws, both limitations and disclosure, should control. The Supreme Court has trimmed back this theory, and a now complex jurisprudence allows for election season-specific regulation of communications “susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate.” Wisconsin Right to Life v. Federal Election Commission, 551 U.S. 449, 469-470 (2007).
In the current election, the Trump candidacy will test acceptance of the basic reform tenet about the election season regulation of issues speech. With the debate about Trump has come a debate about the package of stances that has come to be known as “Trumpism.” A number of his supporters have defined it as “ secure borders, economic nationalism, interests-based foreign policy, and above all judging every government action through a single lens: does this help or harm Americans?” It is recognized that the program cannot be argued, for or against, without reference to Trump: “For now, the principal vehicle of Trumpism is Trump.” And Trump critics, ones as severe as Paul Krugman, recognize the “Trumpism” behind Trump.
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.
The Louisiana Republican Party has enlisted Jim Bopp to mount a challenge to campaign finance restrictions on state political parties and so it is widely assumed that this is a Trojan Horse lawsuit with much wider significance for the survival of McCain-Feingold. And of course if the three-judge court, then eventually the Supreme Court, decide the case a certain way, it could well help doom the 1970’s reforms--if not immediately, then eventually. Rick Hasen, among others, has embraced the doomsday scenario, and the reform community has communicated to the three-judge court just this view of the stakes.
All of this may be true but this case and likely others to follow point to the costs of the bitter, stalemated discussion of campaign finance policy. Louisiana and its lawyers have a reasonable case against the regulatory burdens on state parties: they stress that the dissatisfaction with aspects of these rules is bipartisan. Thoughtful observers have concluded, as Brookings scholars recently did, that reforms are required.
But on this, as on other campaign finance issues, there is little likelihood of progress: no serious legislative engagement and, outside the Congress, a sharply divided political debate that mainly sorts out into hardline “reform” and “anti-reform” camps. The fight has largely moved to the courts, and from the reformers’ perspective, and with some uncertainty after Justice Scalia’s passing, this serves to put at risk the entire Buckley framework. But if the outcome there is muddled or inconclusive, what will continue is the slow, steady rot of a regulatory regime characterized by ambiguity, complexity and evasion. Neither of the alternatives is desirable.