Rick Pildes asks whether in this time of "existential politics," when contestants for political power perceive the very "identity of the country… to be at stake," we might expect the steady degradation and eventual collapse of institutional norms. He is moved to this reflection by Judge Laurence Silberman's recent column on Jim Comey’s and Justice Ginsburg’s interventions in the 2016 political campaign. Judge Silberman charges each with disregard of norms, with having “bent with the political winds” in a storm. Silberman does not explicitly develop the theme of an existential politics, but Pildes rightly sees something like it playing in the background.
One other consequence of this brand of politics is the collapse of any agreement about the rules of political competition. For the existential warrior, these rules either cost too much--they just get in the way--or they require tighter alignment with self-interest. If, as Michael Gerson mockingly describes the mind-set, the nation is now in the midst of a “fourth turning, or maybe the fifth progression, or the third cataclysm,” or if the government threatens a turn toward fascism, there will be little patience in this fight for ground-rules that complicate the path to victory or successful resistance. As noted here, the progressive opposition may include campaign finance limits among its reform commitments, but how far can this go, if resources are thought essential to the project of stopping Trump?
The rejection of rules tends to be rationalized, and rationalization has been spreading. Last to go has been the acceptance for the need for disclosure; but it may be on the way out, as Republican and conservative critics argue that transparency requirements are devices that the administrative state has established for the surveillance of the political opposition. In this attack on disclosure, the President’s refusal to release his returns, while a rejection of norms and not of law, has put a fine point on the precarious position of transparency in the existential politics of the day.
FEC Commissioner Ravel came to town with every intention to make change and left in a state of disillusionment. She aspired to build fences and ran into a wall: The Republicans had no interest in cooperating in a progressive reform program, not even bringing “dark money” into the light. The Commissioner then took her case public, before the sympathetic audiences in the media, but this was a dead end. Republican Commissioners are not moved by op-eds in the New York Times. By the time of her resignation yesterday, Commissioner Ravel had made her name by stressing the pointlessness of expecting anything from her agency. She may have made little headway in advancing the cause of transparency in campaign finance, but she was very clear about her own views.
Her letter of resignation is a parting expression of her commitment to strengthened enforcement of campaign finance laws. It is also a last testament to the futility of her quest. She refers to various statements the President has made about the broken campaign finance system and urges him to prioritize reform among his domestic initiatives. Of course, Mitch McConnell runs the Senate and there is no chance of his agreement to the program she advocates of ending “dark money,” reversing Citizens United, public finance and a reinvigorated FEC.
The president to which she made this last appeal may or may not have meant what he said about campaign finance. He was a billionaire candidate who could spend freely: his “money in politics” was not restricted. But he did not win by swamping his foes with superior resources. Candidates with plenty of campaign money, like Jeb Bush, failed early. On the subject of election law, this president seems far more motivated by his belief in “voter fraud.”
The Independence Institute case, a challenge to the regulation of issues speech, has attracted a sizeable roster of amici in support of Supreme Court review. So far the line-up is largely conservative and libertarian, and yet, notably, the arguments are ones that in the Age of Polarization might also ---and should-- find an audience among progressives. The issue is the constitutional protection available for anonymous issues speech that a speaker, or an association of speakers, may engage in to limit the risk of reprisal or harassment.
For progressives as well as others, there are reasons to take this issue seriously: and some, pointing to Donald Trump, say he is the reason. Jim Rutenberg, reporting on Bill Maher’s belief that free speech may be under siege, writes this:
It’s amazing how much anxiety Mr. Trump’s imminent inauguration is stirring in the free-speech business — but perhaps not surprising given his open hostility toward the press, his willingness to use his platform against any who cross him and his seemingly proud dismissal of the government and political norms that precede him. No one knows whether a year from now, we’ll see today’s fears as overblown, underblown, or on point.These observations explain in part the general reluctance of progressives to take up the cause more formally. For them, the “anxiety…in the free speech business” has been triggered by the rise of Trump. But they cannot know what the future holds: maybe they will find their fears to be “overblown.” The problem may appear to them to be highly localized, to last only as long as the new president’s term in office. The New Normal could prove to be ephemeral.
If the world is returned to the Old Normal, progressives may then resume their standard advocacy of expansive disclosure of those funding, out of their own pocket or that of others, issue advocacy. They are motivated, properly, by the belief that political inequality should not be exacerbated by income inequality. They come to the issue from a long history of concern with issue speech being “sham,” much of it electoral speech in disguise.
But these commitments need not mean that progressives must surrender all support for anonymous issues speech, or make an exception only to address the challenge from a particular adversary. As the political scientist Bruce Cain wrote well before the 2016 election: “The argument for preserving the privacy of individual citizen identity for those who participate in constitutionally approved ways is strong if the goal is full participation and citizen autonomy.” Democracy, More or Less 54 (2015). Cain has suggested “semi-disclosure” to protect against the identification of individual contributors while making public other information in “census-like categories” about the sources of a candidate or political committee’s support. There has also been openness in some progressive circles to protecting the “small donor” by raising the threshold for the public disclosure of personal identifying information.
There is now bipartisan interest in a change in the lobbying rules to reach the “back room” or “shadow” lobbyist. Most immediately, the proposal has been to have the new Administration expand the ban by Executive Order on federal government employment of lobbyists to include these individuals believed to be lobbyists in all but the name. This would close a much-derided “loophole,” one that has been especially infuriating to those who do register under the lobbying disclosure law while watching others, who seem to do pretty much what they do, escape on an apparent technicality. An amendment to the Executive Order to capture “shadow lobbying” could be followed by a corresponding change in the lobbying laws to greatly enlarge the numbers subject to mandatory disclosure requirements.
The appeal to close a loophole packs its usual punch. It answers the frustration over apparent inconsistency (the demand that those doing similar things be treated alike), and the extension of reporting requirements to “shadow lobbying” would help create a more complete picture of the total dollars spent on influencing public policy. But, as always, there are complications and competing considerations that should affect how a reform like this is designed--with what limiting principles--and how it is administered.
In 1968, the Nixon presidential campaign successfully persuaded the South Vietnamese government to scuttle peace talks with the North. The goal was to end any possibility of an election-eve accord that would boost the prospects of the Democratic presidential nominee, Hubert Humphrey. Candidate Nixon and his agents assured the South Vietnamese, who took the deal, that a Nixon presidency would better protect their interests. This was a glaring case of foreign interference with elections. The election turned out to be close and the intervention was very plausibly a factor in the outcome. See, e.g., Tim Weiner, One Man Against the World: The Tragedy of Richard Nixon 19-26 (2015).
This is the kind of “interference” in an election that Congress is preparing to investigate. It remains to be seen whether the inquiry will eventually become more far-ranging-- whether it will also examine other forms of foreign influence over the electoral and policy processes that are less brazen but still consequential.
For example, the Federal Election Commission recently could not agree on strengthened restrictions on campaign spending that serves foreign interests. Foreign nationals are prohibited generally from making contributions or expenditures in federal elections, but the rules are porous. Companies controlled by foreign nationals, including those directly or indirectly controlled by foreign governments, may establish PACs and fund campaigns with money contributed by their American executives. The law prohibits foreign nationals associated with the ownership or management of the company from directing or indirectly participating in these funding decisions. The enforcement challenge is obvious: how to capture this “participation,” which may include oral directives or suggestions that are not easily discovered. Beyond this, Americans in the employ of the wholly controlled USA subsidiary might guide their funding decisions by close reference to what they believe or know to be their foreign owners’ interests and preferences.