The Reform Debate and the Parties

November 24, 2015
posted by Bob Bauer

The reform debate about the political parties is getting stuck on the question of whether, or to what extent, deregulation will improve the tone and ideological cast of national politics.  Some have argued that relieving parties of this or that restriction will alleviate pressures toward polarization and perhaps promote more centrist, moderate politics, in large measure by giving party leaders more influence.  There is some evidence for this, but it is naturally being disputed in a fight between the “purists” who resists deregulation and the “pragmatists” who favor it, and neither side to this debate is likely to score a decisive victory.  So if there can be no clear outcome, there is every reason to hope that not too much is riding on one.

When one day it has more or less run its course, the scholarship will likely show the party leaders with more money at their disposal can use it for better and for worse.  In some cases they will have the will and the means to check the extremes and expand their capacity to negotiate with opponents and move productive legislation. In others, this will not be the case.  Which of these alternative scenarios comes to pass in any state, in any time, will depend on a range of factors, including differences in states and regions and their politics, differences between the parties, the complexities of what is sometimes called the "issue environment,” and other factors.  As Lee Drutman has noted, “polarization is a function of many, many things,” and campaign finance may be only one such thing.

Before all these questions is another one: the difficulty of pinning down what one means by centrist or moderate politics, or even by a civil tone (notwithstanding some contemporary, notable examples of grotesque excess).  And another question: whether the moderate position is in all circumstances the most desirable one, if the policy described as “moderate” is just a product of splitting the difference.  The policies born of getting something done just for its own sake are not always distinguished by their effectiveness.

It is a better bet – – and a bet it is – that some of the time, empowered party leadership with stronger parties behind them can better perform their jobs. Right now they compete for their political influence with candidates who can build their own fundraising bases, and with outside groups (some of which, like Super PACs and (c) organizations, can be indistinguishable from the rest of a candidate’s, well, “support network.”).  To put parties at a disadvantage in this transformed political battlefield should require sound, well-supported policy justification.  Four years now, the justification has fallen entirely on the parties’ supposed role in fomenting corruption, the result of their (once) unique intimacy with candidates.

The Politics of Party Campaign Finance

October 23, 2015
posted by Bob Bauer

In a thoughtful article, Michael Kang of Emory has taken on the question of whether de-regulated political parties, taking in larger sums of money, can truly act as a bulwark against polarization—or only as yet another agent of the wealthy and their policy preferences.  He doubts donors would expect from parties any less responsiveness or gratitude. If the committed class of large donors is ideologically polarized, it is hard for him to see how party officials could resist its demands and retain the freedom to move party politics toward the center, closer to the ground for compromise.

This is one aspect of the normative case against party de-regulation he would put up against views presented by Rick Pildes, among others. (He has other concerns: for example, that "even if de-regulation of party campaign finance assigns the right balance of power among party actors, it neglects distributional equality concerns that were once a main focus of campaign finance policymaking."  Kang, Michael S., The Brave New World of Party Campaign Finance Law (2015). Cornell Law Review, Vol. 101, 2016; Emory Legal Studies Research Paper No. 15-365, at 57. Available at SSRN:

On this question of the direction into which parties would be pushed by the larger donors, Professor Kang gives a fairly straightforward picture of the donor and her motivation, and of the relationship of donor to party official.  The donors on this account will give only on conditions; the party officials, to get the money, will meet them.  The well-to-do donors do not have multiple motives: their demands, at least as the party official would interpret them, are of the “all or nothing” kind.  Is this a fully satisfactory account?

California: Presumptions about Super PACs

October 19, 2015
posted by Bob Bauer

California has approved rules to better keep Super PACs in line.  The Fair Political Practices Commission has its eyes on the federal and other states’ election law controversies, noting in a press release that it is acting “on the heels of a national trend toward increased coordination between candidates and Independent Expenditure (IR) committees—a trend the FPPC seeks to stop.”  It wishes to enforce the “highest degree of separation that is constitutionally permissible “ to counter “new strategies being used by outside groups.”  Memorandum from Jack Woodside and Hyla Wagner, to Chair Remke and Commissioners, “Independent Expenditures: Adoption of Amendments to Regulation 18225.7” (October 5, 2015), at 3, 4.

The FPPC regulations already use “rebuttable presumptions” to identify the factual circumstances in which coordination is present or where there is good reason to suspect it. It has also provided for some exceptions—“safe harbors”-- for certain contacts between candidates and the IE committee.  In the revised rules approved last week, the FPPC adds to the presumptions and to the safe harbors.

In judging the Robert’s Court record on campaign finance, Rick Hasen finds that progressives have little to cheer about, except that it might have been worse.  He looks into the reasons why the Court majority has moved more slowly toward deregulation than some might have predicted, and, as one might expect, his analysis is insightful. Election Law’s Path in the Roberts Court’s First Decade: A Sharp Right Turn But with Speed Bumps and Surprising Twists (August 4, 2015). UC Irvine School of Law Research Paper No. 2015-70. Available at SSRN: But he also assigns the Court heavy responsibility for the state of reform.  Hasen writes that, as a result of decisions like Citizens United and McCutcheon, the Roberts Court majority has “caused the existing campaign finance system to slowly implode,” launching reform into a” death spiral” and erecting “structural impediments” that prevent further reform.

To be sure, the Court’s rulings have contributed to the collapse of the ‘70s reforms, and there is no doubt that its jurisprudence complicates the pursuit of reform programs—that is, certain reform programs that follow the very Watergate-era model that has largely come apart.  But an account focused on the Court skips to the middle of the story; it leaves too much out.

Judging the Impact of Super PACs

September 25, 2015
posted by Bob Bauer

When Governor Scott Walker ended his Presidential candidacy, which happened after Rick Perry suspended his, commentators marveled that they could be done for and have well funded Super PAC still idling nearby.  It has been assumed that a conclusion was ready to be drawn—the more conclusive, the better.  The proposition that Super PACs rule the world has met with the objection that, no, they really don’t, not as we once thought.

Case in point: a piece in Salon, whose author, Sean Illing, wishes to show that, as the title states, Plutocrats still Reign, and that Walker’s withdrawal is no “defeat” for their Super PACs.  Very few commentators actually argued that Walker’s downfall signaled the end of plutocratic control.  If not that, then, what does the Walker’s withdrawal have to teach about the power and limits of Super PACs?