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.
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.
In a first step out on political reform (setting aside his executive order on lobbying), Donald Trump promised churches he would relieve them of the restrictions of the Johnson amendment on campaign activity. He didn't go into any detail.
But over time there have been different proposals for protecting religious institutions’ political speech. One of them is arguably sensible, while another, more aggressive reform of this nature is best avoided.
Attention began to turn more widely to this topic when in the Bush 43 years there was a suggestion that IRS was monitoring sermons and prepared to act against churches where it found campaign content in speech from the pulpit. A notorious case involved a sermon that was critical of the war in Iraq and included favorable comments about Democratic presidential nominee John Kerry and critical ones of his opponent George W. Bush. Nothing happened; the IRS backed off. But it remains the case that while the Service seems to have no particular appetite for regulatory action based on this kind of speech, it could, if it wished. And as the Bush/Kerry episode revealed, the issue can cut in either partisan or ideological direction.
That is one issue, and a reform has been advanced to address it. Its sole point would be to allow for speech in the ordinary course of communications by a religious institution. In 2013, an organization called the Commission on Accountability and Policy for Religious Organizations recommended that religious institutions be free to make communications "related to one or more political candidates or campaigns... made in the ordinary course of… regular and customary… exempt purposes," provided that the expenses incurred are de minimis. The exemption would apply specifically to sermons delivered "as part of a religious organization's regular and customary worship services."
Progressives thinking about the experience with reform have to grapple with its implications for mobilization, for effective political speech and action. As previously noted here, one traditional reform objective – – regulating issue advertising – – bears reconsideration For years, a priority has been to expand the rules to cover certain issue advertising within election seasons. The authors of McCain Feingold settled on what they took to be an objective test--define the election season as a month to two months before an election, and then capture within reporting requirements ads that simply” refer” to a candidate and are directed to his or her electorate. The ads affected would surely be “sham” ads, intended to influence the election, and disclosure of the financing of these “electioneering communications” would be appropriate, as it is in the case of clear-cut campaign advertising.
But is there such a thing as a genuine issue ad--one that is designed to discuss candidates in relation to issues but without, within the four corners of the ad, expressly calling for the candidate’s election or defeat? Or to put it in doctrinal terms, may the government reporting rules reach ads that do not involve either express electoral advocacy or its “functional equivalent”? The Court in McConnell v. Federal Election Commission took it more or less for granted that genuine issue ads would not be subject to mandatory disclosure. 540 U.S. 93, 206 n.88 (2003) (“ [W]e assume that the interests that justify the regulation of campaign speech might not apply to the regulation of genuine issue ads").
In Citizens United, the Supreme Court devoted a line to the seemingly contrary conclusion, suggesting in the most general terms that "the public has an interest in knowing who was speaking about a candidate shortly before an election." Citizens United v. Federal Election Commission, 558 U.S. 310, 369 (2010). But its discussion on this point was short, and it also appeared in a case that involved a communication--a movie--that was plainly intended to influence voter choice. It was decidedly not a case about “genuine” issues speech.
The Independence Institute, a 501(c)(3) organization, has pressed on this issue with a challenge to the application of the reporting rules to an ad lacking either express advocacy or its functional equivalent--i.e. a "genuine issue ad.” The ad named two Senators, one running for election, in appealing for support of pending legislation on criminal justice reform. A three-judge district court last month rejected the claim that the ad was constitutionally protected. The Court relied on the language of Citizens United. It appeared satisfied that even in the case of a genuine issue ad, a reference to a candidate was sufficient to trigger the electioneering communication disclosure requirements. Independence Institute v. Federal Election Commission, No. 14-cv-1500, 2016 WL656396 (D.D.C. November 3, 2016).