Campaign finance regulation feeds on a variety of abstractions, "corruption" chief among them, but also "circumvention" and, now, "accountability."  In the first two examples, the goal is regulation, but accountability can support the case both for and against particular restrictions. This week, a bill that proposes to advance accountability will come before the Senate Rules Committee.  It is an exercise in deregulation—it would eliminate the limits on party coordinated spending—but it employs de-regulation as a means to a regulatory end: accountability.  

     Parties now spend "independently" of their candidates and they must do so to gain the benefit of relief from spending limits.  This is, of course, the most peculiar of conceptions, and it is now raising hackles in practice.  The Supreme Court established that such independence was available as a matter of constitutional law:  if the party did not coordinate spending with its candidates, its independence was as good as any other, and Court doctrine has held that truly independent spending threatens none of the quid pro quo corruption which justifies the imposition of spending or contribution limits.

      The parties naturally turned to this independent spending, which was a turn away from its candidates, and as the history of McCain-Feingold shows, nothing distresses candidates more than the loss of control of their own campaigns.  In party "independence," they found themselves even more aggrieved by this loss of control:  this was their party after all, for which many of them supplied lavish fundraising support.  And yet the party could run ads with significant impact on their campaign without a word to them:  and it would have to do so if it wished to spend without limit on their behalf.

      Enter the demand for "accountability."  Parties spending independently could run irresponsible and "negative" ads, presumably for the benefit of their candidates, but the candidates, or so they said, could do nothing about them and, being powerless in the matter, they could not be fairly expected to accept responsibility for this wretched form of political speech.  Any communication with the party, for the purpose of protesting and demanding the withdrawal of the ad, would compromise the required party independence, running afoul of the law.  Candidates could escape accountability, and so, too, could the party, with the result that vile negative advertising was loosed upon the land.

     Out of this set of conditions has come the call, joining Republicans and some reformers, for the elimination of the party spending limits.  It is assumed that if parties can spend without limit in full coordination with its candidates, all temptation to act independently will be lost.  Once the parties and the candidates are freely working and communicating together, the necessary accountability will be preserved.  Ads may continue to be "negative"—we can be sure that they will—but the candidates will have to answer for them.  Having regained control of their ads, the candidates will also have accepted accountability.

     This line of argument, as one in favor of "reform," is not a straight line.  Set aside for a moment the question of public policy—whether parties should be able to spend freely on behalf of their candidates.  What is interesting here is that this reform has been packaged as de-regulation that promotes a regulatory objective:  cleaner campaigns with, at best, less negative advertising and, at worst, more accountability by candidates for the content of their parties’ ads.  Spending restrictions are not to be abandoned because—or primarily because—they would promote speech and association, but because they serve a larger public policy purpose.  As a measure to compel an accounting and incentives in the service of cleaner, healthier speech, it is much like the stand-by-your ad requirement ("I am Jones and I approved this message").  Unlike that requirement—which is, well, a requirement—the measure now before the Rules Committee is a free-market approach to the policy objective. 

      Buried beneath this rationale are other reasons, on various sides, for the support that the bill is attracting.  Candidates want control over their campaigns, which is also the reason why the candidates who held office in 2002 voted for the "electioneering communication" prohibitions that eliminated certain pre-election broadcast advertising.  The GOP can argue for this bill and remain faithful to self-interest:  it views its long-term competitive advantage to lie in unregulated parties, not in the proliferation and growing influence of outside groups that has been encouraged, in part, by statutes like McCain Feingold. 

     And reform organizations and advocates are willing to strike a deal on this special accommodation of parties for a number of reasons, theoretical and tactical.  Among the tactical considerations is the possibility that parties and candidates might find party deregulation to be especially attractive in combination with restrictions on outside groups and independent committees such as independent 527s.   Reform argument has appealed before to candidates' appetite for regulatory "control" but usually by proposing regulation.  Here it can open with a de-regulatory proposal but add the regulatory reinforcements, fulfilling the same objectives, later. 

      A number of knowledgeable witnesses will testify on the proposal, including my colleague at Perkins Coie, Marc Elias, who will share a panel with John Samples.  Another panel will feature prominent advocates for reform, this time appearing on behalf of a de-regulatory measure, including Tom Mann and Michael Malbin.  The Center for Competitive Politics supplies on its site useful background: the text of the bill, and a paper by Steve Hoersting making the case for this proposal.  

Bob Bauer