A “Third Approach” to Reform?

December 9, 2014
posted by Bob Bauer

To Michael Malbin’s credit, he is taking seriously the political parties’ complaint about the terms under which they must compete for resources and influence with “outside” or independent groups. He accepts that a “rebalancing” is in order, and he proposes a compromise: more room for parties to coordinate their spending with candidates, in return for tighter enforcement of coordination rules against independent expenditure groups. He calls this a “third approach” to reform that which rejects both full de-regulation of party spending and any frontal challenge to the constitutional protections for independent spending.

To travel the middle of the road, Malbin proposes that parties coordinate freely with candidates only the spending of funds raised in amounts not to exceed $1,000 per donor. He has two objectives in mind, which are to enforce the contribution limits while reinforcing incentives for small donor fundraising. Independent groups would have to contend with stiffer coordination restrictions, and Malbin suggests that new rules be focused on single-candidate Super PACs.

This seems reasonable on its own terms, but it borrows from a familiar model of reform that rests on certain assumptions.

One such assumption is that party (and other political) behaviors can be engineered to better results by a tweak here and there. In this case, incentives would be structured to drive parties to more small donor fundraising. To this offer of assistance, parties might answer that they are best suited to explore and determine the means of generating resources: they are fully motivated to do so, and their search extends, as always, to the “small donors.” Nothing in the experience with reform in recent years suggests that incentives built into regulation make that much difference in steering parties (or other actors) to desirable political goals. And more often the law’s incentives have not been the ones intended.

A second assumption is that parties operate as envisioned by the Supreme Court in McConnell, as ready “conduits” for candidates laundering funds from donors in violation of the contribution limits. The Malbin proposal is somewhat divided in this respect: it calls for strengthening parties in their traditional role, as autonomous institutions, but also pictures them as chronically vulnerable to candidate control or manipulation.

This is an old fight, and it is not clear that it is getting us anywhere. Parties do draw contributions from contributors motivated to help particular candidates, and candidates do press the parties for any advantage they can get from helping to raise this money. The question is whether the parties should be left to negotiate the tensions between institutional interests and candidate demand or require regulatory intervention to police contribution limits. There is a sound case for adjusting the regulatory approach to allow for more reliance on the operation of ordinary politics, for letting the parties and candidates work things out. It is far from clear how the large the consequences would be for the contribution limits, and there remains regulation, specifically the earmarking rules, to address the most direct challenges to enforcement.

And, finally, the proposal provides that relief for the parties would be contingent on companion measures to curb independent spending. This is a critical part of the “rebalancing,” and the reform model within which Michael Malbin is working presumes that through adjustment of the rules—adding a regulation here, lightening another there—the “system” can be made to work better. But the questions here are separate. One has to do with a choice of regulation for party spending, among a number of regulatory alternatives, and the other is fundamentally concerned with working around constitutional protections for independent spending, when the alternatives are exceedingly limited. To tie the one issue to the other complicates both the discussion and the chances of reaching a workable agreement.

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