The New Donors

April 15, 2015
posted by Bob Bauer

The doctrinal architecture of campaign finance is straining under the pressure of adapting to new realities. Most of the hard questioning has been expended on the faded distinction between contributions and expenditures and its relationship to free speech values.  It is all thoroughly familiar by now: the contribution which is “speech by proxy”, entitled to less protection, and the independent expenditure which is more pure speech and, while subject to disclosure requirements, cannot be put under dollar limits.  How the money is spent is the controlling inquiry: who spends it is less important, and Citizens United pushed this point harder in holding that free speech rights don’t depend on the identity of the speaker.

The hole in this analysis is the absence of attention to the activity of politics—the “doing of politics.”   People who come together are doing more than speaking: they are doing politics, acting in concert to effect political goals.  
This is a dimension of First Amendment jurisprudence that is normally covered in discussion of the freedom of association.  But attention to association has been fleeting, largely disappearing from Supreme Court jurisprudence, and when it reappears, it often collapses back into the free speech-centered jurisprudence that has reigned for decades now. The associational right is treated as expressive association, just the association that enables participants in group efforts to amplify their individual “views.”

An account of doing politics may seem in the first instance to serve only a broadened perspective of First Amendment protections.  On this view, it is another weight placed on the scales against regulation. But it is also a way to think about what is really happening in the conduct of politics, and to relate it to the goals and limits—both the goals and limits—of regulation. And it seems especially useful now when a new Super PAC donor, one refusing to play “second fiddle,” lays claim to a commanding position in electoral politics.

This New Donor is not merely expressing views. He is looking to build with his personal treasury an organization that will shift the strategic landscape—the sphere within which the campaign as an organizational activity is conducted.  His goal is not alone to amplify the candidate’s views, nor to carry out functions favored by the candidate on a timetable and in others respects as that candidate determines.  He has consulting support of his own and a project of drawing on that advice and his considerable resources in crafting a campaign plan that supplements, influences, and occasionally redirects what the candidate (or the candidate’s party) may choose to do.

Unlike the experienced political professionals who organize PACs sympathetic to and aligned with particular political party interests, the New Donor is not committed to party or enhancing its brand. She is working to elect a candidate or candidates without the complications and inefficiencies that parties must contend with in managing multiple institutional objectives, one of which is to adopt a position of studied (if not always entirely genuine) impartiality when its candidates are competing for a nomination. This New Donor is ready to disregard whatever consensus about strategy that a party elite might arrive at.

So the New Donor is more than a Donor, though she is also that; and she is more than ally of the candidate, while still certainly a supporter; and the committee she establishes, the Super PAC (or the campaign-focused issue advocacy organization), does not serve primarily to aggregate the “speech” resources of an association of speakers or to advance partisan party interests. Her committee is a party-type organization that is not a party but with a similar mission, which is to effect through all the means available to the sophisticated political actor a preferred electoral outcome.

What holds this operation together, of course, is the New Donor’s control of exceptional resources–extensive personal or familial assets, to which might be added those of a handful of close associates.  This is inevitably being discussed with the Buckley vocabulary of “corruption,” the consequences of which, it is believed, will be experienced  in a government in which the benefactors appears to collect their winnings. The analysis falls short on two counts: the nature of the activity, which is not simple terms “expressive”, and its connection to quid pro quo sale of office. Instead this New Donor activity is a new mode of doing politics, and should this prove to be an enduring trend, the effects will be seen in a major recasting of electoral competition.

It is with this perspective that questions of political equality will now have to be evaluated.  The implications for the direction and limits of regulatory policy are not clear. But what should be plain is that the discussion will be divorced from reality and doomed to be fruitless if it is confined within the conceptual framework and vocabulary bequeathed by Buckley and couched only in the language of speech values and the risks of corruption or its appearance.

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