The opposition to campaign finance reform is not monolithic. Some comes from conservatives who believe it’s really a cover to push some sort of substantive Democratic/liberal agenda. Others are fine with reducing First Amendment speech and representative democracy into mere commodities to be bought and sold, and approve of the idea that money can and should buy political power. And some of those people are Big Money Democrats who believe the party would be better off with fewer campaign finance restrictions and less disclosure so they could compete for wealthy special interest money to elect candidates who support socially progressive ideas, at least as long as those ideas don’t conflict with their business interests.
This line of thought was reflected in Bob Bauer’s July 14, 2014 post on his More Soft Money Hard Law blog, The Coordination of Issue Advocacy Part II: Progressive Conflicts and a Hypothetical, where he challenges the wisdom of coordination rules in the context of the Wisconsin investigation into allegations that Governor Walker and his aides coordinated activities opposing the campaign to recall him with outside groups. These activities included ads which did not directly advocate his election.
Using the ongoing Walker investigation as a jumping off point, Bauer asks progressives to think about whether coordination rules that focus on the interaction between candidates and third party are harming progressive causes. He begins by questioning what those rules would have meant for the anti-war and gay rights movement in the 1970’s. Moving into this century, he presents a hypothetical involving an organization that “will argue for the need to protect women’s control of their health care from the interference of politicians and employers.” In his scenario, the organization wants to “review both the content and schedule for the ads” with the candidate and coordinate the roll out of the campaign with the candidate’s schedule. He then suggests applying the same hypothetical to “civil liberties or the minimum wage or health care and suggests progressives ask themselves “if this should be illegal, or is it good politics that deserves protection—even encouragement.”
There is no question that Bauer is one of the most experienced and knowledgeable campaign finance lawyers in the country. He served as White House counsel during President Obama’s first term, as well counsel to his presidential campaigns and the campaigns of numerous other Democratic candidates, as well as Democratic Party committees. He is also a prolific blogger who often frames his opposition to campaign finance regulation as questions regarding the wisdom of the law.
Here, he uses this pseudo-Socratic approach to begin with a false premise upon which he constructs false choices for a non-existent world.
The false premise with which he begins is that “[t]he theory behind keeping candidates from coordinating with ‘outside group’ issue advocacy is that the candidates have to account for the benefits they receive from associating with their allies.” Not true. Coordination rules are based on the Supreme Court’s theory, first espoused in Buckley v. Valeo (1976), and most recently reaffirmed by the Court inCitizens United (2010) and McCutcheon (2014), that money spent for the purpose of influencing an election by a third party “wholly independently” of a candidate is not subject to contribution limits or source prohibitions because the complete independence robs the spending of its value to the candidate and eliminates the potential for corruption. In contrast, according to the Supreme Court, money spent in coordination with the candidate to support his or her election does present the danger of real or apparent corruption, just as a monetary contribution given directly to a candidate presents a threat of corruption. (It may be a distinction untethered from political reality, but it is the Supreme Court’s distinction and the entire basis for allowing corporate and union unlimited independent expenditures in elections and the creation of Super PACs.) Coordination is not about a candidate associating with his or her allies. It is about the potential for corruption when third parties agree in consultation with a candidate to spend unlimited and often undisclosed money, including from corporations and unions, in a way the candidate thinks will be most helpful.
Bob Bauer also seems to suggest that coordination rules stop issues groups and political movements from working with elected officials on policies of common interest. Also not true. His hypotheticals are all about groups working directly with a candidate’s campaign on public advertising while a candidate is running for election. Here he strikes at the very heart of the coordination rules, since it is hard to imagine anything more beneficial to a candidate, and more likely to give rise to the type of corruption the Supreme Court continues to believe justifies campaign finance restrictions. This is a far cry from just educating candidates about an issue or working with elected leaders to promote your cause.
Moreover, while Bauer does an excellent job of giving a shout out to progressive causes, his hypotheticals assume a world where money is not a factor and we all have equal financial ability to mount “issue campaigns” coordinated with candidates, leaving the candidates free to make the best choices about which issues with which to work. But, that is not the world in which we live.
To use one of Bauer’s examples, imagine two groups, the first wants the candidate to support raising the minimum wage, while the second group opposes such legislative action. Both groups offer to work closely with the candidate’s campaign to produce “issue ads,” including the content and timing of the ads and where they will be shown, to best help his or her campaign.
In a perfect world, the candidate could decide whether raising the minimum wage was in the best interest of the country and then work with the appropriate group, since they offer equal benefits. But let’s get real. Sure, both poor and rich organizations can approach a candidate to coordinate their issue campaigns. But who is the candidate going to coordinate with when it is only the wealthy organization that can afford to hire the professional staff to create the ads, develop a strategy and purchase the airtime? What if the group that supports the raising of the minimum wage can only promise to spend $25,000 on a coordinated ad campaign, while the other group promises to spend $10 million on coordinated issue ads if the candidate opposes the raising the minimum wage?
Bob Bauer and I are old enough to remember (and have participated in) the anti-Vietnam war movement. As far as I remember (and I take to heart the caution that anyone who says they remember the sixties wasn’t there), the problem was not that the anti-war movement was well-funded but couldn’t coordinate its spending with candidates. The problem was that the money was on the side of those supporting the war and they were spending it to elect candidates. People took to the streets because they knew they could not win at the game of Money Politics.
As the Supreme Court has consistently recognized, coordinated expenditures are the functional equivalent of direct contributions to a candidate. Without strong coordination rules, wealthy individuals and large corporations will have a clear path to provide a candidate with the unlimited direct financial support that will ensure the same future responsiveness that only large contributions that are now illegal could previously purchase. In that world, whether you are a progressive who believes in raising the minimum wage or a small government conservative who is opposed to crony capitalism and government policies that favor large corporations at the expense of the taxpayer, you are unlikely to persuade a candidate to coordinate with your organization unless you have the deep pockets and willingness to outspend those who oppose the issue for which you are fighting.
That is why more and more progressive groups who once shared Bob Bauer’s belief that they could outspend their political opponents have begun to support campaign finance reform. It’s also why it makes sense for conservative groups that are truly grassroots-based to break with the party orthodoxy and begin to support the earnest reform of our campaign finance system.
Bob Bauer’s often provocative analysis demonstrates that support for campaign finance reform is not based on whether you are a Democrat or Republican. Rather, it is based on whether you believe that the level of an individual’s ability to be heard in elections, and influence over their elected representatives is best determined by their wealth and whether that is a feature of a strong democracy or a problem to be addressed.