Magical Thinking About Reform

August 13, 2018

Like any good magic show, misdirection is at the heart of Robert Bauer’s and Samuel Issacharoff’s op-ed, Keep Shining the Light on ‘Dark Money’, published in Politico on April 12th.  Directing the audience’s attention to the need for greater transparency of “dark money,” they talk about the need for “[r]eformed reporting requirements carefully drawn to bring into public view this spending while also addressing concerns about donor privacy and harassment.”  Then, right before our eyes, their reform resulting in greater transparency wondrously becomes a proposal to transform the current $200 threshold for reporting the identity of individuals who make political contributions into a threshold of $2,700 and to require reporting only during a narrow window sometime between 30 to 120 days before an election.  Since the maximum an individual can contribute to a federal candidate is $2,700, this proposal would magically make vanish the identity of every individual who contributes directly to a federal candidate and turn those contributions into a heretofore unseen animal: a large dark money contribution made directly to a federal candidate.  At the same time, contributions from party committees, leadership PACs and corporate and union PACs would not have to be disclosed unless the contributions exceeded $2,700 and were made right before an election.

It would, indeed, be an impressive trick if one could make us believe that eliminating the reporting of the identities of individuals who make large contributions directly to candidates was a campaign finance reform that results in greater transparency.  But it is an illusion based on misdirection and the audience’s willingness to suspend disbelief, which, like all bad magic, falls apart on close inspection.

First, Bauer and Issacharoff try to set us up and gain our confidence by suggesting they are about to show us a real reform proposal that will shine a light on the dark money that is infecting our election and democracy.  Once we’re ready to hear about greater transparency, they do a quick switch and show us a proposal for eliminating the disclosure of the identity of all individuals who contribute to candidates — and they call it reform.   

For this illusion to work, they have to ask us to “retire the tired discourse of corruption and return to the core objective of giving voters access to relevant information,” which they define as providing voters “some useful information about the hundreds of millions in political spending.”  That’s right, not only do they ask us to dismiss concerns about corruption, but they redefine transparency to mean “some useful information.”  This is where the real misdirection takes place.  If corruption isn’t an issue, and the need for disclosure is limited, their illusion of reform may be easier for them to sell. 

However, like a magician’s coat with its secret pockets showing, the narrative with which they cloak their illusion doesn’t stand up to close inspection.  First, Bauer and Issacharoff have to hope their audience doesn’t notice that the Supreme Court has found comprehensive disclosure laws constitutional because they provide voters with necessary information and help deter corruption.  Instead, they ask us to believe that no one contributing only $2,700 to a candidate can expect to “buy” influence.  Even if that is true for presidential elections, it only tells us how little influence the vast majority of voters have since less than one third of one percent of the adult population contributed over $200 in federal elections in 2014.  Moreover, even a “paltry” $2,700 can still carry a lot of weight in a congressional race.

Beyond that, focusing on the alleged limited power of one $2,700 contribution requires us to ignore the potential for corrupt influence-buying through the bundling of $2,700 contributions to candidates.  A bundler responsible for raising over a quarter of a million dollars in individual contributions of $2,700 will certainly get noticed by the candidate, but the authors’ proposal would hide the identity of those contributors from the public (though not from the candidate, of course).  And since the Supreme Court, in McCutcheon v. FEC, struck down the aggregate limit on what an individual can give to all candidates, this new proposal would allow a wealthy individual to buy influence by spreading hundreds of thousands of dollars among a party’s candidates in $2,700 contributions, without the public knowing.  That would be an impressive and useful sleight of hand for those with access to that type of money.  The irony, of course, is that in striking down the aggregate limit, the Court relied, in part, on its belief that “disclosure of contributions minimizes the poten­tial for abuse of the campaign finance system.”  

Finally, the authors attempt to sell their illusion by suggesting that our disclosure laws are based on “the model of regulation we inherited from our grandparents’ concern over misbehavior in the 1972 presidential election.”  Initially, one should be suspicious of anyone who describes the Watergate scandal that resulted in a president resigning from office, and felony convictions for illegal contributions and other actions, as “misbehavior.”  But it fits with their suggestion that concern over large contributions corrupting our democracy is an ancient superstition foolishly held by our elders.

It’s a nice try, but you can’t create an illusion that relies on history unless you have a sense of time.  Mr. Bauer, Prof. Issacharoff and I are all about the same age.  I was in college when the Watergate money-in-politics scandal broke and in law school when Nixon resigned.  It was our generation, not our grandparents’ generation, who worried about the future of our democracy in the wake of Watergate.  Of course, if the abuses of Watergate were no longer of concern, it might very well be time for our generation to get over it, while acknowledging the post-Watergate reforms that included the current disclosure system.  But what about the documented record of the soft-money scandal in the late 1990’s that gave rise to the Bipartisan Campaign Reform Act of 2002?  Still too long ago?  Then, how about the indictment of Senator Menendez a couple of weeks ago, which included allegations of corruption involving campaign contributions?  After the magic show is over, the truth remains that there is no endgame in a democracy and each generation has to fight against corruption—and for a better-informed electorate—by building on past reforms, not tearing them down. 

Trying to turn a proposal to dramatically decrease the public’s access to information about who is financing our candidates into a reform that provides the public with more transparency was an ambitious gambit.  Ultimately, it doesn’t work because it requires us to suspend our disbelief to a degree that allows us to accept that transparency in the funding of election campaigns really just means providing the public with “some useful information,” and that concerns about corruption stemming from large campaign contributions is tired and outdated.  Unfortunately for Bauer and Issacharoff, the public is not that gullible.