Campaign Finance in a Polarized Republic
The party spending case before the Court is about an old quarrel, but the stakes are very different now.
The Supreme Court heard argument yesterday about whether political parties may be constitutionally subject to a restriction on how they can spend money for their candidates. Republicans are challenging the constitutionality of the restriction, while Democrats would like to keep it in place. This is an old quarrel, dating back to the federal campaign finance reforms of the 1970s. Given vast changes since then in the ways political money is raised and spent, the issue before the Court may seem quaint, lacking in practical significance. But it might also warrant careful consideration in light of the challenge presented by a polarized politics and the advent of the aggressive weaponization of presidential power.
The Issue Before the Court
The precise issue before the Court is the operation under federal campaign finance law of the “coordination” rules. Their significance rests on a distinction the Supreme Court drew many years ago in Buckley v. Valeo between a “contribution” and “expenditure” for the purpose of influencing a federal election. In the interests of protecting against corruption or the “appearance” of corruption, the law limits the amount of any contribution to a candidate, party, or other political committee. Generally—and omitting here discussion of complex exceptions—an expenditure for the benefit of a candidate or political organization is also a contribution, and also subject to dollar limits, if it is “coordinated” with them—that is, it is made at their request or suggestion, or in consultation with them. Special rules apply to the coordination of “public communications,” such as paid advertising. However, an expenditure that is made independently of any involvement by the party or candidate is exempt from limits.
The theory behind this constitutionally grounded distinction between a contribution and an expenditure is that the independent spender is engaging in direct First Amendment-protected speech, while a contribution—whether made directly or on a coordinated basis—primarily funds the candidate’s speech and is entitled to less protection. The speech involved in making a contribution is thus treated as lesser order expression, referred to by the Court in 1981 as “speech by proxy.” The funder is speaking, but one step removed from the ultimate, publicly directed speech—the candidate’s—it is paying for.
Changes in the relevant constitutional doctrine, mostly wrought by the Roberts Court, have weakened the significance of the limits on contributions in the form of coordinated spending. Like other political organizations, parties can spend fully “independently” of their candidates and escape limits on the amount. So, improbable as it may seem, the law confers a special benefit on parties if they keep their distance, at least for these purposes, from their own candidates. Parties are also associated, albeit not formally, with partisan “Super PACs” dedicated to their causes that can pour money on an independent basis into federal ads and other activities on behalf of candidates. These party-connected political action committees (PACs), which some commentators have termed “shadow parties,” have one advantage parties themselves lack: Super PACs may also receive unlimited contributions to make these unlimited expenditures.
The law has also faltered in defining clearly what sort of candidate interactions with their parties fall under the heading of “coordination.” Candidates who face limits if they engage in closed-door “coordination” of their spending with parties or Super PACs have found other ways to send messages about what they need. Moreover, the coordination rules do not apply to all activities conducted by candidates in concert with Super PACs or parties. For example, the Federal Election Commission (FEC) has ruled that Super PACs can freely coordinate with candidates when conducting door-to-door voter canvassing. The case before the Court is more about the efficiency than the volume of party spending for its candidates. The coordination rules impede efficient, unlimited party spending but do not prevent it altogether. Of course, efficiency is not nothing. The Republicans want more, while the Democrats are prepared to live with less in order to keep the limits in place.
The Wider Significance of the Coordination Rules: Burdens on the “Right to Do Politics”
The question before the Court concerns only parties’ coordination with their candidates. But early disputes over the coordination rules involved a broader set of actors: parties and their candidates on the one hand, and their allied groups on the other—in the case of Democrats, labor unions, and the case of Republicans, faith-based organizations. The controversy centered on the effect of coordination rules on basic political relationships and coalition building. It might seem straightforward enough to apply the rules to a candidate’s or party’s request that a third party pay for an ad or other expense. The rules, however, dealt then, and deal now, with more difficult cases.
Suppose, for example, that the Democratic Party and a union interact on a continuing basis, as allies in a shared cause, and the union could then choose to pay independently for an ad on its own initiative. But what it creates and pays to air is informed, perhaps necessarily, by what it knows of the party from their ongoing relationship. The rules as they were revised and exist today do not turn on any formal collaboration or agreement between allies. Complicated regulations authorize the FEC to probe for information that may have passed more informally or surreptitiously between the spending entity and the beneficiary (party or candidate), enabling the spender to craft and pay for an effective ad without any direct closed-door consultation.
For this reason, when Congress in 2002 directed the FEC to craft new loophole-closing coordination rules, the American Federation of Labor and Congress of Industrial Organizations (AFL-CIO) challenged the statute. It argued that “[I]nsofar as the definition of ‘coordination’ depends on a speaker’s contacts with his elected representatives and candidates, it implicates the fundamental right of citizens ‘to make their wishes known to their representatives,’” and “insofar as the definition of ‘coordination’ depends on the contacts between a speaker and a political party, it implicates the equally fundamental right ‘to associate with the political party of one’s choice.’” Moreover, the unions argued, enforcement of coordination rules “‘inevitably . . . involves an intrusive and constitutionally troubling investigation of the inner workings of political [actors].’” [citations omitted].
The unions’ challenge failed. But the question it raised has persisted, and it is the central one of concern here: the impact of the “coordination” rules on “the right to do politics” when allies are “acting in concert . . . with others to achieve common political goals.” The complex question presented by the federal campaign finance law is when these rules are necessary to enforce contribution limits—and when they impose significant burdens on effective, concerted political activities.
Polarized Politics and Weaponized Political Power
The question before the Court in the party spending case bears importantly on the competitive strategies of the two political parties—what each believes at any given time serves its interest in most effectively supporting its candidates. Even in its battered and often-criticized state, campaign finance law is still on the books and, as a measure to enforce contribution limits, the coordination rules will continue to command attention.
However, developments in the politics of our time—polarization and weaponization—should become part of the debate over the limits on coordinated political spending, which is all too often being framed in 1970s terms. This debate has for a long time been about “loopholes” and “circumvention.” Congress tried to patch the statutory holes in the 2002 McCain-Feingold statute but few see that reform as having achieved its intended effect.
Yet, in a polarized politics, there are other, perhaps more compelling perspectives on the threats that campaign finance regulations like the coordination rules pose to the “right to do politics.” One such danger is the increasing risk that those in power will shape the rules to their advantage, or manipulate them to disadvantage or oppress their opposition. We have seen this in the fight over election rules. Trump has taken aggressive steps in this direction by executive order, attempting to take control of the Election Assistance Commission (EAC), which Congress structured to provide bipartisan support for election administration. His aim has been to require this agency to adopt election law rules to his liking—to introduce new rules on mail-in voting and the use of voting machinery. In another executive order, Trump has laid claim to the authority to direct the rule-making of all independent agencies (apart from the Board of Governors of the Federal Reserve System and the Federal Open Market Committee “in its conduct of monetary policy”), including ones like the FEC and the EAC designed to operate outside one-party control.
So far Trump has not moved to exert control over the regulatory functions of the FEC. But the federal campaign finance law is subject to criminal enforcement, and a Department of Justice directed by a president indifferent to norms can shove the FEC to one side and initiate criminal campaign finance investigations into the concerted political activity of the administration’s opposition. They can deploy the coordination rules to disrupt Democratic Party and progressive organizing activity. And Republicans might fear the same once control of the executive branch shifts in the future to the opposition party.
The coordination rules present a target of opportunity for a weaponizing government, and there is little reason to imagine that such a government will balk at the inconsistency or hypocrisy involved in taking after the opposition on activities no different from those in which its own side engages. Progressives who are committed to controls on political money have to consider whose hands are on those controls and what those controls mean for the tools available for popular mobilization—for the right to do politics.