Below is the text of a speech delivered this month to the American Constitution Chapter of Duke University Law School.

The Supreme Court has taken yet another case testing the McCain-Feingold campaign finance reforms, and informed observers anticipate another defeat for the 2002 law. But it could be more consequential than just one more loss in the war against soft money. The case, McCutcheon, is a case involving “hard money” contribution limits which, it has been assumed to this point, Congress possesses wide authority to impose and enforce.

This is the great divide established by Buckley v. Valeo, the one that separates “contributions” from “expenditures” on the theory that restrictions on contributions to candidates pose less of a threat to speech than those applied to expenditures that travel from the wallet of the spender directly to the airwaves or into the mailbox. One is taken to be a weaker form of expression than the other and entitled to less protection.

Such is the standing framework within which the constitutional issues affecting campaign finance are judged: one form of speech or the other, each weighed differently on the First Amendment scale. And trailing along behind them is the right to association, a distant third, and really an echo of the first two, as the associational interest here is typically treated as “expressive” in nature.

As someone who has long represented political actors—counseling on various forms of political action—I detect a problem here, which I would like to explore. It is the problem of refusing independent recognition, a weight all of its own, to political action—the business of building coalitions and acting in concert with allies to achieve political goals. The challenge is to distinguish political action from pure speech and locate a constitutional interest in what I will call here “doing politics.”

This gap in appreciation of the value of political action might also explain the ambivalence that has developed in the progressive community over the impact of reforms, such as the McCain Feingold reforms, that the community generally supports. There is a history of this ambivalence, manifested on occasion in outright resistance, most memorably on the part of Eugene McCarthy, who contributed to Lyndon Johnson’s decision to stay out of the Presidential campaign of l968 and who argued thereafter that limits on funding such as those Congress later enacted would have been fatal to the anti-war effort of his day. In 2004, another period of progressive anti-war politics during the occupation of Iraq, we saw some of the same, less fully articulated rejection (or, as critics would have it, evasion) of campaign finance constraints.

So there is an interesting story to be told here about conflicts within progressive politics over the incentives and disincentives that reforms of recent years have created for different forms of political action. What follows is an account of a highlight of that debate. I offer it without the intention of making the case for one side or the other. I am trying to stand back from the fight and understand better what people may be fighting about.

What I mean to show is that the constitutional lens through which we view these issues seems to be clouded and blocks or dims a critical interest in “doing politics,” which is not to be confused as overlapping in its entirety with an interest in speech. My focus in making this point is the distinction in contemporary jurisprudence between “contributions” and “expenditures” and the issue it has raised of so-called “coordinated expenditures.”

The Basics: The Contribution/Expenditure Distinction

The relaxed defense of contributions rests on the view that a contribution given to a candidate or a political committee is “proxy” speech. You have provided the money; the recipient converts it to speech but it becomes as much the recipient’s as yours, so your First Amendment claim is thinner. And, as will prove central to the rest of the tale, your First Amendment position is largely based on the associational value to you of the contribution: you may give within the limits enough to establish affinity or solidarity with the candidate or committee and to help them out. But the limits are not all that grave an affront to your constitutional rights because while they afford you enough room to stand visibly with the candidate, they don’t bite all that deeply into your speech, which is only “proxy” speech.

By contrast, an expenditure is your speech—the money you spend underwrites the expression of your view—if, that is, it is truly independent speech, and has not been directed by, or made at the request and suggestion of, or in concert or consultation with, the candidate. If you are spending at the direction of or in close consultation with the candidate, then your spending is not different in character from a contribution: you are opening your account to the candidate’s or another political organization’s use in funding their own speech.

And the Court reasoned that contributions are more dangerous, more corruptive in effect, than expenditures made independently of the candidate who may have qualms about their timing or content—and so would have less reason to reward even the well-meaning spender who gets in the way of the messaging or smooth operation of the campaign.

This latter type of contribution—in form, an expenditure but in function, just like a contribution—is known as a coordinated expenditure. As simple as it may seem, it has bedeviled the field of campaign finance regulation. To reform-minded critics of campaign finance law and enforcement, regulation of coordinated expenditures has been lax, and regulators’ failure to police them has opened up a massive loophole in the law through which expenditures flow on sham claims of “independence.” One way or the other, organizations with plenty of money find ways to collude (i.e. coordinate) with candidates or parties. But they deny it, of course. (And I am excluding from this account another complaint about independent expenditures, which is that a zealous defense of their immunity from regulation led directly to the Citizens United decision that sanctioned unlimited, independent spending by corporations.)

To this argument, defenders of the privileged position of expenditures reply that the government inquiry into coordination, particularly its more subtle forms, will simply erase the difference between contribution and expenditure. After all, flat-out collusion is never really the issue. It may happen, but few would deny that if it does, the expenditure loses its protected character. The reform attack on coordinated expenditures is directed far more at the sly or crafty means by which candidates or parties steer expenditures by others that are nominally “independent.” Maybe the independent expenditure is mapped out by individuals who used to work for the candidate or party; or, taking the example of an ad, it is produced by a media firm that works for both the candidate and the organization acting independently of that candidate (or so it claims).

Or the candidate and the party have had contact with the spender but not specifically on the plans to make expenditures. Instead they have communicated on other issues, over the normal course of a political relationship, creating the opportunity for strategically useful information to pass from the candidate to the spender. Such would be the case if the candidate were an incumbent officeholder working on legislation with allies—a union or trade association, for example—who will also later or simultaneously advocate the candidate’s re-election.

This has been the crux of the legislative and regulatory mission to distinguish the coordinated expenditure from the truly independent one: in other words, to determine which expenditures would be relegated to the inferior constitutional status of contributions. And here we see a problem with a speech-centered analysis. In effect we have pure speech, fully protected, and a less pure version—less pure because the speech has been put to the service of political action and is intertwined with it. Speak at a distance, and you are safe; speak to or with allies at close quarters, and regulatory pressures intensify.

In recent years, with the enactment of McCain-Feingold, the escalated rulemaking and enforcement of “coordination” rules has clarified the difficulties resulting from slighting the interest in political action. And in the course of this development, fissures have opened in the progressive community’s support for reform efforts for just this reason.

The Fight Over “Coordination”

McCain-Feingold directed the repeal of the coordinated expenditure rules in effect prior to 2002 and a fresh FEC rulemaking to replace it. It was specific about which of the lines it wished to have drawn. The FEC was instructed to address the cases where the coordination took the form of republication of the candidate’s own materials, or the use of common vendors or former candidate or party employees to skirt the requirement of true independence. Of particular sensitivity was the direction given to the agency to determine when any “substantial discussion” between the candidate or spender put that independence into doubt, and the new law specifically barred the new rule from conditioning enforcement on the finding of an actual agreement or formal collaboration between the candidate and spender. It was enough that useful information passed—by whatever manner of suggestion, by wink or by nod—from the candidate to the spender.

In the litigation over McCain-Feingold that followed, the coordinated expenditure provision of the new law came under attack along with the others, but the usual opponents of regulated campaign finance found an ally on this issue in organized labor. The AFL-CIO, a long-time proponent of campaign finance reform, raised concerns that the direction given to the agency was too vague and could result in constitutionally intolerable interference with normal—and indispensable—political communications and association. In its brief to the Court, it raised the issue from its perspective in a series of questions:

Does a political party ‘request or suggest’ expenditures by third parties when a party official publicly identifies the party’s principal campaign themes and the states where the party hopes to prevail? Is the result different if the same message is delivered in a ‘private’ strategy session, and, if so, how many party activists must be present before a meeting loses its private character? Has a union official acted ‘in cooperation … or concert with’ a political party if he meets with the party’s congressional leadership to plan strategy in support of the party’s legislative agenda, including union expenditures in support of that agenda? If a trade association lobbyist participates in planning party activities during the early stages of a campaign season, will the use of information she has learned about the party’s plans turn all of her group’s subsequent independent expenditures into contributions because of improper ‘consultation?’ (Brief of AFL-CIO Appellants/Cross-Appellees at 36-37, Am. Fed’n of Labor & Cong. Indus. Orgs. v. Fed. Election Comm’n, 540 U.S. 93 (2003) (No. 02-1755), 2003 WL 22002431)

The AFL also argued that without a requirement of “agreement or formal collaboration,” the rule the Congress contemplated could not pass constitutional muster. “[W]ithout proof of ‘agreement or formal collaboration,’ the statutory provisions clearly reach a broad range of conduct, including mere consultation with a candidate or party, which is constitutionally protected.” (Id. at 43)

The AFL’s questions, coupled with the attention paid to ongoing “consultation” with allies, suggest the nature of the interest most threatened by free-ranging anti-coordination rules. It is a speech interest, yes, in part, but also a strong associational interest: the interest in effective coalitions and alliances with those, including candidates and parties, who share broadly the AFL’s goals. Compounding the doctrinal infirmities the AFL identifies is the further harm to the associational right from the mere fact of investigative inquiry. The AFL points to prior enforcement activities and argues that these can be “crippling” and “intrusive,” involving “extensive discovery into the inner workings of [an] organization” and demands for ‘extraordinarily sensitive political information [including] plans and strategies for winning elections, materials detailing political and associational activities, and personal information concerning hundreds of employees, volunteers and members…’ (Id. at 35.22, citing AFL-CIO v. Federal Election Commission, 177 F. Supp. 2d 48, 51 (D.D.C. 2001))

The AFL lost its point with the Court. The five Justices voting to uphold the better part of the reform were not troubled by the Congressional initiative on coordination. In particular, it dismissed the AFL’s fear that without limiting any eventual rule to agreements or formal collaboration, the FEC was sure to go too far. The Court concluded that Congress could have latitude in assuring that any independence a spender claimed was “total.” Any limitation to agreements or formal collaboration would tie the regulators’ hands and defeat their inquiry into subterranean or surreptitious maneuvers—the sort of inquiries the AFL described as “crippling” or “intrusive.”

This was not the last word on the subject. The FEC promulgated rules, reform organizations sued and won, and the rules were re-worked. We have coordination rules now, but as the campaign laws have frayed, worn somewhat thinner by Supreme Court adjudication, and as forms of political action have changed with the advent of Super PACs and a freshly assertive community of tax-exempt organizations like Crossroads GPS, the coordination debate has acquired fresh intensity. Critics believe that the rules are weak, bordering on useless, and that what is needed is a set of restrictions on all the channels of communication between Super PACs, tax-exempts and the candidates and parties that may facilitate “collusion.” The goal is “total independence.” (Trevor Potter and Bryson B. Morgan, Campaign Finance: Remedies Beyond the Court, DEMOCRACY, Winter 2013 at 38, 40)

But the AFL-CIO brief argued for careful attention to the costs, and the nature of the interest it identifies bears closer examination. At issue is the associational interest inherent in political organizing and concerted action. And the standard debate on campaign finance, so preoccupied with the values of “speech,” takes limited account of that interest, and may even slide into hostility to it. Organizing and concerted action in the eyes of one observer may strike another as merely the elements of a conspiracy.

“Coordination,” Association and Concerted Political Action

Returning to the basic contribution and expenditure distinction, it becomes possible to see in the Buckley framework the secondary position of the associational interest, i.e. the interest that seems closest in substance and spirit to the interest in concerted political action. The contribution made to an organization, as an act of pooling and managing resources with others, presents just the feature of association—the drive to concerted action—that makes up the heart of this interest. The Court in Buckley was more affected by these donations as acts of speech, and as a watered-down form of such expression or speech by “proxy,” subject to greater regulatory control. The associational element is important only insofar as it is a form of expression, the vehicle by which support is symbolically communicated:

The Act’s contribution and expenditure limitations also impinge on protected associational freedoms. Making a contribution, like joining a political party, serves to affiliate a person with a candidate. In addition, it enables like-minded persons to pool their resources in furtherance of common political goals. The Act’s contribution ceilings thus limit one important means of associating with a candidate or committee, but leave the contributor free to become a member of any political association and to assist personally in the association’s efforts on behalf of candidates. And the Act’s contribution limitations permit associations and candidates to aggregate large sums of money to promote effective advocacy. (Buckley v. Valeo, 424 U.S. 1, at 14 (1976))

And this is less serious a problem from a constitutional point of view than limits on “independent expenditures,” as the Court explains in this way:

By contrast, the Act’s $1,000 limitation on independent expenditures ‘relative to a clearly identified candidate’ precludes most associations from effectively amplifying the voice of their adherents, the original basis for the recognition of First Amendment protection of the freedom of association. The Act’s constraints on the ability of independent associations and candidate campaign organizations to expend resources on political expression ‘is simultaneously an interference with the freedom of (their) adherents.’ (Id. at 22)

The Court acknowledged the core associational value—that the contribution “enables like-minded persons to pool their resources in furtherance of common political goals”—but it decided that if the contributions hamper this collective political endeavor, “the contributor [is] free to become a member of any political association and to assist personally in the association’s efforts on behalf of candidates.” In other words, in place of money, the contributor can enjoy membership—does the Court mean here yet another form of expression by affiliation?—or donate time.

But, as Professor Theda Skocpol has written, “money is important for association building,” and she offers that observation in discussing what she refers to in the title of her book as Diminished Democracy. The diminishment is diminished associational participation in civic and political life—a problem exacerbated by reforms structured with a bias toward “elevating the thinking individual over all kinds of group mobilization.” And from a progressive perspective, she worries that “intentionally or not, late-twentieth century reforms have pushed our polity away from true popular mobilization in politics,” the result being to “further the tilt toward the rich and those with advanced degrees.” (Theda Skocpol, DIMINISHED DEMOCRACY 282-283 (2004))

To the degree that coordination rules convert expenditures into contributions, moving the money spent into less protected communications, they do so on the premise that organizations engaged in coordination are simply enhancing their election-related speech. But, as the AFL pointed out, an organization may have a wide variety of contacts in the course of building, maintaining or expanding its program of concerted political action. This is political activity that we might define as an associational whole greater than its constituent speech parts. Not all these contacts have as their goal or end-point an advertising campaign, and not all public communications that emerge after these contacts are directed toward elections rather than, say, communication with officials and the public about public policy matters.

The enforcement official winces at this statement and complains, not unreasonably, that political communications may be undertaken for a variety of purposes, and that if the multiplicity of function or motive is enough to scuttle inquiry or enforcement, then the rules will be largely worthless. The communication with a party may serve other shared goals, like the passage of legislation, but it may also, as a matter of fact, aid in coordinating election-related messages. The presence of other benefits achieved from the communication does not negate the electoral gain or excuse for ignoring it. To adopt willful blindness on this point would only encourage political actors to construct communications they can defend as primarily or at least partly dedicated to other, non-campaign objectives.

This issue, not alone among campaign finance regulatory issues, can be understood as requiring for its resolution the balancing of risk and reward. The reward is a flexible standard for judging coordination, allowing for tougher enforcement and engendering a healthier wariness within the regulated community about testing the boundaries of the law. The risk is raising the cost of association and making it that much harder for alliances to be assembled and effectively managed. The law as now constructed, and the proposals for strengthening it, are highly attuned to the reward, but—so progressive critics might say—less informed about or sensitive to the risks. A campaign finance jurisprudence that assigns so little weight to the associational interest in political action described here, effectively defining it as a form and, for that matter, a lower-rung form of the expressive interest, does not satisfactorily frame for decision this question of balancing risk and reward.

In design, the enforcement of the coordination rules are necessarily, on contemporary enforcement theory, invasive. They are meant to ferret out the sharing of information—the rules speak of information transmitted about a candidate or party’s “plans, projects, activities or needs”—and to determine whether this information was material somehow to the fashioning of election-related speech. Moreover, these rules also pick up in the analysis and consider the identities of individuals involved in communications and whether they had prior staff or professional relationships with the candidate or party (11 C.F.R. 109.21). As the AFL pointed out, active investigative inquiry into these matters is in and of itself “intrusive.” Such is the case whenever the questions asked about political communications are who said what, when and to whom.

The question raised about the current campaign finance doctrine’s treatment of associational interests does not arise only in relation to the operation of so-called outside groups, the Super PACs or tax-exempt advocacy groups. In recent years, the Supreme Court has held that parties can spend freely on elections only if they do so independently of their candidates (Colorado Federal Campaign Committee v. Federal Election Commission, 518 U.S. 604 (1996)). And McCain Feingold, of course, through its prohibition on party soft money, limited the resources parties had available to spend without limit when adopting this posture of “independence.” Strange as it may seem, parties are also subject to coordination rules—that is, with their own candidates. Perhaps there is no better illustration of the weak standing of the associational interest—the interest in “doing politics”— as defined for our purposes here.

Thinking about the Interest in “Doing Politics”

What could explain the gap, the failing here, in our conception of the constitutional value we accord to political action? This is a broad question, and a deep one, and I do not have for my part a fully developed proposal for how to think about this question.

What does seem clear is that our constitutional jurisprudence takes political action and effectively compresses it into so many individual speech units. Political activity is valuable insofar as it accommodates acceptably each of these speech units; it is made up of them and serves to organize and transmit. Hence the associational interest we recognize is an expressive one. We associate to communicate views, and the association per se is, as an interest, purely instrumental in character. And, as Professor George Kateb has written, in an elegant essay on associational rights, “to instrumentalize a right is to invite abridgements of it.” (George Kateb, The Value of Association, in FREEDOM OF ASSOCIATION 35, 53 (Amy Gutman ed., 1998))

Political action—and the association required to act politically—has been hampered in current constitutional jurisprudence by this instrumentalization, its reduction in large measure to a means to another end. As Hannah Arendt reminded her readers, action and speech are inextricable in the realm of politics. One cannot be divorced from the other if what we are talking about is the distinct and autonomous realm of politics, a realm in which individuals interacting as equals strive in concert to fashion what is new. (See Hannah Arendt, THE PROMISE OF POLITICS (2007)) People talk and argue with each other, build and re-build coalitions, both temporary and more enduring ones; they speak while they organize, and organize through speech, and this political space is alive with noise and energy. It seems that often the case law assumes that politics exists to serve speech, whereas, in the sense I intend here, speech serves politics, and action and speech are the constituent and interdependent parts of political life.

In a culture like ours, the healthy suspicion we have of government and of political power more generally can slide easily into a derogation of the political sphere. We are more comfortable, it seems, with a view of politics that reduces it to various forms of speech. From there we arrive at stronger and weaker forms of speech, and the weakest form of protection is accorded to the type of speech that links us together and presents itself in the form of concerted political enterprise. What we value most is the lone speaker; her claim to be heard rises above all others.

Conclusion

The enforcement of the campaign finance laws is no easy task. The law is complex, political practice is always changing faster than regulatory theory and authority, and the courts, particularly the Supreme Court, have hemmed in the regulators with decisions that expand the domain of protected speech. The anti-coordination rules are fairly viewed with a measure of sympathy for the hard job the Congress faces in designing, and the FEC in implementing, meaningful contribution limits.

Progressive activists, however, have also appreciated that the campaign finance laws reflect in doctrine and application little grasp of associational interests beyond their expressive function. This is an issue for progressives, as well as an occasion to take stock of the reform enterprise and better adapt it to these interests.

Writing in 1997, when an early version of McCain Feingold was under consideration but the reform was still five years off, John B. Judis worried that organized politics was receiving inadequate attention. Organizations, he wrote in The American Prospect, are “really the only way for individuals who are not billionaires to exert power.” What’s more, to counter inequality in the economic system, “average citizens…had to organize in labor unions, civil rights organizations, civic organizations, and other associations, and they had to work through the political parties.” So, he concluded, political reform, far from seeking to eliminate or curb organized interests, should be structured to encourage them—so that “organized interests of workers and citizens can contend equally with those of business and the wealthy.” (John B. Judis, Below the Beltway: Goo-Goos v. Populists, THE AMERICAN PROSPECT, December 19, 2001)