In this pre-Labor Day period when blogging will be light, here are a few notes:

1. Robert Mutch, who has written extensively about the history of campaign finance, has now published a guide to law and rules, Campaign Finance: What Everyone Needs to Know, just published by Oxford University Press. He means “everyone.” It is a citizen’s manual, with accessible explanations of abstruse statutory regulatory, and case law material, a chronology of major developments, and a glossary of key terms. He also provides throughout comments on the campaign finance reform debate. Mutch has a point of view on reform issues--who doesn’t?--but it is not harmful to his project. It adds a little zest to the discussion and more interest, therefore, for the general reader.  That reader has long deserved a resource like this, and here it is, courtesy of Robert Mutch.

2. That same general reader might want to puzzle over some of features of the well-worn law that is Mutch’s subject. An interesting case now on appeal to the Supreme Court, which goes by the name of a plaintiff with an unambiguous politics--Stop Reckless Economic Instability Caused by Democrats--questions why it is that political committees in existence for at least six months, so-called “multicandidate” committees, may give upon passing out of their infancy more to candidates but less to political parties (provided they also meet other minimal conditions on the level of support received and given).  The multi-candidate committee satisfying this 6-month waiting period can give a candidate another $2300 per election, for a total per election limit of $5,000. But its contributions to national and state parties are substantially cut from $32,400 to $5,000 and from $10,000 to $5,000, respectively.

In a thoughtful article, Michael Kang of Emory has taken on the question of whether de-regulated political parties, taking in larger sums of money, can truly act as a bulwark against polarization—or only as yet another agent of the wealthy and their policy preferences.  He doubts donors would expect from parties any less responsiveness or gratitude. If the committed class of large donors is ideologically polarized, it is hard for him to see how party officials could resist its demands and retain the freedom to move party politics toward the center, closer to the ground for compromise.

This is one aspect of the normative case against party de-regulation he would put up against views presented by Rick Pildes, among others. (He has other concerns: for example, that "even if de-regulation of party campaign finance assigns the right balance of power among party actors, it neglects distributional equality concerns that were once a main focus of campaign finance policymaking."  Kang, Michael S., The Brave New World of Party Campaign Finance Law (2015). Cornell Law Review, Vol. 101, 2016; Emory Legal Studies Research Paper No. 15-365, at 57. Available at SSRN: http://ssrn.com/abstract=2674406.)

On this question of the direction into which parties would be pushed by the larger donors, Professor Kang gives a fairly straightforward picture of the donor and her motivation, and of the relationship of donor to party official.  The donors on this account will give only on conditions; the party officials, to get the money, will meet them.  The well-to-do donors do not have multiple motives: their demands, at least as the party official would interpret them, are of the “all or nothing” kind.  Is this a fully satisfactory account?

A few years ago, after the enactment of McCain Feingold, the Federal Election Commission began issuing implementing rules, and there were not well received in reform quarters.  It was objected that the agency was ignoring Congressional intent and gutting the law.  One line of attack was possible Hill intervention to disapprove the rules pursuant to the Congressional Review Act.   At a lunch with Senators to discuss this possibility, a prominent reform leader told the assembled legislators that if they did not reject the rules and hold the FEC to account, the public “would rise up” in protest. The public uprising did not occur, neither the Senate nor the House took action, and the reform critics took their cases to court—with some but not complete success.

But the hope for public pressure remains alive, and as Matea Gold reports in The Washington Post, there is some thought that with Super PACs and the like, things have gotten so out of hand that voters will insist on action.  The ranking of campaign finance among other priorities important to voters remains low, but by one reading, it is inching up the list.  Any upward movement is taken to be, maybe, a sign of more popular passion to come.  This is always the wish.  In the annals of modern campaign finance, it is never a wish come true.

But campaign finance history also shows that elected officials can be moved to take up this cause, and the same Post story that speculates about changes in public opinion records, more concretely, restiveness on the part of politicians.  And this could make a difference.  Candidates and officeholders cited in the story, such as Senator Lindsey Graham, worry about the small number of Americans—“about a 100 people”-- who can shape the course of a campaign with their money.  The issue for Senator Graham is not, apparently, the cost to political equality: it is the unfairness to candidates who find that these wealthy activists “are going to be able to advocate their cause at the expense of your cause.”

The Super PAC is the leading issue in campaign finance, and this is only superficially because it is new, exotic and, to many who write about it, alarming.  It has without question brought to head the fault line running through the contribution-expenditure distinction and expedited the obsolescence of the Buckley framework.  And it is forcing the question of whether we should be concerned in campaign finance about corruption or its appearance, or perhaps about something else.  And the answer is “something else.”

This is the position I submitted to the New York Times’ “Room for Debate” Forum, on the question of the state of campaign finance regulation and possible directions for its future:

 

Forty years after the passage of the federal campaign finance laws, we have considerable experience with how they work, but the debate about them has become tired and repetitive. No one is happy with the situation as it now stands: not those who worry about corruption, not those troubled by the First Amendment cost of extensive regulation, and not those who yearn to bolster public confidence in the integrity of their government. There is everywhere evidence that reconsideration and rebuilding are in order.