A Brookings Institution study of state parties, authored by Ray La Raja and Jonathan Rauch, is the latest of the sober commentaries on contemporary campaign finance.  La Raja and Rauch conclude that state parties have lost significant ground to outside groups and are impeded in large part by federal regulation, mostly by McCain-Feingold, in performing critical functions. They would like to see for these state parties increased or eliminated contribution limits, deregulation to enhance their ability to coordinate with candidates and to conduct ticket-wide activities, and perhaps even public financing measures in the form of tax deductible contributions.  The strengthening of state parties, they are convinced, can promote more moderate politics; it can offset to some extent the polarizing forces unleashed by “outside groups.”

It is a thoughtful report and a contribution to the growing consensus that campaign finance laws today are unworkable and in desperate need of reform.  The question is: are state parties, for the reasons given, an appropriately special focus of reform.

As the authors note, there are other reasons for the struggles of state parties and the rise of the outside groups.  Laws and rules may add to the problem but are not its exclusive cause. Much of what La Raja and Rauch say about state parties would apply to the parties as a whole, at the national as well as the state and local level, and there are other actors within the regulated system also clamoring with justification for relief from outdated, burdensome, and pointless regulatory limits.

The case for singling out the state parties rests on La Raja and Rauch’s belief that these organizations are “important nodes of the political equivalent of civil society,” capable of creating “social capital by building connections, trust, and cooperation across diverse individuals and groups.”

This is a strong claim.

Right now the basic complaint about Super PACs is that they can enlist the and endorsement support of their favored candidates, as in fundraising, and still claim they are “independent” and spend without limit.  But the Supreme Court—not the FEC, not wily campaign finance lawyers—is the reason why this is possible.  In Buckley, the Court tied “independence” to the coordination of specific expenditures with candidates. Without this coordination, the Buckley Court determined, the candidate runs the risk that the expenditure could be unhelpful or counterproductive and is not fairly charged with a “contribution” subject to limits.

No candidate request, control or involvement means, therefore, no spending limits.  The independent committee's public advertising then must contain a specific statement that the candidate did not "authorize" the communication. 11 C.F.R. §110.11(b)(3). This may be true, but the voter checking the committee’s formal registration with the FEC will find that the committee declares itself, and not just a specific expenditure, to be unauthorized.

In a technical sense, this is true: the committee is “unauthorized” because it is an independent committee whose expenditures are made without the candidate’s direction or involvement.  But the absence of control over or involvement in particular independent committee expenditures does not mean the absence of any contact with the committee.  The candidates can applaud an independent committee’s formation and operation for their benefit, and they may appear at the committee's events as guests or featured speakers and assist with its fundraising.

Voters may well be perplexed.

The reform debate about the political parties is getting stuck on the question of whether, or to what extent, deregulation will improve the tone and ideological cast of national politics.  Some have argued that relieving parties of this or that restriction will alleviate pressures toward polarization and perhaps promote more centrist, moderate politics, in large measure by giving party leaders more influence.  There is some evidence for this, but it is naturally being disputed in a fight between the “purists” who resists deregulation and the “pragmatists” who favor it, and neither side to this debate is likely to score a decisive victory.  So if there can be no clear outcome, there is every reason to hope that not too much is riding on one.

When one day it has more or less run its course, the scholarship will likely show the party leaders with more money at their disposal can use it for better and for worse.  In some cases they will have the will and the means to check the extremes and expand their capacity to negotiate with opponents and move productive legislation. In others, this will not be the case.  Which of these alternative scenarios comes to pass in any state, in any time, will depend on a range of factors, including differences in states and regions and their politics, differences between the parties, the complexities of what is sometimes called the "issue environment,” and other factors.  As Lee Drutman has noted, “polarization is a function of many, many things,” and campaign finance may be only one such thing.

Before all these questions is another one: the difficulty of pinning down what one means by centrist or moderate politics, or even by a civil tone (notwithstanding some contemporary, notable examples of grotesque excess).  And another question: whether the moderate position is in all circumstances the most desirable one, if the policy described as “moderate” is just a product of splitting the difference.  The policies born of getting something done just for its own sake are not always distinguished by their effectiveness.

It is a better bet – – and a bet it is – that some of the time, empowered party leadership with stronger parties behind them can better perform their jobs. Right now they compete for their political influence with candidates who can build their own fundraising bases, and with outside groups (some of which, like Super PACs and (c) organizations, can be indistinguishable from the rest of a candidate’s, well, “support network.”).  To put parties at a disadvantage in this transformed political battlefield should require sound, well-supported policy justification.  Four years now, the justification has fallen entirely on the parties’ supposed role in fomenting corruption, the result of their (once) unique intimacy with candidates.

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?

California has approved rules to better keep Super PACs in line.  The Fair Political Practices Commission has its eyes on the federal and other states’ election law controversies, noting in a press release that it is acting “on the heels of a national trend toward increased coordination between candidates and Independent Expenditure (IR) committees—a trend the FPPC seeks to stop.”  It wishes to enforce the “highest degree of separation that is constitutionally permissible “ to counter “new strategies being used by outside groups.”  Memorandum from Jack Woodside and Hyla Wagner, to Chair Remke and Commissioners, “Independent Expenditures: Adoption of Amendments to Regulation 18225.7” (October 5, 2015), at 3, 4.

The FPPC regulations already use “rebuttable presumptions” to identify the factual circumstances in which coordination is present or where there is good reason to suspect it. It has also provided for some exceptions—“safe harbors”-- for certain contacts between candidates and the IE committee.  In the revised rules approved last week, the FPPC adds to the presumptions and to the safe harbors.