One question recently raised here is whether in thinking about campaign finance reform, New York Times editorialists and their followers would place a limit on how much would be spent, and how negatively, to keep Donald Trump out of the White House. The Times believes him to dangerous to the country, entirely unfit for office, at the same time that it counsels that the process by which he or any candidate is evaluated must include restrictions on expenditures to urge defeat (or election). It is fair to note these tensions, testing reform principles and intuitions in the concrete conditions of electoral competition where there are found real candidacies, meaningful choices, and serious consequences.

A similar test might be conducted in the case of limits directed toward the timing of certain speech. Under campaign finance jurisprudence, the First Amendment recognizes a difference between fully protected “issues” speech and the speech with the effect or purpose of influencing elections that may be regulated to prevent corruption or its appearance. The reforms of recent years have whittled away at the distinction, regulating electioneering communications on policy issues that may contain a reference to a candidate and so, being close to an election, could sway voters. The usual formula ropes this speech into regulatory control within thirty or sixty days of an election.

The reform theory has been that the purpose of such communications is likely to influence an election, and if not the purpose, then its effect, and records have been assembled to establish that the spenders have in mind to make a mockery of the law and that stricter enforcement is therefore essential. In the thick of the election, it is argued, the candidate/issue line distinction does not hold, and the aims of campaign finance laws, both limitations and disclosure, should control. The Supreme Court has trimmed back this theory, and a now complex jurisprudence allows for election season-specific regulation of communications “susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate.” Wisconsin Right to Life v. Federal Election Commission, 551 U.S. 449, 469-470 (2007).

In the current election, the Trump candidacy will test acceptance of the basic reform tenet about the election season regulation of issues speech.  With the debate about Trump has come a debate about the package of stances that has come to be known as “Trumpism.” A number of his supporters have defined it as “ secure borders, economic nationalism, interests-based foreign policy, and above all judging every government action through a single lens: does this help or harm Americans?” It is recognized that the program cannot be argued, for or against, without reference to Trump: “For now, the principal vehicle of Trumpism is Trump.”  And Trump critics, ones as severe as Paul Krugman, recognize the “Trumpism” behind Trump.

The Supreme Court will soon decide whether to take up a major case about disclosure and this has received little attention—far less than it should. At issue is the clarification of how far government authority extends in requiring the disclosure of the financing of “issues speech”--speech or just information about candidates’ positions that does not involve engaging in advocacy of their election or defeat. There are reasons why the case might have been overlooked: it involves a small organization in a small state, and the activity concerns state and local, not federal (much less presidential), candidates. Perhaps, also, because it is “just” about disclosure, this case might be supposed to pose little danger of harm to anyone’s rights or legitimate expectations.

This is serious business. As the states move along with their own reform programs, and as litigation proceeds under different standards applied by different circuits and diminishing consistency in the treatment of federal and state or local-level enactment, disclosure doctrine is losing its coherence, and key constitutional distinctions once taken for granted are being rapidly eroded. One disturbing result: the “big” and sophisticated spenders at the federal level are more protected than the “little guy” at the levels below.

In the case in question, Delaware Strong Families v. Denn, the speech took the form of a Voter Guide that reproduced positions supplied by the candidates themselves, or in the case of candidates who declined to cooperate, their stated positions drawn from the public record. DSF is a 501(c)(3) barred from endorsing candidates, unlike an affiliated (c)(4) that may and does. There is no allegation that the (c)(3) is evading the prohibition on partisan speech. Delaware has enacted a disclosure law that applies to this Guide, requiring the disclosure of DSF donors who have given over $100 over a four- year period. The law covers all speech referring to candidates, whether by broadcast, mail or Internet, within 30 days of a primary election or 60 days of a general. It is triggered by the expenditure of more than $500 without regard to the size of the audience.

DSF sued and won in district court, then suffered a reversal of fortune in the Third Circuit Court of Appeals. The short opinion issued by the Third Circuit is striking in its breadth and, one might say, daring. It looks past the critical Buckley distinction between express and issue advocacy, apparently in the belief that, on this point, the 1976 decision has been overtaken by the decisions in McConnell and Citizens United, especially the latter, which it reads to allow for the regulation of any issues speech that could influence voter choice. So, on the assumption that its position is well supported by recent developments in the constitutional law, the Third Circuit embraced this view:

By selecting issues on which to focus, a voter guide that mentions candidates by name and is distributed close to an election is, at a minimum, issue advocacy. Thus, the disclosure requirements can properly apply to DSF’s Voter Guide…”

793 F.3d 304, 309 (July 16, 2015)

The State of Delaware has joined with reform organizations to defend this proposition. It concedes that the statute is expansive in reach, sweeping in smaller organizations and small-scale spending. But it justifies aggressive disclosure policy in a state the size of Delaware, where a little spending goes a long way. It contends that states have the right to decide how much spending is effective in the local conditions in which it occurs, taking in account the size of the electorate and other factors, and to apply disclosure requirements accordingly.   And the states can conclude that issues speech—in this case, the duplication of material the candidates supply –triggers mandatory disclosure of small donors in the interests of an informed electorate.

The Republican Commissioners have now explained why they would not agree to investigate claims that a company pressured employees to make political contributions. Their joint Statement is a skillful piece of work and, on certain of the specific evidentiary issues in this case, it scores a point or two.

But:

These Commissioners understand that they are both disposing of the particular case and making a broader statement about the law, and what comes across in their analysis is the narrowest of readings of the protections against coercion. To them, this is a First Amendment issue—the right of a company to promote employee giving, so long as a) it faithfully includes anti-coercion language as required by law in all written solicitations, and b) applies heavy pressure without explicit threats. The Republican Commissioners have mapped out a path for employers to badger those who work for them into making contributions. Nowhere in their analysis do they display much interest in the First Amendment interests on the other side of this relationship, among the employees-- except for this sentence, which makes a lonely appearance at the beginning and appears to have little effect on the balance of the analysis: “The coercion of a person’s political contributions to a [PAC]…is a grave interference of a person’s core constitutional rights.”

The New York Times Editorial Board has returned, as it reliably does, to the subject of money in politics.  It is taking stock of campaign finance in this year of the unexpected, and it argues that “big money” has adjusted its strategy, especially in the Republican ranks, where donors spooked by Trump and fearful of loss are supposedly moving money “down ballot.”  This may prove to the case, or it may not, but the editorial underscores the point that the more times change, the more certain arguments remain the same and yet, for that very reason, may raise unintended questions.

The standard reform case has long disputed that it is concerned with the amount of money in politics.  It is argued that none of the regulatory measures advocated have as their purpose a limitation on how much is spent.  But the Times goes back to just this anxiety—“the “vast amount of money sluicing through the political system,” the breaking of all spending records, the “frenzied pace” to raise and spend more of it.

The same reform argument that disputes that it is focused on volume also usually denies that its goal is to channel money into more productive and healthier uses-- cleansing the system of dirty politics or negative campaigning or manipulative advertising. Here again, the Times shows that old habits die hard.  It is troubled that so much of the spending underwrites “toxic advertising.”  It notes the descent of non-profit activity into “bare-knuckle” politics.  And it adds the complaint that there is excessive waste in the system, “enriching the new breed of fat-cat campaign operatives.”

What the Times does not account for—and what may pose the largest problem for reform driven by anxieties about volume and its salutary use—are the stakes that parties, political groups, activists, and others may perceive in the contests on which so much is spent.

The FEC has once again deadlocked on an enforcement case and left an important question dangerously open.  Months ago, the FEC could do nothing useful with a case about the use of LLCs to make contributions.  Now it is inviting trouble, and not for the first time, with a case about how hard a corporation may press its employees to support the employer’s political program.

In the recent case, the FEC was forced by the usual 3-3 division to dismiss a complaint that a company pressured employees to make political contributions to its PAC and favored candidates.  The question before the agency was whether to investigate. There were reasons, including internal company documents.  In one of them, the company advised managers that “we have been insulted by every salaried employee who does not support our efforts.”  There was a press report recounting the experience of unnamed employees with coercive practices, and one employee put her complaint on the public record as part of a wrongful termination action.

It cannot be known if, on investigation, the FEC would have found enough to support a conclusive finding of violation.  The dissenting Commissioners who declined to support further inquiry may have had their so far unexplained reasons.  But with the dismissal of the Complaint and nothing more heard from the agency, the regulated community has a fresh signal of either Commission paralysis on an issue of central importance, or of ominous possibilities now available to employers in soliciting political contributions from their eligible managerial ranks.