This is a follow-up to a first posting on this issue, now up on Just Security.

The text is also reproduced below:

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As a potential crime under the campaign finance laws, the Trump campaign collusion with the Russians is well documented. As I contended in a recent essay, there is ample evidence in plain sight. The President applauded a foreign government for its interference in the election and suggested that he would be happy to see more of the same. Asked to disavow it, he declined to do so. Both the candidate and his campaign made extensive use of the material the Russians supplied via WikiLeaks on the campaign trail and in the presidential debates. The Russians had a willing partner in their design to influence the election and a clear signal that their intervention had value. There is more than enough in the public record to warrant inquiry into the Trump campaign’s “substantial assistance” to a foreign government in violation of the campaign finance laws.

Some analysts believe that this is evidence is insufficient. They insist that more is needed in the form of direct communication between the campaign and the foreign government. But they are mistakenly discounting the significance of the evidence in plain sight, and looking in the wrong direction for more proof, if in fact more is needed.

David Frum’s thoughts about Super PACs are a useful reminder that not all the objections to these PACs are the same, not all fall within the usual range of complaints about bought-and-sold government or deepening political inequality.  Frum suggests that PACs may be victimizing donors and suffering abuse at the hands of their consultants, and that candidates, behind claims of independence, can and do disclaim all responsibility for these organizations’ behavior.  This is a set of concerns a few steps removed from the once dominant worry that these PACs would swing elections.

This perspective opens up a discussion of whether Super PACs can be brought within reasonable regulation, to deal with specific problems, without limiting the goal to the difficult and contested one of limiting independent spending.  The choice is between a hunt for anti-coordination strategies, which is essentially the hope to undo the Buckley guarantees for independent expenditures, and developing more conventional rules to account for the emergence of these PACs and the gaps in the regulatory system within which they are operating.

This is the main point urged on the reader in this paper on Super PACs: they're unlikely to disappear, because they are product of the logic of Buckley rather than a distortion of it.  Without a major change in the constitutional law, it is difficult to see how significant limits on Super PACs can be legislated or brought about by regulatory fiat.  Moreover, the “anti-coordination” rules that many are calling for would entangle and damage political organizations other than super PACs and raise legitimate, serious free speech and association issues.

At the same time, there is room for reform--some adjustment to the regulatory process--that would account for the Super PACs’ emergence and widening impact.  Transparency measures can clearly identify for the public those single-candidate Super PACs operating with the candidate’s active support and involvement.  Additional resources could be made available to other actors--parties and others--that are now more regulated than Super PACs and, and in part for that reason, steadily losing ground to them. The goal would not be a deregulated campaign finance system but one that is more rationally structured and coherent.

Rick Hasen worries that the “cure may be worse than the disease.”  He is suspicious or concerned that this is a move to restore the soft-money days that McCain-Feingold was supposed to close out.  But the proposal is not inspired by special solicitude for parties.  Parties are one of a number of electorally active organizations that would benefit from an infusion of resources but there is no case for making them the only ones.  Targeted regulatory relief should be available for other membership-based organizations, and even to candidates when conducting particular voter mobilization activities.

What Rick and others overlook, minimize, or dispute is the role of reinvigorated associational activity in enhancing political equality--in advancing the goal of "the quality of inputs" that Rick champions.  In his very good book, Plutocrats United, Rick does not grapple with the dependence of political equality on organizing and other means of building political strength on numbers, particularly among the very population of citizens he is most concerned with: those with modest resources.  As Guy-Uriel Charles has summed up the significance of association, its “main principle…is that of effective aggregation: an individual must have a reasonable opportunity to join with like-minded others for the purpose of acquiring political power.”  Guy-Uriel E. Charles, Racial Identity, Electoral Structures, and the First Amendment Right of Association, 91 Cal. L. Rev. 1209, 1248-1249 (2003).

The Federal Election Commission has not solved the “Super PAC problem,” but then again the Commissioners cannot agree on what the problem is. Others outside the agency are divided in this same way. A number of questions in contemporary campaign finance are like that. Because positions are passionately held, each side is convinced that the other is not merely mistaken but dead wrong, maybe also ill-motivated. Given the chance, proponents and opponents of new rules would like to win however they can.

So there is the hope that the Supreme Court can be shifted by a vote toward a more favorable judgment on congressional power to control campaign finance. And proposals are made to strengthen the FEC for a more decisive role. The Brennan Center suggests that the FEC could make strides in the direction if it could be restructured to a) bring an element of nonpartisanship into the choice of Commissioners, by assuring that at least one is unaffiliated with a party and b) add an additional Commissioner to the total to get to an odd number and avoid deadlocks. The changes would supposedly work together to make good decisions: the odd number of Commissions guarantees decision, and the provision for nonpartisanship improves the chance that the decision will be a good one. To secure this ingredient of nonpartisanship, the Brennan Center suggests a “blue ribbon advisory panel” to recommend nominees for consideration by the President.

The goal of a decision is different from the goal of a good decision and so, in this respect, an odd number of Commissioners only gets us so far. And no one has yet defined how “blue ribbon” recommendations of Commissioners, or the requirement that one or more of them be unaffiliated with any political party, will achieve a particular reform objective.  “Nonpartisan” Commissioners will not be without opinions; they will hold views that inform their regulatory positions, just as there are independents who reliably identify with one party or the other.

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.