Lawmakers are scrambling to respond to the Supreme Court’s Citizens United decision. Ideas on the table range from re-regulating corporations and enhancing disclosure to empowering citizens. The political parties ought to be major part of the mix — but only with an important caveat.
The re-regulation ideas so far have been looking mostly at corporations that do business with the government or ones with substantial foreign ownership or control. Some of the proposals are interesting and worthwhile but do nothing to affect the broad swath of all-but-electioneering issue ads that the Supreme Court put beyond Congress’ reach in its important 2007 decision in the Wisconsin Right to Life case. These ads can sharply criticize named candidates on the eve of an election for their positions on issues, as long as the ads do not call for the candidate’s election or defeat. They were protected before Citizens United and will continue.
Other proposals would extend disclosure to make it harder for corporations and others to hide their money by passing it through intermediary organizations. Unlike the first set, some of these proposals would reach nonprofit advocacy organizations to avoid hide-the-money shell games. Again, these include some ideas that probably should become law, but all would eventually run up against the borderline legal issues that protect issue speech from election rules.
Still others, with which I am identified, would counter the role of big money by stimulating the role of small donors. These were spelled out in a recent Campaign Finance Institute-American Enterprise Institute-Brookings Institution report that I co-authored with Anthony J. Corrado, Thomas E. Mann and Roll Call contributing writer Norman Ornstein, “Reform in an Age of Networked Campaigns: How to Foster Citizen Participation Through Small Donors and Volunteers.” Any use of public resources will be tough going politically, of course, but the key to these ideas are that they are about empowering citizens rather than what some denigrate as a handout to politicians.
A Party Solution?
One simple but potentially effective set of ideas involves the political parties. Depending upon the details, these ideas could be promising or deeply problematic.
Here’s the attraction. Free speech and robust political debate are desirable, but there is an asymmetry among speakers. Candidates in competitive races have to spend money throughout a campaign, building toward a closing crescendo. Independent spenders can hang back, waiting to see which races look the most promising and then target the one or few in which they have the strongest interest.
Whether through happenstance or cooperation (legal as long as it remains independent of the candidates), these spenders typically concentrate on a few races. When the independent spenders finally make a move, a candidate acting alone will find it hard to respond effectively. It is simply too late for most targeted candidates to raise the funds to distribute an adequate rebuttal on top of everything else they have to do during a campaign’s closing days.
This is where the parties can help. The Congressional parties bankroll millions of dollars for the end of the campaign season but wait to allocate the money until they know which races most demand their attention. The Senate campaign committees put more than $15 million into each of four different Senate races in 2008 (North Carolina, Minnesota, Oregon and New Hampshire). And the House parties made more than $1 million in independent expenditures to support or oppose 50 different candidates, topping $2 million for seven of them.
In fact, the parties gave or spent $243 million to support their candidates directly through contributions, coordinated spending or independent spending. But the problem is that $223 million (92 percent) was in the form of independent spending.
The parties have plenty of money to back up their candidates. There is no good reason to go back to soft money, which put too much power in the hands of party leaders and other officeholders to pressure donors for unlimited contributions. But independent spending by the parties — although protected constitutionally — is damaging to the country’s politics.
Almost all of the Senate parties’ independent spending in 2008 went for attack ads, as did three-fifths of the House parties’. Many of the ads were hard-hitting, but when reporters asked candidates about them, many would say, “I had nothing to do with that.” This is an absurd state of affairs. Except for the rare maverick, the parties and their candidates are not independent of each other and ought not to be required to behave as if they are. Neither candidates nor parties like the inefficiencies of independent spending, and the voters deserve better accountability.
My co-authors and I therefore argued that parties should be able to make unlimited coordinated expenditures instead of being pushed into a false and damaging independence. But we oppose taking this route unless it is coupled with one major caveat. Individuals are allowed to contribute much more to a party than to a candidate. We know from past experience that the parties can set up earmarked accounts for specific candidates. Giving money to a party to support a coordinated campaign can therefore be an obvious and easy way to get around the contribution limits for candidates.
We therefore recommend unlimited coordinated party spending, but only from party money raised from small donors. The receipts from under-$200 donors alone in the last election cycle would have let the Congressional parties turn half of their independent spending into coordinated spending. And we know from recent elections that the small-donor pool is much bigger than we once thought, and it is growing.
With this kind of a change in the law, the Congressional parties would have a major incentive to boost their small-donor efforts even more than they already have since 2002. This simple change would have been valuable even before the latest court actions. It should be part of any legislative response to Citizens United.
Michael J. Malbin is executive director of the Campaign Finance Institute and a professor of political science at the University at Albany, State University of New York.