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Nothing’s left of the post-Watergate campaign-finance reforms

Gary Hart
REUTERS/Alexander Natruskin
Gary Hart

Gary Hart tells Politico he is worried that money is overwhelming politics and that the prospect of a Clinton-Bush race in 2016 suggests a new "dynastic" nature to American politics.

Here's the money quote (pun intended) from Hart: “If you’ve got to have a billion dollars to run for president, how many people can do that? Only the Clintons and the Bushes and one or two others.”

No duh. But he's right and we need some of his patented "new ideas" in our politics, and especially new ideas about how to get the money race under control. Because the old ideas have all been declared unconstitutional.

The two fundamental ideas around which the entire post-Watergate campaign-finance regulatory scheme was built were limits on how much any one donor could give and disclosure of who is giving. An underemphasized story in last week's Washington Post seemed to say that there is nothing meaningful left of either idea.

The story by Ed O'Keefe and Matea Gold was headlined "How a Bush-allied nonprofit could inject more secret money into ’16 race," but that strikes me as understated.

It was already true that individuals could give unlimited sums to help their favorite candidates get elected, as long as they didn't give it directly to the candidate's campaign. It was already true that the kinds of "Super PACs" to which they could donate unlimited sums could be even more valuable than money given directly to the candidates, because the Super PACs could spend the money on ads so scummy that that the candidate wouldn't want to be associated with them, and the candidate could say that he had nothing to do with them. But in order to make that gag work, the candidate's campaign and the Super PAC had to maintain some credible illusion of "non-coordination" of their activities.

But according to the Post piece, even that last inconvenience has been made to disappear by the latest wrinkle. From the story:

Jeb Bush has given his tacit endorsement to a new group that can collect unlimited amounts of money in secret, part of a bold effort by his advisers to create a robust external political operation before he declares his expected White House bid.

The nonprofit group, Right to Rise Policy Solutions, was quietly established in Arkansas in February by a friend and former Bush staffer. The group shares the name of two political committees for which Bush has been aggressively raising money — blurring the line that is supposed to separate a campaign from independent groups.

While ideological nonprofits have become major players in national politics in recent years, this marks the first time one has been so embedded in the network of a prospective candidate.

What I get from this is that even the shred of credibility still attached to the pitiful notion of "non-coordination" now lays in tatters, assuming that a "shred" can lay in "tatters."

The U.S. Supreme Court has ruled that any more burdensome regulation than this would be inconsistent with the First Amendment right of free expression.

If you missed it, I wrote a piece last year as part of the "Electoral Dysfunction" series documenting how other democracies — democracies like England, Canada and France that like to think that they value free speech too — have found that regulation of the intersection of money and speech is absolutely necessary to keep election campaigns from turning into auctions.

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Comments (16)

The problem is downballot

As concerning as big money in presidential elections might be, it seems a lot of the money is wasted. My sense is campaign spending has hit the saturation point. I'm more concerned about the impact on elections down the ballot, where some billionaire's pocket change can swamp an election for offices like state legislature or mayor. I wish voters would learn to be more skeptical about what comes in the mail, at least as much as they're learned to be skeptical about TV ads.

The problem is

that while most politicians probably agree with you, incumbents usually raise more money, and usually win re-election. So no one want to test it.

Here's a solution

Although it's illegal for foreign nationals and foreign corporations to contribute to political campaigns, it's been alleged that Barack Obama received hundreds of millions of dollars from foreign contributors via VISA cash cards paid online.

And the scandal that will ultimately take down Mrs. Clinton is the one involving her solicitation of funds from foreign governments and individuals for the family business (the tax-exempt Clinton Foundation) which will be converted to fund her campaign.

So clamping down on illegal foreign contributions is still an avenue that can be pursued by those who claim to be outraged at the huge sums of money in political campaigns.

But another avenue that could be pursued that would pass constitutional muster, would be to, like the rationale on the ban on foreign contributions, limit contributions to the jurisdictional limits of the race.

As in the case of the U.S. presidency, contributions are already limited to U.S. citizens (with the constitutional argument that foreigners have no jurisdictional dog in the fight). Why not limit contributions for U.S. Senate to the state of that senate seat? and limiting contributions for U.S. Congress to citizens within that congressional district? (We could extend that idea to races for state governor and city mayors while we're at it.)

It's logical, it's constitutional, it's fair, and it seems to me that people of all political stripes who are sincere in their alleged concern would agree to such a rule change.

Constitutional on what planet?

Please explain why it would be constitutional to ban a person from contributing to an election campaign in another state.

In case you were wondering, "We say that about foreigners" isn't a compelling constitutional argument.

wrong and anti-freedom...

I agree with the contribution from outside the U.S. However, as you mentioned, the democrats have already found ways around that regulation.

The Hilary foundation issue of receiving contributions from foreign governments (while S.O.S.) is just a little "dust-up" that will never anger the "principled" advocates of campaign finance reform. You would think Mr. Black would be outraged by this practice, but it does not yet appear on his radar.

However, limiting campaign contributions to "citizens" within that local district or State would be a major hurtle to the way the DFL have been winning elections. What about the use of union money, Messinger money, Hollywood money, and big education money? Spreading the huge amount of union money and Messinger money around to various key districts is a major factor in winning elections. The Messinger money basically saved the DFL from losing both houses. Limiting contributions to individual residents of local districts will never pass.

The constitutional way is unlimited contributions - from anyone - with full reporting.

Your logic may work for

Your logic may work for funding Mayor McCheese in Podunk, KS, but really doesn't apply to portions of government that affect a wider geographic area than the sweep of a dog-catcher's net.

But hey, talk to those Koch boys about that idea. Let us know how that goes.

DT So if:

it is a non-profit that is or is not ok? Can Catholic Charities accept foreign donations? Meaning since many of these new political oriented groups are "non-profits" and are focused on "Education" (In my world that means lets make more people stupid) its OK to fund them with foreign $ yes?

"It;s been alleged" Right up

"It;s been alleged" Right up there with "Some people say"

Yeah

Watch out for those alligators.

Frightening, yes! but hopeless?

I agree with Gary Hart's assessment about the 2016 presidential race. We should be frightened. Dynastic politics are a visible manifestation of this plutocracy.

But what to do? Reversing this trend looks hopeless. The only hope is that one or two of those members on the US Supreme Court who voted for Citizen's United or some previous ruling come to their senses about what a terrible blunder the Court made equating money with speech and vote to overrule those decisions based on that premise. I'm doubting that will happen anytime soon.

Shadow Campaign

Is the Bush set up ethically different than the enormous amount of money that the Clinton foundation has been taking in? If a company pays Hillary Clinton $300k for an hour of her extensive business acumen, is that much different than a campaign donation? Even more worrying is the foreign money that came in while she was Secretary of State. If money = influence, then that's extremely worrying.
I ask because I don't seem to hear much concern about this from those that are normally *very* concerned about money in politics.

hmm

The "I'm rubber, you're glue" defense works well on the playground, but in essence the question comes down to this, if all you say about the Clinton campaign is true, are you comfortable with your side using similar tactics? Because they have, and will continue to, so long as the current rules apply. For every shriek about George Soros, Hollywood, and unions there is an equal and similarly passionate cry regarding the Kochs, corporate donors, and shadowy conservative "education" foundations. The difference, as I see it anyway, is that our side wants them all gone, while your side just wants ours gone. Most likely because you can't win a campaign in many areas without massive doses of cash, but that's really a problem that won't go away given conservative rhetoric.

So, that's a no then

Matt, I'm actually not comfortable with it. If we're serious about people trying to influence politicians with money, then we need to figure out some areas like public speaking fees and benefits to family. What good are disclosure rules if you can simply buy off the spouse or a friendly non-profit. And frankly, if you can present any proof whatsoever that 'our side wants them all gone', I'd be surprised. I see plenty of faux horror about the Kochs but no concern whatsoever about influences to lefty pols. (I don't think your last statement has much support either.)

I'm skeptical that more intense campaign finance laws will actually plug these holes either. Recently they've been used more as a tool to kill smaller groups than big ones. I expect that to continue.

Well then

You don't know many liberals. Frankly I think if you polled union members they'd be fine with getting out of the political game, provided its not a unilateral disarmament.

You want my plan, its unconstitutional as all get out, and has about as much chance as Teddy Cruz winning the presidency, but here it is: Legally mandated election seasons, pick a time frame. Exclusively public financing, will need a mechanism to weed out crackpots that doesn't turn into a shadow election of course, and yes, self funding is out. Multiple, multi-candidate debates, regulated not by the media, but by an independent commission as free of party influence as is possible. Broadcast in as many mediums as possible. A ban on political advertising, can't get your point across without a smear campaign? Get a better candidate. Mandatory voting, with election day a national holiday. Universal early voting. Mandatory civics education for every grade level k-12, age appropriate of course, fund it however you want.

I'm sure I could come up with more, but this would be a good start. Anyone, any party, who truly believes in the ideals they espouse should welcome such changes. That so many, from one viewpoint, surely find my "manifesto" sheer heresy is telling with regards to what is truly at issue here.

The problem is not

money paid directly to candidates (announced or otherwise) from identifiable sources.
It's post Citizen's United (and whose Supreme Court passed that?) money given to PAC's not formally connected to candidates from unspecified sources.

Is full disclosure really unconstitutional?

I am aware and outraged that a majority of Supreme Court Justices presently lacks the common sense to realize that corruption equals dollars divided by donors, and I bitterly condemn the prevailing judicial elitism that equates money with speech. But though mere money may be permitted by our highest Court to speak, and indeed to roar, louder than most of our citizenry, I am not aware that it has gone so far as to grant money special privacy rights as well.

As I have said before, I favor the right of citizens to know who funds every widely published or broadcast ad that we are obliged to see. I favor requiring every ad to disclose immediately, in the form of a label like the Surgeon General's Warning on cigarettes, the number of paying sponsors every ad has, regardless of its content. I favor requiring the publishers and broadcasters of ads promptly to disclose the names and addresses of every paying sponsor of every ad to any reader or viewer who requests them. Finally, I favor requiring the creators of ads to collect the names and addresses of their paying sponsors, which must not be coerced or fabricated. There should be enforceable penalties for any evasion of these requirements by means of fraud.

I am requesting no more personal information from any sponsor of ads than we routinely require from citizens who vote, and indeed from citizens who sign petitions. There is nothing radical, unreasonable, or unconstitutional about my proposals. I imagine that the money power, with the co-operation of its compliant Supreme Court Justices, would indignantly crush any serious attempt to implement the modest reforms that I have proposed here. But at the same time, I believe it has not done so – yet.