Fact Finding on the New Soft Money

The Ohio State University's Daniel P. Tokaji writes that the impact of judicial deregulation on the ground is at least as important as discussions of legal doctrine.

October 27, 2014

By Daniel P. Tokaji, Charles W. Ebersold and Florence Whitcomb Ebersold Professor of Constitutional Law at The Ohio State University Moritz College of Law, and author of The New Soft Money: Outside Spending in Elections.

This entry is part of an ongoing blog series responding to an online symposium collaboration with the NYU Law Review, considering the future of money in politics in the post-Citizens United legal landscape.

The Brennan Center and the NYU Law Review should be commended for their online symposium Money in Politics 2030: Toward a New Jurisprudence. This remarkable collection of essays does much to help scholars and advocates think through the challenges inherent in rebuilding the law of campaign finance.

Valuable as it is to think about what our legal doctrine might look like in the hands of a Supreme Court less antagonistic to regulation than the current one, it’s at least as important to document what’s actually happening on the ground.  Renata Strause and I began this work in our report The New Soft Money: Outside Spending in Congressional Elections, published last summer, which examined the impact of increased campaign spending by non-candidate, non-party groups in recent years.  In years to come, it is essential that researchers dig deep into the impact that judicial deregulation is actually having on elections and governance.   Such empirical work, both qualitative and quantitative, is at least as important as developing legal theory that will ultimately withstand constitutional scrutiny.   

In researching and writing The New Soft Money, our goal was to understand the brave new world of less-regulated campaign spending by speaking with those in the best position to know:  former members of Congress, candidates, campaign staff, legislative staff, and political operatives.  These are the people most directly affected by the changes in law wrought by Citizens United v. FEC and other decisions.   We aimed to get a clear-eyed, real-world sense of what’s happening on the ground, sidestepping the divisive ideological debates that have characterized conversations about money and politics for so many years.

Perhaps the most surprising thing we found was a high degree of agreement across the political spectrum about what’s changed.  To be sure, there’s pronounced disagreement over whether these changes are desirable and over what, if anything, should be done about them.  But for the most part, the people we interviewed agreed about how the rapid increase in outside spending has affected both elections and politics.  Three points bear special emphasis. 

First, there are lots of different types of groups with lots of different agendas.  Today’s outside groups include “Shadow Parties” as Heather Gerken calls them, which were formed to do the work that political parties used to do.  Other groups are what we call “Buddy PACs,” groups formed to aid a specific candidate, although they’re not supposed to coordinate with the candidate’s campaign.  While our study focused on spending in the 2012 election, it appears that Shadow Parties and Buddy PACs are becoming even more important features of the 2014 election cycle.

Second, we found that outside spending has substantially changed campaigns.  Outside groups are doing a lot of the dirty work in contemporary congressional campaigns, allowing candidates to keep their fingerprints off negative ads.  At the same time, we found a lot of cooperation between candidates and outside groups.  Although we didn’t find conduct that would rise to the level of illegal coordination under the stringent standard set by federal law, campaigns and outside groups are finding ways to direct big donors to those who can use their material resources to influence elections.

Third, and perhaps most important, we found that the new soft money is affecting governance, although in a different way from the old soft money.  With the old soft money, which went through political parties, the main concern was access – think Lincoln Bedroom and coffee klatches during the Clinton Administration.  With the new soft money, the main issue is threats.   Candidates and elected officials worry that, if they don’t toe the line of outside groups, they’ll be hit with attack ads funded by outside groups.  Rarely are such threats explicit, but they’re still on the minds of those serving in office.  As one former member explained: “I don’t think they have to make a [direct] threat.  One, I think people are smarter than that; two, it was implied.”  The proliferation of outside groups may also worsen partisan polarization and stalemate.  As another former member put it: “No one’s saying, ‘Here’s $50 million for a good compromise.’”

In the wake of the Supreme Court’s decision in McCutcheon v. FEC, there are even more questions that deserve exploration.  By striking down aggregate contribution limits, the Supreme Court opened the door to more money coming through joint fundraising committees and party committees.  It’s an open question what effect this change will have.  Will some donors choose to use these vehicles instead of non-candidate, non-party groups?  And what effect will larger contributions to these committees have?  Will they be used to buy access, as with the old soft money?  Or will they have salutary effects like putting more power in the hands of party leadership, which has a greater incentive to tack toward the center than most outside groups?

These are just a few of the many questions that deserve exploration, as the world of campaign finance continues to evolve – or devolve – due to its deregulation by the Supreme Court.   In charting the path of future reform efforts, fact finding on the impact of these changes will be at least as important as developing new legal theories.