On April 3, Robert Bauer analyzed a forthcoming article, The Coordination Fallacy, which the Brennan Center’s Benjamin Brickner highlighted in March. Written by UVA Law School Professor Michael Gilbert and student Brian Barnes, the article argues coordination rules do a poor job of preventing corruption, and therefore may be unconstitutional.
Bauer appears to agree with Gilbert and Barnes, arguing that even with tighter coordination rules (what I call rules defining indirect contributions), “independent” spenders can gather enough information about candidates’ preferred campaign strategy to orient their support accordingly. With that comes a significant risk that the candidate will provide a reward in return, meaning coordination law does not effectively deter quid pro quo corruption. Both the original Gilbert and Barnes article and Bauer’s blog post astutely assess coordination regulations as well as the value of independent and coordinated expenditures. But in my view, their assessments overstate the futility of such rules and in any event should not call into question the constitutionality of comprehensive coordination rules under the Buckley framework.
As observers of recent federal elections know, candidates often value large expenditures made in their favor by super PACs, and that value will not be eliminated completely even with airtight, well-enforced rules that completely prevent candidate-spender discussion about advertisements, ensure candidates do not raise money for super PACs, and prevent a candidate’s recent staffers from working for an outside group. Gilbert and Barnes provide a helpful analytical framework for understanding such coordinated spending and expenditures in general, assigning value to different types of spending to show that even if outside spending is not as valuable as a contribution, the ability to spend more money makes up for that difference. Factually, their conclusion is correct and cannot be seriously disputed.
The constitutionality of coordination rules
Unfortunately, Buckley and its progeny that has perpetuated the contribution-independent expenditure distinction prevents us from applying a common-sense or factual analysis of value to political spending. Certainly, a $1 million independent expenditure is almost always worth more than both a $1,000 contribution and a $10,000 expenditure that benefitted from minor candidate input. Yet Buckley has been broadly understood to hold that no independent expenditure is valuable enough that it may be limited. Thus, under this framework, a common-sense analysis of the value of various types of spending is unhelpful, because for constitutional purposes under Buckley, the value of independent spending is zero — it can never reach a point where it provides enough value to be limited (though the plurality’s comment in McCutcheon (page 25) that independence does not decrease expenditure value by 95% demonstrated that it is unlikely that a majority of the justices believe this fiction). For that reason, the fact that coordination rules do not truly decrease value enough to deter a significant amount of corruption cannot lead the Court to invalidate those rules until it overrules Buckley; rather, as I have argued separately, under Buckley’s fiction, coordination rules may (and should) treat spending as a contribution when a candidate has taken action that would indicate she perceives spending as valuable.
Taken to its logical endpoint, the argument that coordination rules may be unconstitutional because of their inefficacy would also lead to invalidation of direct contribution limits (or, alternatively, that limits on independent expenditures are necessary to justify contribution limits). Like rules limiting coordinated expenditures, rules limiting direct contributions simply require spenders to direct their spending elsewhere and increase it. This would be especially easy if existing coordination rules were narrowed or eliminated: outside spenders could collaborate closely with candidates or their employees, meaning that the value of an unlimited coordinated expenditure would be equal or almost equal to that of a direct contribution of an equal dollar amount. In that scenario, it would be difficult to argue that contribution limits were sufficiently effective to survive constitutional challenge, but coordination rules were not.
The efficacy of coordination rules
Aside from the constitutionality of coordination rules, there is significant disagreement about their efficacy. Bauer notes that outside groups can easily figure out the type of spending that a candidate would appreciate, and rightly agrees with Gilbert and Barnes that such groups can almost always provide “some value.” While coordination rules cannot prevent outside groups from learning public information and increasing the value of their message, they can ensure some level of independence that does reduce value and likely makes corruption more difficult. As Dan Tokaji and Renata Strause found after extensive interviews, candidates are often frustrated when independent spenders control the message, and outside spenders may “lack the critical information or . . . get the message wrong.” And not all campaign strategy is made public, as we were reminded when Michelle Nunn’s private campaign plan was leaked last year.
Robust coordination rules are probably even more effective and important in state and local races. Such races often lack super PACs run by sophisticated operatives that can predict a campaign’s needs and circumvent coordination rules. Without such groups, rules requiring separation between candidates and outside groups can make an even more meaningful difference: wealthy contributors with something to gain are forced to make truly independent expenditures, abide by contribution limits, or forego spending altogether.
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Most agree that Buckley’s 1976 conception of independence “makes little sense now.” And Gilbert and Barnes conclude by noting that Buckley could have permitted the government to limit spending, which would have “related much more logically to the problem of corruption.” Hopefully the Court will eventually reach that conclusion, letting governments pass comprehensive laws to reduce corruption (and freeing campaign finance attorneys from their current obligation to engage in a form of doublethink). Yet while Buckley’s distinction stands, strong coordination rules are constitutional, and they are necessary to preserve the remaining efficacy of contribution limits.