Last week, The Wall Street Journal ran an editorial entitled “The Latest Speech Assault,” which celebrates a recent court ruling in Wisconsin that, for the first time, would recognize a constitutional right for unlimited spending groups like super PACs to fully coordinate their advertising with candidates, as long as the advertisements don’t expressly call for the election or defeat of a candidate. The editorial then harshly criticizes a recent Brennan Center report on such coordinated campaign spending, calling coordination rules a “new liberal target,” and “dangerous stuff.” The editorial misconstrues longstanding federal law and the Brennan Center’s report, as we explained in a letter to the editors.
The Journal’s alarm is based on a supposed new scheme by liberal groups to “target” coordination between politicians and independent groups. It doesn’t mention that coordination laws have been on the books (both federally and in state governments) for about 40 years. They became important because of a 1976 Supreme Court decision holding that the government may limit direct contributions to candidates (because they may be corrupting), but may not limit election-related spending that is done independently of candidates. So coordination laws are necessary to give contribution limits meaning — they do not make collaboration with candidates illegal, but they ensure that spending that results from such collaboration is treated as a contribution to the candidate. Otherwise, outsiders could simply pay millions of dollars to run TV ads that the candidate has produced and controlled; such spending would be “as useful to the candidate as cash,” as the Supreme Court pointed out in 2001. Laws regulating such coordination have been applied since the 1970s by the bipartisan FEC and state regulators, and were even relied upon by Wisconsin Republicans in a complaint filed against a Democrat this summer.
So, contrary to the editorial’s claims, coordination regulation is nothing new. The Brennan Center’s report did not introduce the issue, and does not call for “treating independent expenditures as a ‘contribution’ to candidates.” What is new is that spending has increased markedly since the Supreme Court’s 2010 Citizens United decision, and that spenders are increasingly engaging in spending that is not truly independent from candidates — candidates and outside groups often share employees or consultants, and sometimes candidates raise money for outside groups that support them, meaning that the groups’ independence is highly questionable.
What’s also new is the legal theory endorsed by Judge Rudolph Randa in the Wisconsin case, which held that coordinated spending cannot be treated as a contribution if it does not expressly advocate for or against a candidate. Judge Randa broke ground by ruling the same way last spring, and was reversed by a three-judge panel of the U.S. Court of Appeals for the Seventh Circuit that contained two Republican-appointed judges. Judge Frank Easterbrook, a prominent conservative jurist, explained what was already clear: “If campaigns tell potential contributors to divert money to nominally independent groups that have agreed to do the campaigns’ bidding,” the contribution limits don’t work.
The Journal takes aim at specific recommendations in the report as well — for example, it scoffs that one “‘regulatory gem’ would create ‘firewalls’ between candidates and outside groups,” which would create opportunities for regulatory harassment. This criticism reveals a clear misunderstanding of the report and the concept of firewalls in general. Firewalls are never mandated, but are optional, and are set up not between a candidate and a spender, but within an outside group or a consulting firm, so the firm’s separate parts could provide services to a candidate and an outside group without sharing information. Firewalls are generally supported by those who advocate for fewer spending restrictions, because they allow groups to serve both a candidate and a spender when they would otherwise be restricted to serving one. And we don’t have to “imagine” what would happen with firewalls — bipartisan FEC regulations already allow for them, as do several state laws.
Points of fact aside, it’s possible that even with a full understanding of the law, the Journal’s editors would still side with groups that oppose any limitations on political spending. Yet probably the most interesting argument in the editorial is that if outside spending were limited to $2,600 per contributor per election, it would “assault” freedom of association because “If like-minded people can’t pool resources to influence elections, they are essentially shut out of modern political debate.”
The Brennan Center emphatically agrees with the Journal that too many people are shut out of the modern political debate. Of course, we think that a great majority of Americans are shut out because millionaires and corporations are able to spend unlimited amounts to support their favored candidates and policies — if all those groups were limited to $2,600 in spending per election, exorbitant spending would be reduced, small-dollar contributions would matter more, and average citizens wouldn’t feel powerless in the political system.
Further, we support any policy that will encourage small donors to associate and magnify their influence. Donors may currently give $5,000 per calendar year to political groups (or an unlimited amount, if the group doesn’t donate to candidates). While the Journal thinks that such caps shut people out of the debate, its concern is over a very small group of people: under any metric, well under one tenth of one percent of Americans contribute thousands of dollars for political spending. Considering that $5,000 is about ten percent of median family income in the U.S., that’s not very surprising. So using the Journal’s logic, one could argue this means more than 99.9% percent of all Americans are already “shut out of modern political debate.”
Instead of denigrating efforts to change our political system for the better, those who seek to give more people a voice in politics should work together. Enforcing rules requiring true independence from outside groups is one way to do that, but we should also seek to promote broad participation through programs like New York City’s public financing system that matches small-dollar donations and has succeeded in encouraging more citizens to participate. And any criticism of efforts to change the system should straightforwardly address both current law and the competing interests on both sides of the debate.