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After Citizens United: The Story in the States

Published: October 9, 2014

After Citizens United: The Story In the States docu­ments in compre­hens­ive detail the trans­form­at­ive effect 2010’s Citizens United has had on state and local elec­tions across the coun­try. Big outside spend­ers are work­ing “hand-in-glove” with candid­ates, often with little or no restric­tions, giving them more power to influ­ence elec­tion outcomes than at any other period since Water­gate.

The report collects abund­ant evid­ence of state and local elec­tion prac­tice over the last four years, and concludes that weak regu­la­tion of coordin­a­tion between candid­ates and the type of “inde­pend­ent” spend­ing groups Citizens United unleashed has allowed those groups to serve as de-facto arms of candid­ate campaigns. Since inde­pend­ent groups are not subject to many campaign finance laws, includ­ing spend­ing limits, this effect­ively allows wealthy donors to circum­vent those laws alto­gether.

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Citizens United gave the green light to unfettered money in our elec­tions. But the ruling’s logic rested on a crucial assump­tion: that unlim­ited spend­ing would happen inde­pend­ent of candid­ates. The Court contin­ued to recog­nize that coordin­ated spend­ing can be corrupt­ing and there­fore is subject to reas­on­able limits.

Four years later, outside spend­ing has skyrock­eted, and the Supreme Court’s assump­tions have bumped up against the real­ity of Amer­ican polit­ics. Unlim­ited outside spend­ers are work­ing “hand in glove” with candid­ates who have every incent­ive to look after their interests if elec­ted.

This assess­ment comes not from a Wash­ing­ton watch­dog, but from a state elec­tion regu­lator, Montana’s Jonathan Motl, and it captures a national trend. While federal devel­op­ments in outside spend­ing — involving famous billion­aires and candid­ate-specific super PACs — have received wide atten­tion, that focus has obscured a remark­able shift at the state and local levels.

At this scale, it turns out, you don’t have to be a Koch brother to be a king­maker. In the past four years, outside spend­ing at the state and local levels has surged, often gener­ated by far more obscure names. Much of that spend­ing has occurred with ques­tion­able inde­pend­ence from the candid­ates who stand to bene­fit. And, across the states, a wide range of approaches to regu­lat­ing coordin­a­tion — from dated and myopic to new and imagin­at­ive — have shown the current limits and poten­tial future for deter­ring coordin­a­tion between outside spend­ers and candid­ates through­out the coun­try.

This report offers a close exam­in­a­tion of these devel­op­ments and — based on a compre­hens­ive review of widely vary­ing coordin­a­tion laws and enforce­ment records in 15 states — distills a number of gener­ally applic­able recom­mend­a­tions for the best way forward. Section One, using govern­ment records and an extens­ive cata­log of news reports from across the coun­try, paints a picture of big spend­ers and bigger spend­ing in the states. Since 2010, outside spend­ing in state elec­tions has surged. In Connecti­cut, Maine, Michigan, and Wiscon­sin — the only four states that track outside spend­ing and held compet­it­ive gubernat­orial contests in 2010, as they are doing this year — outside spend­ing through the end of this summer had shot up to 20 (Connecti­cut), 4 (Maine), 4 (Michigan), and 5 (Wiscon­sin) times its 2010 levels, the Bren­nan Center has found. Relat­ively unknown names with big ambi­tions have financed outside groups that spent heav­ily on races for state­house, mayor, and even school board. At the state level, it is possible for a single funder to domin­ate the discourse and machinery of polit­ics in a way not seen at the federal level.

Yet in contests for state or local office, the separ­a­tion between outside spend­ers and those who would take power has been some­times even more porous than has been repor­ted about federal elec­tions, as Section Two of this study will describe. Candid­ates’ trus­ted asso­ci­ates organ­ize super PACs to amass unlim­ited funds. Candid­ates fundraise for these affil­i­ated, yet unres­tric­ted, groups. Campaigns and outside groups find numer­ous ways to collab­or­ate in their messaging, and to tap a common roster of strategists and other providers. Some alli­ances have led to legal and polit­ical scan­dals, while others promp­ted only criti­cism — they may have flunked the smell test but did not seem to viol­ate any law.

Section Three of this report looks at these laws and how states have enforced them. Since Citizens United unleashed outside spend­ing in 2010, the inad­equacy of federal regu­la­tion to stop coordin­a­tion in congres­sional and pres­id­en­tial elec­tions has drawn wide notice. In search of other models — or caution­ary tales — the Bren­nan Center decided to study how other juris­dic­tions have been grap­pling with the prob­lem. We picked 15 states that seemed likely to yield the most inter­est­ing find­ings — most of them are host­ing close top-ticket contests this year, and a few have already imple­men­ted new policies designed to better stop coordin­a­tion in the super PAC age.

Our review of the states’ coordin­a­tion rules and enforce­ment histor­ies revealed a wealth of essen­tial, prac­tical point­ers for any poli­cy­maker, regu­lator, or advoc­ate contend­ing with the chal­lenges of coordin­a­tion. We summar­ize our research state by state, in order of regu­lat­ory strength, in Section Three. In most of the states, we found, laws meant to deter coordin­ated spend­ing are too ambigu­ous, narrow, or weakly enforced. These states offer import­ant lessons about the minimal compon­ents required for effect­ive regu­la­tion. Even in states without the strongest rules, however, our review showed that a robust enforce­ment approach can catch viol­a­tions. In fact, whether in strong regu­la­tion states or weak, a close read of cases — where regu­lat­ors sought to prosec­ute actual wrong­do­ing or offered candid­ates and spend­ers compli­ance advice — reveals import­ant insights into the daily real­it­ies of regu­la­tion. This report offers dozens of summar­ies of such cases.

So far, our research found, a few states — Connecti­cut, Minnesota, and Vermont — have embraced prom­ising new policies to enforce the actual inde­pend­ence of unlim­ited spend­ing. They have thought expans­ively about what polit­ical advert­ising and collab­or­a­tion really entail in today’s elec­tions, encom­passing the issue of candid­ate fundrais­ing for support­ive outside groups and other subsi­di­ary aspects in their inquir­ies. The reforms reflect percep­tions of major devel­op­ments in the past several years.

The state law analyses in Section Three provide details about these newly imple­men­ted policies. In Section Four, the report provides a glimpse of the way forward, preview­ing some reforms that are pending in other local­it­ies. Phil­adelphia and San Diego, for instance, are consid­er­ing changes to strengthen local coordin­a­tion rules, and New Mexico legis­lat­ors plan to push next year for passage of the state’s first ever coordin­a­tion law.

To be sure, as with any regu­lat­ory regime, determ­ined play­ers likely will find new ways to evade both the letter and the spirit of even strengthened coordin­a­tion rules. Just as polit­ical tactics evolve, even the best-designed system will have to evolve, too.

On a deeper level, it is import­ant to acknow­ledge that stronger coordin­a­tion regu­la­tion is far from a cure-all for the profound struc­tural prob­lems caused by the outsize influ­ence of wealthy interests in Amer­ican elec­tions. The abil­ity of the few super-rich to domin­ate polit­ics, even if not in coordin­a­tion with campaigns and not by brib­ing offi­cials outright, is a crisis for a nation that seeks to conduct truly fair elec­tions in which all citizens have an equal oppor­tun­ity to parti­cip­ate.

But the Supreme Court’s current juris­pru­dence — its theory of when govern­ments may regu­late money in polit­ics — permits only limits that target quid pro quo corrup­tion. Until that changes, our review shows that strength­en­ing coordin­a­tion rules and/or enforce­ment should make a mean­ing­ful differ­ence in protect­ing the integ­rity of our exist­ing campaign finance systems.

A tougher approach catches viol­a­tions, which can deter other poten­tially corrupt­ive arrange­ments. This deterrence is essen­tial to making exist­ing reforms and rules even moder­ately effect­ive. Coordin­a­tion regu­la­tion prevents end runs around direct contri­bu­tion limits, which are meant to minim­ize the oppor­tun­ity for quid pro quo corrup­tion. It iden­ti­fies connec­ted spend­ing that should be subject to disclos­ure, rein­for­cing laws inten­ded to make influ­ence trans­par­ent. And it helps candid­ates opt into public finan­cing without fear of unfair compet­i­tion, a reform meant to ensure more of a polit­ical voice for every­day citizens.

This report’s review of increased outside spend­ing in the high-stakes state and local arenas, recent collab­or­a­tion tactics, and states’ laws and enforce­ment approaches, provides the basis for a number of clear recom­mend­a­tions — some minimal, others more ambi­tious — for regu­lat­ing coordin­ated spend­ing more effect­ively, while preserving the consti­tu­tional free­dom of speech. Gener­ally laws treat outside spend­ing to promote a candid­ate’s elec­tion as coordin­ated — and there­fore subject to campaign contri­bu­tion limits — if it is based on “substan­tial discus­sion” between the spender and the candid­ate. But that stand­ard does not adequately capture the many ways collab­or­a­tion occurs in the current era. Recom­mend­a­tions for a modern and more effect­ive approach are discussed in greater detail at the conclu­sion of this report, and include:

  • Make laws apply to a real­istic universe of spend­ing. The weak­est laws exclude huge swaths of outside spend­ing from coordin­a­tion regu­la­tion. They cover only so-called express advocacy — commu­nic­a­tions that expli­citly ask voters to elect or defeat a partic­u­lar candid­ate — rather than includ­ing the more common form of elec­tion-season advert­ise­ment that promotes or attacks candid­ates’ stances on issues.
  • If a candid­ate raised money for a group, treat all spend­ing by that group on behalf of the candid­ate as coordin­ated.
  • Provide sens­ible “cool­ing off” peri­ods before a candid­ate’s former adviser may staff a group that is permit­ted to make unlim­ited expendit­ures to promote her elec­tion. Other­wise, any spend­ing in support of that candid­ate by a group with such staff­ing should be viewed as coordin­ated. 
  • Treat as coordin­ated any spend­ing to promote the elec­tion of a candid­ate that repro­duces mater­ial produced by the candid­ate’s campaign.
  • Treat as coordin­ated any spend­ing to promote the elec­tion of a candid­ate, when the spender uses a consult­ant who has also served the candid­ate in a posi­tion privy to related campaign inform­a­tion.
  • Publish scen­ario-based examples of what consti­tutes prohib­ited coordin­a­tion and what does not. Many juris­dic­tions provide only a basic, stat­utory defin­i­tion of coordin­a­tion, leav­ing candid­ates and spend­ers on their own to figure out what it means, for instance, to “consult or cooper­ate” and thus trig­ger penal­ties. It is useful to publish examples of prohib­ited activ­ity, in real­istic contexts.
  • Ensure adequate enforce­ment and deterrence. Even the most compre­hens­ive coordin­a­tion law will not deter viol­a­tions without adequate and sens­ible enforce­ment.
  • Allow use of fire­walls under appro­pri­ate circum­stances as evid­ence that an outside group’s spend­ing was truly inde­pend­ent. Under some circum­stances — such as when a vendor provides services to both a candid­ate and an outside group — it may be possible to mitig­ate the risk of coordin­a­tion through the vendor’s use of an adequate fire­wall to separ­ate the two streams of work. In such cases, states should allow proof of a formal, writ­ten policy, prohib­it­ing the exchange of relev­ant inform­a­tion, to be used as evid­ence that no coordin­a­tion occurred.