After Citizens United: The Story in the States
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.