Handwringing and Hypocrisy Over Campaign Cash
What a life it must be, to be a modern campaign finance lawyer. Over the past few years, every day must have felt like Christmas, Hanukkah, and Halloween combined. Imagine: just as you’d finished extensively billing the politicos you helped navigate the Citizens United fight in the Supreme Court in 2009 and 2010, a lower court dropped Speech Now. Suddenly, both political parties, along with every multi-millionaire or billionaire in sight with a hankering to spend some cash, required your services in new 2010 and 2012 election landscapes.
Then, just when it seemed like everyone might have the rules figured out, and your billable-hour fees threatened to dry up, John Roberts & Friends dropped the McCutcheon decision, requiring your services yet again, for the foreseeable future. How delightful!
Yes, lawyers for both the Democratic and Republican parties are mighty busy right now devising exciting, creative ways for their clients to violate the spirit of the McCutcheon decision just enough to get away with it.
Justice John Roberts thought that eliminating aggregate caps on donations would allow donors to write more individual checks to campaigns across the country. But such a simpleton’s interpretation of the decision would present problems for both wealthy donors and parties. For donors, scouting out and writing 100 or so checks of $5,200 each for federal candidates nationwide would be something of a full-time job. Parties, on the other hand, wouldn’t have the control over their donors’ spending whims that they crave.
And so, for the parties’ lawyers, the panacea arrives in the form of what we might now call “super joint fundraising committees.” (If you come up with something catchier, do let your beloved Baffler know.) In theory, the political party groups—that is, the national committees, congressional committees, and senate campaign committees—could set up joint fundraising committees with, say, the 450 or so federal candidates’ campaigns out there. This would allow donors to then write one big check of several million dollars to the joint fundraising committee, a group run by party officials who would supposedly know how to best divvy it up.
So while the lawyers are putting that system together, the party fundraisers are working on another all-important project: offering jumbo-sized perks, swag, and access to these new potential seven-figure donors. From Kenneth P. Vogel in Politico:
Of course, getting megadonors to pony up even more cash than they already are will come at a different price—political perks. Presidential campaigns have long come up with gimmicks to woo donors, including campaign swag, branded groups for top-tier bundlers like Rangers and Pioneers, and retreats putting donors in close proximity to candidates.
In the past, a donor of this magnitude would have to choose two recipients for their largess. Now, they can offer joint events with top leaders from the House, Senate and the RNC, according to Republican insiders. These insiders estimate that there are dozens of donors looking to shell out more dough.
If you’re bored by all the mechanics, here’s a simpler version of McCutcheon‘s impact: rich people will be able to cut larger checks to the political parties in exchange for proportionally enhanced access to, and influence over, politicians.
Republicans unambiguously love this. As Politico so poetically put it, in another recent piece, “Republican Party committees are getting their groove back, thanks to John Roberts.” But what about the Dems? Well, the Democrats are being typical handwringing Democrats. They hate money in politics . . . but . . . they also kind of sort of love money in politics. See DCCC chair Rep. Steve Israel (D-NY) trying to bridge the chasm. We hate money in politics, he says, but we will love it, for now. (Emphasis added):
“We’ll play by the same rules they’re playing by,” said Rep. Steve Israel of New York, the chairman of the House Democrats’ campaign arm. “Then, when we get in the majority, we’ll pass legislation that takes money out of politics. But until then, I don’t believe in unilateral surrender.”
I’m going to go out on a limb and suggest that when House Democrats “get in the majority” (which will be . . . when exactly?), they will not, in fact, “pass legislation that takes money out of politics.” What would that legislation even be? The only statutory legislation that could even potentially make a dent is one that would enhance disclosure rules. That still wouldn’t stop megadonors like the Kochs or the Adelsons or the Steyers, though, who don’t care whether anyone knows what they’re up to.
The only other option would be some version of a constitutional amendment that separates “political spending” from the First Amendment. And that one is obviously a nonstarter—barring a campaign finance scandal on the level of Watergate, or a conservative Supreme Court justice kicking the bucket and being replaced by a liberal one so that Citizens United and McCutcheon are overturned.
No, it’s more likely that the future of campaign finance will play out according to our nation’s beloved free market forces: the waves of money pouring into political campaigns will continue to rise, until a certain point—when donors realize that they’re getting diminishing marginal returns. When they realize there’s nothing left for them to buy, only then will the cashflow plateau.