It’s unfortunate that the Supreme Court makes faulty assumptions about things like independent political spending when it decides cases that fundamentally undermine our democracy and the public’s faith in it. A new report on the reality of such independent spending highlights just how far the Court has missed the mark.
In 2010, the Supreme Court held in Citizens United that, unlike large contributions directly to candidates that pose a threat of corruption and can be limited, “independent” political expenditures “do not give rise to corruption or the appearance of corruption” and, therefore, cannot be limited. In earlier decisions, the court had described such expenditures as “made totally independently of the candidate and his campaign” and those “that truly are independent.” But evidence in a new report out of the Ohio State University Moritz College of Law entitled The New Soft Money: Outside Spending in Congressional Elections, by Prof. Dan Tokaji and Renata Strause, calls into question the Court’s assumption that expenditures meeting the legal definition of “independent” will in fact be “truly” and “totally” independent.
Based on a series of interviews with Members of Congress, congressional candidates, campaign managers and individuals operating so-called “independent expenditure” groups, the report reveals that much of the more than $700 million spent by non-candidate entities in the 2012 congressional elections was spent with a “high degree of cooperation between outside groups and congressional campaigns.” To be certain, the report noted that “campaign professionals and outside organizations tread carefully to avoid ‘coordination’ as defined by federal law.” In doing so, the report highlights the chasm between common sense notions of coordination and what Federal Election Commission regulations treat as coordination.
One senator, for example, told Tokaji and Strause that the whole idea that “they don’t coordinate, therefore it’s really independent is just nonsense.” A campaign operative said, “at the end of the day, it’s all just kind of a fiction—it’s just kind of a farce, the whole campaign finance non-coordination thing.”
According to the report, one of the ways campaigns cooperate with outside groups without meeting the legal definition of “coordination” includes putting campaign plans and materials such as b-roll video footage, high-resolution photographs and targeted talking points on the campaign’s website for the use of the outside group, sometimes using a hidden link on the website. According to one interviewee, independent expenditure groups’ staff have become “conditioned to check the website” of the campaigns they are trying to help. Another manner in which outside groups and candidates cooperate without “coordinating” is through candidate fundraising assistance for outside groups—sharing donor lists with the so-called “independent” groups and steering donors to such outside groups.
Sen. Jeff Flake, R-Ariz., takes a selfie with his cut-out head during the Hoops for Youth 16th annual charity basketball game held at George Washington University's Smith Center, September 8, 2014. The members of Congress team beat the lobbyist team 46-40. Buy photo here.