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.
Why does any of this matter? While the Court in Citizens United struck down limits on independent expenditures, the Court has for decades recognized that expenditures “coordinated with the candidate and his campaign might well have virtually the same value to the candidate as a contribution and would pose similar dangers of abuse.” In the landmark 1976 Buckley v. Valeo decision, the Supreme Court concluded that “all expenditures placed in cooperation with . . . a candidate” are contributions subject to limits. Yet the Tokaji and Strause report makes clear that hundreds of millions of dollars have been spent by outside groups since Citizens United, in cooperation with candidates, but not in compliance with the $2,600 contribution limit.
The problem lies not in the “coordination” statute passed by Congress, but in Federal Election Commission’s ineffective regulations and lax enforcement. Since 1976, the Federal Election Campaign Act has provided that “expenditures made by any person in cooperation” with a candidate “shall be considered to be a contribution to such candidate.” Yet, as Tokaji and Strause accurately report, the FEC has allowed widespread cooperation between candidates and outside groups.
It is time for the FEC to tighten up its “coordination” regulations—to bring the legal definition of coordination in better alignment with the common sense meaning of the word. For example, the FEC should prohibit candidates from fundraising for groups making “independent” expenditures in the candidate’s race. In doing so, the FEC would be following the lead of the Minnesota Campaign Finance & Public Disclosure Board, which earlier this year interpreted its state’s statute’s use of “cooperation” to include fundraising.
Until the FEC acts, the relationships between candidates and so-called “independent expenditure” groups will only grow stronger, with the unlimited corporate, union and individual funds being raised and spent by such groups posing a serious threat of corruption. The unlimited political spending unleashed by Citizens United is likely here to stay until the composition of the Supreme Court changes. But in the meantime the FEC has the obligation to ensure that the spending is “truly,” “totally” independent, as envisioned by the current Court.
Paul S. Ryan is senior counsel at the Campaign Legal Center.