Category Archives: campaign finance

Andrew Albright: “Opportunities for IE Reform in California Law in a Post-Citizens United World”

The following is a guest post from Andrew Albright:

In Citizens United, as we all know, the Supreme Court held that independent expenditures (IEs) cannot be a source of quid pro quo corruption so long as the persons or entities publishing the IEs spend their dollars independent of, or absent coordination with, the candidates the IEs support. This logic leaves one primary form of IE regulation largely untouched, and possibly available for strengthening: coordination laws.

Coordination laws govern the relationships between, and put limitations on, candidates and third-party entities that make IEs in support of those candidates. States across the country, as well as the Federal Elections Commission, have enacted coordination laws of varying strength.

In a new report I have authored for California Common Cause, “All Hope Is Not Lost: Effectively Regulating Independent Expenditures in a Post-Citizens United World,” I document the amount and nature of IEs in California politics, and examine the legal doctrine and public policy around coordination laws, in California, other states, and federally. The report seeks to understand best-in-field practices, identify where California falls short, and propose improvements to California’s coordination laws. The report publishes today.

“All Hope Is Not Lost” finds that, contrary to the cynicism and defeatism that has quite naturally become the norm around IEs, there may actually be some room for progress. I recommend that California take three steps to strengthen its coordination laws. First, the state can broaden its definition of “communication” under the Political Reform Act. Today, political committees can avoid direct contribution limits by airing unlimited advertisements that do not expressly call for the candidate’s election or defeat but nevertheless indirectly advocate for the candidate. Broadening the definition of “communication” would extend California’s coordination laws to cover any and all political advertisements – including so-called “issue advocacy” – that mention or depict a candidate within sixty days of an election. Maine and New York State already apply some version of this approach.

Second, California can strengthen its definition of “coordination” and afford those accused of coordination fewer opportunities to make bad faith but ultimately successful rebuttals of clear evidence of coordination. Today, California uses a series of “rebuttable presumptions” that allow the Fair Political Practices Commission (FPPC) to presume that an IE was actually a coordinated expenditure. For example, where a candidate’s spouse works for a supporting political committee, the FPPC presumes coordination. But these presumptions allow a candidate to rebut the allegation; such rebuttals often go uninvestigated and have become a weakness that has undermined effective enforcement of California’s coordination laws. In states like New York, policymakers have taken rebuttable presumptions and turned them into per se coordination scenarios, thus barring candidates from rebutting the presumption of coordination. This approach would streamline California’s laws and make FPPC regulations significantly easier to enforce.

The final opportunity for reform lies slightly outside of coordination laws. California should consider barring “general purpose” and “primarily formed” committees from making IEs. The distinction between general purpose and primarily formed committees arguably serves an important purpose. Many general purpose committees are not focused on specific elections, and instead focus on issues. Thus, applying the more onerous filing and naming requirements of primarily formed committees to general purpose committees could deter some non-election speech.

At the same time, the distinction between general purpose and primarily formed committees creates loopholes that may undermine the State’s campaign finance regulations, which the report highlights in detail. For example, in 2020, a local Santa Rosa political committee raised $500,000 from a single donor and used it in opposition to a local ballot measure. But because it was registered as “general purpose,” despite operating as “primarily formed,” the committee did not have to disclose their funders in a timely manner. Indeed, the committee only disclosed its donors and refiled as a “primarily formed” committee after a concerned citizen filed a complaint with the FPPC.

Other problems exist with allowing the same committees to make both direct contributions and IEs. Under current California law, a political committee staffer could engage a campaign in detailed conversations regarding content and strategy around a specific communication, as long as the cost of that communication is below the limit for direct contributions. Then, a different staffer of the same committee could go on to make unlimited, “uncoordinated” independent expenditures on that campaign’s behalf. This is one of many opportunities for wink-and-nod coordination that California law currently permits.

In line with states like New York and Connecticut, California can prohibit general purpose and primarily formed committees from making IEs and instead create an “independent expenditure only” committee that can make IEs on behalf of candidates, but not direct contributions to them. The upshot of this approach is that, by treating all IEs the same, it removes incentives for political spenders to exploit arcane committee classification rules to engage in coordination and evade regulations. And it eliminates some of the most obvious opportunities for wink-and-nod coordination.

Though Citizens United took many excellent policies and reform off the table, from the perspective of good government reformers, states like California can still strengthen their coordination laws to ensure that politicians cannot use third-party organizations to artfully skirt direct contribution limits. Building a stronger wall between direct contributions and IEs will help California close loopholes and strengthen enforcement of its direct contribution limits. All hope is not lost.

Andrew Albright is a joint J.D. and Master of Public Policy Candidate at the University of California, Berkeley. After graduating in May of 2024, he will spend a year working as a law clerk at the United States District Court for the Northern District of California, followed by a year working as a law clerk at the United States Court of Appeals for the Ninth Circuit. Andrew completed this report on behalf of Common Cause as his Master’s capstone at the Goldman School of Public Policy.

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ELB Book Corner: Ann Southworth: “Some Implications”

I am pleased to welcome Ann Southworth to the ELB Book Corner, author of the new book,  Big Money Unleashed: The Campaign to Deregulate Election Spending (Chicago). The discount code for ELB readers is BIGMONEY2023.  This is the final of three posts:

Here I briefly describe one theme explored in the second half of Big Money Unleashed.

As noted in my first post, opponents of campaign finance regulation borrowed and improved upon a model of constitutional change forged by civil rights and civil liberties activists in an earlier era. That model of law reform attracted substantial criticism in the Warren and Burger Court years, mostly but not exclusively from the political right. Critics argued that unelected judges and activist lawyers were exercising powers that properly belonged to the elected branches and that they were proclaiming rights not found in the Constitution, using illegitimate methods of interpretation and reasoning. As the composition of the federal judiciary changed to include more judges drawn from and vetted by Federalist Society and Heritage Foundation networks, and as conservatives created a field of legal-advocacy organizations to pursue constitutional rights claims through the courts, liberals and conservatives swapped roles in these debates. Liberals and progressives are now more often the ones crying foul and raising concerns about the legitimacy of the process, as conservatives pursue and win major rulings, some of which are antithetical to the goals of the movements that pioneered the strategies.

The story told in Big Money Unleashed demonstrates—if any such evidence were necessary—that the development of constitutional law in the U.S. does not stand apart from politics. Lawyers, advocacy groups, and political and financial patrons worked through the courts to alter what falls into the category of constitutionally protected free speech and association. As they sought to expand constitutional protection for campaign spending, they made common cause with advocates and financial backers who saw how free speech claims could be similarly useful in other policy battles—e.g., over economic regulations, union activities, consumer protection, abortion, and LGBTQ rights. An emerging conservative media ecosystem helped to disseminate these ideas about the meaning of the First Amendment. Many of the same players were also active in federal judicial nomination and confirmation battles.

Critics of the Supreme Court’s First Amendment jurisprudence, such as Jeremy Kessler and David Pozen, identify a deeply inegalitarian tendency that has become more pronounced during the Roberts Court era. They say that free-speech doctrine now operates much like the Lochner era’s Fourteenth Amendment jurisprudence, enabling powerful actors to thwart economic and social welfare regulation. Speech law has veered quite far from its origins in claims on behalf of political dissenters in the early twentieth century.

Those who hope to loosen constitutional law’s constraints on regulating money in American politics have extraordinarily difficult work ahead. The process that generated current campaign finance law involved battles over judicial appointments, but it also entailed substantial investments in legal theories, institutions, networks, coalitions, and messaging. If the doctrine now tilts too far toward a libertarian conception of the First Amendment, and if it rests on a flawed conception of responsive democracy that prioritizes responsiveness to major donors over accountability to the people, achieving a better balance will require major long-term investments like the ones that got us here.

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ELB Book Corner: Ann Southworth: “The Players and the Process”

I am pleased to welcome Ann Southworth to the ELB Book Corner, author of the new book,  Big Money Unleashed: The Campaign to Deregulate Election Spending (Chicago). The discount code for ELB readers is BIGMONEY2023.  This is the second of three posts:

I’ll turn now to the roles played by lawyers, legal advocacy groups, and political and financial patrons in the process of reshaping First Amendment law to prevent most regulation of money in politics.

My interest in this topic grew out of research for another book, Lawyers of the Right: Professionalizing the Conservative Coalition (2008), a group portrait of the lawyers active in the conservative legal movement. That book explored the role of lawyer networks in generating ideas necessary to change law, cultivating credibility for those ideas, pursuing law reform campaigns modeled on those of public interest law groups of the political left, and building litigation alliances. It also considered the challenges of managing deep differences in the policy priorities of the primary constituencies of the conservative legal movement. These constituencies mostly avoided direct conflict with one another in Supreme Court litigation during the period covered by my research, but they generally did not actively assist one another. Campaign finance regulation was an exception; organizations linked with all the major constituencies of the Republican alliance joined together on the same side. I found it puzzling that social conservatives assisted in a battle that seemed likely to benefit primarily wealthy individuals and corporations, perhaps even at the expense of the more populist elements of the Republican alliance.

The story of Big Money Unleashed begins in the 1970s, when entrepreneurial lawyers demonstrated how a policy dispute over campaign finance regulation could be transformed into a constitutional battle waged through the courts. They received support from wealthy individuals of the political left and right who wanted greater freedom to use their money in elections and from politicians who wanted that financial backing. The effort gathered momentum as opponents of regulation established specialized groups to challenge restrictions, recruited ideologically committed lawyers, and introduced and reworked ideas to unite disparate groups and constituencies (or at least the lawyers for these groups and constituencies) around the idea that regulating campaign spending amounts to censoring political expression. Lawyers generated legal theories, found sympathetic plaintiffs, and organized amicus support and media strategies. Opponents of regulation tapped into legal mobilization around abortion, guns, and Tea Party activism, as well as populist mistrust of elites, framing the effort as a fight on behalf of the little guy’s right to engage in free speech. They were attentive to signals from the justices. The ACLU and some labor groups offered partial support. The Federalist Society’s Free Speech and Election Law Practice Group served as a site for cultivating arguments and coordinating strategy.

Kentucky Senator Mitch McConnell played a central role. He led Republican opposition to campaign finance legislation, assembled teams of lawyers to challenge regulations in the courts, recruited FEC commissioners who shared his opposition to regulating campaign finance, and oversaw the appointment of federal judges who would be receptive to this deregulatory agenda (and other Republican priorities). He deployed his considerable fundraising prowess to raise money that Republican leaders could use to try to hold the fractious G.O.P. coalition together.

Big Money Unleashed is an account of the creation of constitutional doctrine that gives Mitch McConnell and other opponents of regulation confidence that they will prevail in the courts, even if legislators try to impose new restrictions on money in American politics.

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ELB Book Corner: Ann Southworth: “$peech”

I am pleased to welcome Ann Southworth to the ELB Book Corner, author of the new book,  Big Money Unleashed: The Campaign to Deregulate Election Spending (Chicago). The discount code for ELB readers is BIGMONEY2023.  This is the first of three posts:

$peech

            I am grateful to Rick Hasen for the opportunity to post about my new book, Big Money Unleashed: The Campaign to Deregulate Election Spending. My posts today, Thursday, and Friday sketch the book’s argument and some implications, using edited excerpts from the book.

Americans across party lines believe that reducing the influence of money in politics should be a top policy priority. But legislators are constrained in responding to these concerns by Supreme Court decisions finding that most campaign finance regulations violate the First Amendment. The text of the First Amendment does not mention campaign finance, of course. How then did we arrive at a constitutional understanding that impedes legislative action in this area? 

 Most ELB readers are familiar with the broad history of the doctrine. In Buckley v. Valeo (1976), the Court issued a compromise ruling on the constitutionality of election reform legislation adopted in the wake of the Watergate scandal. Buckley upheld the statute’s contribution limits but found that the law’s limits on independent expenditures violated the First Amendment’s guarantee of free speech and association. The Court ruled that the only constitutionally permissible reason to regulate campaign finance was to prevent corruption and the appearance of corruption; government could not limit money in politics to promote political equality. The justices’ votes cut across ideological and partisan lines.

For years after Buckley, the Court upheld campaign finance laws that could be construed as fighting corruption, but it has invalidated or severely limited nearly every campaign finance regulation it has considered since 2006. (Federal Election Commission v. Wisconsin Right to Life (2007), Davis v. Federal Election Commission (2008), Citizens United v. Federal Election Commission (2010), Arizona Free Enterprise Club’s Freedom PAC v. Bennett (2011), American Tradition Partnership Inc. Bullock (2012), and McCutcheon v. Federal Election Commission (2014).) The majority opinions in these sharply divided rulings treat campaign finance regulation as a dangerous form of government censorship.

What explains the sharp deregulatory turn? The most important and obvious part of the answer is about judicial appointments. The Supreme Court assumed a more hostile stance toward campaign finance laws as Republican-appointed justices vetted through the conservative legal movement gained control. Justice Samuel Alito’s arrival on the Court to replace Justice Sandra Day O’Connor gave opponents of campaign finance regulation the majority they needed to strike down these laws.

But that is not the whole story. The central claim of Big Money Unleashed is that this change in constitutional law is the result of a long-term project in which lawyers, advocacy organizations, and their political and financial patrons also played key roles. Drawing from anonymous interviews with fifty-two lawyers who participated in major cases, as well as public records and archival materials, the book explores how these actors constructed an understanding of the First Amendment that makes most campaign finance regulation vulnerable to constitutional challenge. They pursued a litigation campaign modeled on the NAACP’s strategy for attacking racial segregation. The justices participated in developing the law, of course, but so did the attorneys who devised the theories necessary to support the doctrine, the legal advocacy groups that advanced those theories, the patrons who promoted and financed these efforts, and the networks through which these actors coordinated strategy and held the Court accountable. There was nothing inevitable about how those theories, actors, and resources came together to create new law, and there was nothing inevitable about the doctrine that resulted from this effort.

As a result of this litigation campaign, claims about the meaning of the First Amendment that were novel when introduced decades ago are now firmly embedded in constitutional law. That law is a source of power for those with big money to wield in elections and for the politicians who attract support from big money players.

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“RFK Jr.’s super PAC runs a $7M ad during the Super Bowl”

Politico:

The super PAC backing Robert F. Kennedy Jr.’s presidential campaign aired a costly Super Bowl ad that didn’t just draw direct parallels between the independent candidate and his uncle, former president John F. Kennedy — it also used the exact same ad template.

The ad — seen by tens of millions of viewers — comes as Democratic concerns grow that Kennedy’s presidential run could pose a threat to President Joe Biden in critical battleground states. And it was an unusual dose of Mad Men-era political nostalgia amid the high gloss slate of expensive commercials.

The biggest difference between the ad that ran Sunday night and the JFK ad that ran in 1960 was, perhaps, the cost. The ad run by The American Values 2024 in support of Robert Kennedy Jr. ran nationally and cost the super PAC $7 million, according to an official at the committee. In 1960, that would have been a roughly $675,000 expense for the John F. Kennedy Jr. campaign, according to inflation calculators.

Shortly after the ad aired, members of the Kennedy family took to X to express fury with it.

“My cousin’s Super Bowl ad used our uncle’s faces- and my Mother’s. She would be appalled by his deadly health care views. Respect for science, vaccines, & health care equity were in her DNA,” wrote Bobby Shriver, an activist and attorney.

Robert Kennedy Jr. responded apologetically by saying that the “ad was created and aired by the American Values Super PAC without any involvement or approval from my campaign. FEC rules prohibit Super PACs from consulting with me or my staff. I love you all. God bless you.”

As of Monday morning, however, the ad remained pinned to the top of his profile page on X.

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“Trump Leads Biden in Number of Small Donors”

NYT:

Former President Donald J. Trump was trailing President Biden in overall campaign cash on hand at the end of 2023, but he dominated fund-raising last year by at least one critical measure: his number of small donors. An analysis of Federal Election Commission data by The New York Times shows that about 668,000 donors gave less than $200 to Mr. Trump, compared with 564,000 for Mr. Biden.

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“Municipal campaign spending in California shows no evidence that contribution limits increase independent expenditures”

The following is a guest post from Zoe Klingmann:

Critics of campaign finance reform have often argued that contribution limits have unintended consequences: rather than reducing the influence of large donors, they simply lead to more independent expenditures, which are less regulated and often less transparent than direct contributions to campaigns. 

A new report by California Common Cause studying a targeted sample of cities finds no evidence for this theory. The report looks at local independent expenditures before and after the passage of California State Assembly Bill 571 (2019), which set “default” contribution limits for local elections across the state. The law does not affect local governments that institute their own contribution limits, but otherwise applies a biennially-adjusted cap starting at $4,700 per election for city council, mayor, and other local positions, mirroring the limit for state legislative seats.

Due to AB 571, more than two-thirds of California cities entered the 2022 election cycle with brand-new contribution limits, where previously there had been no limits at all. To understand the impact of these new limits on independent spending, California Common Cause tracked expenditures in a group of California cities during the 2018 and 2022 elections. We focused on a sample of large- (150k+ population) and medium-sized (50k-150k population) cities that included six cities with over 150,000 residents where data was available. The average and median populations of the cities studied were approximately 152,000 and 91,000 residents respectively in 2020 and 137,000 and 86,000 residents respectively in 2010.

For each city in the sample, we matched a “control city” that already had contribution limits in effect and were not affected by AB 571. This enabled us to compare trends in spending between cities with new contribution limits and cities where there was no change in policy.

The report finds that independent expenditures changed very little among cities affected by AB 571. Political committees in the cities studied spent an average of $2,986 on independent expenditures before the passage of the law and $2,826 afterwards. At the same time, the group of cities not affected by AB 571 because they already had contribution limits actually saw increases in independent expenditures.

While the sample size of this analysis is small, these findings suggest that new local contribution limits have not led to an increase in independent expenditures among large cities in California. Further research is needed to understand whether these findings apply in different political contexts: independent expenditures may be more common in state and federal races, local races that are substantially competitive, or in jurisdictions with lower contribution limits than AB 571.

Zoe Klingmann is a policy researcher and Master of Public Policy candidate at the Goldman School of Public Policy at UC Berkeley. She has worked in public opinion research and as a staffer in the Oregon State Legislature. She completed this report as a graduate student fellow working on behalf of California Common Cause.

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“Trump’s PACs Spent Roughly $50 Million on Legal Expenses in 2023”

NYT:

Donald J. Trump piled up legal expenses in 2023 as he was indicted four times, spending approximately $50 million in donor money on legal bills and investigation-related expenses last year, according to two people briefed on the figure.

It is a staggering sum. His lone remaining rival in the 2024 Republican primary, Nikki Haley, raised roughly the same amount of money across all her committees in the last year as Mr. Trump’s political accounts spent paying the bills stemming from his various legal defenses, including lawyers for witnesses….

Mr. Trump, who has long been loath to pay lawyers himself and has a history of stiffing those who represent him, has used funds in his political action committee, known as Save America, to underwrite his legal bills. The account was originally flooded with donations that were collected during the period immediately after the 2020 election when he was making widespread and false claims of voting fraud.

But with Save America’s coffers nearly drained last year, Mr. Trump sought to refill them through a highly unusual transaction: He asked for a refund of $60 million that he had initially transferred to a different group, a pro-Trump super PAC called MAGA Inc., to support his 2024 campaign.

In addition, Mr. Trump has been directing 10 percent of donations raised online to Save America, meaning 10 cents of every dollar he has received from supporters is going to a PAC that chiefly funds his lawyers.

Mr. Trump has paid legal expenses through both Save America and a second account, called the Make America Great Again PAC, which is an outgrowth of his 2020 re-election committee. In the first half of 2023, Save America transferred $5.85 million to the Make America Great Again PAC, which spent almost all of that sum on legal and investigation-related costs.

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“Biden Super PAC Plans a Historic $250 Million Ad Blitz”

NYT:

The main Democratic super PAC supporting President Biden’s re-election bid, Future Forward, is beginning this week to reserve $250 million in advertising across the most important battleground states, a blitz that it says is the largest single purchase of political advertising by a super PAC in the nation’s history.

The ads, which are to be split between $140 million on television and $110 million on digital and streaming platforms, will start the day after the Democratic National Convention concludes in August and will run through Election Day, the super PAC said.

The ad reservation covers seven states that are seen as the main presidential battlegrounds: Arizona, Georgia, Michigan, Nevada, North Carolina, Pennsylvania and Wisconsin. The super PAC said it was reserving more than $16 million in broadcast and cable advertising in Atlanta and $12 million in the Phoenix TV markets — the biggest in the two states that Mr. Biden brought into the Democratic column in 2020 for the first time in years. It is also spending heavily in smaller markets in battleground states: $3 million each in Madison, Wis., and Reno, Nev., and $2 million in Flint, Mich.

The digital reservation includes roughly $35 million on YouTube, with more on other streaming platforms, including Hulu, Roku and Vevo, plus the streaming services of the Spanish-language giants Telemundo and Univision.

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“Recusal as Remedy: Disincentivizing Donors”

Benjamin Edelstein and Sara Benesh have written this article for State Politics & Policy Quarterly. Here is the abstract:

As judicial elections become increasingly expensive, recusal has emerged as a way to address concerns about the impartiality of judges who receive contributions from lawyers or potential litigants. While it is unclear if strict recusal rules are the best remedy for conflicts of interest created by contributions, they may disincentivize potential donors from investing in judicial campaigns by negating their potential goal of influencing decisions. We consider whether donor behavior in judicial campaigns – especially for those donors most likely to be interested in specifically currying favor with judges – responds to differences in recusal standards. Using data from 219 state supreme court races in 22 states from 2010 to 2020, we find that states with stricter recusal rules attract fewer campaign donations to judicial races, and states with more lax rules attract more overall and, most especially, for attorney donors.

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“Super PACs have broken records with their spending in Iowa”

Politico:

utside groups have poured tens of millions of dollars into Iowa to boost — or knock — the Republican presidential candidates.

Since the start of 2023, super PACs have spent more than $85 million on TV ads across the nine media markets that cover some portion of Iowa, according to a POLITICO analysis of data from AdImpact, which tracks political advertising. The groups have spent $136 million in overall independent expenditure spending in the state, according to FEC filings. That far exceeds the $32 million in outside spending in Iowa that Republicans reported to the FEC in 2016.

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