Tag Archives: Campaign finance

The Buckley of Buckley v. Valeo Dies

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Washington Post obituary.

“In political circles, Mr. Buckley was perhaps best remembered as the lead plaintiff in a landmark campaign finance lawsuit — Buckley v. Valeo — that in 1976 unraveled part of the post-Watergate regulation of political money. That ruling set the basis for a chain of court decisions, including Citizens United v. Federal Election Commission in 2010, that embraced the concept that money is equal to speech.

“Trevor Potter, a former FEC commissioner and campaign finance reform advocate, has called the Buckley decision ‘the key case in this area in our lifetimes’ because it permitted unlimited independent political spending.

Mr. Buckley’s role in the case stemmed from his successful third-party campaign for a Senate seat, and his belief that proposed spending and contribution limits would ‘squeeze out the ability of challengers to come in and confront the political establishment.’”

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“DeSantis Allies Reveal Debate Strategy”

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N.Y. Times. Is there a campaign finance law angle here, given coordination rules? From the article:

“The New York Times was alerted to the existence of the documents by a person not connected to the DeSantis campaign or the super PAC. After The Times reached out to Never Back Down for comment on Thursday, the group removed from the website a key memo summarizing the suggested strategy for the debate.

“Super PACs are barred by law from strategizing in private with political campaigns. To avoid running afoul of those rules, it is not unusual for the outside groups to post polling documents in the open, albeit in an obscure corner of the internet where insiders know to look.

“Posting such documents online is risky — the news media or rivals can discover them, and the advice can prove embarrassing. But super PACs often decide the risk is justified to convey what they consider crucial nonpublic information to the candidate without violating the law.

“But it is unusual, as appears to be the case, for a super PAC, or a consulting firm working for it, to post documents on its own website — and in such expansive detail, down to the exact estimate of turnout in the Iowa caucuses (“now 216,561”), and including one New Hampshire poll with more than 400 pages of detailed findings.”

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“2021 CPA-Zicklin Index Finds Companies Tightening Oversight of Political Spending”

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Center for Political Accountability and the Zicklin Center for Business Ethics Research, The Wharton School.

The report finds that U.S. companies are adapting to hyper-polarization and the threats to democracy by expanding board oversight of potentially controversial political spending. The report champions voluntary disclosure practices, while acknowledging the prospect that Congress may soon eliminate the rider that has barred the U.S. Securities and Exchange Commission from considering a rule mandating disclosure of political spending
by public companies.

“There is a documented history of significant progress toward disclosure and accountability that, over the course of a decade, could not be accomplished with the formalities of laws and regulation.”

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The Future of the Party and Campaign Finance — A Response to Bob Bauer

campaign finance, campaigns, election law and constitutional law, guest blogging election law scholarship, political parties,

(with Joey Fishkin, University of Texas Law School)

Bob Bauer just offered a thoughtful and engaging commentary on our work and a new report by the Brennan Center, both focused on the relationship between the political parties and campaign finance. We agree with part of Bob’s post and think the rest is plausible—and who knows, he might even be right.

An outsider might find it strange that we’d find a post that is nominally a challenge to our work to be so convincing. But the truth is that none of us can make dependable predictions in the highly volatile world of politics these days. We’re in uncharted territory. For instance, these days no one can even confidently identify which candidate the once-predictable Republican primary electorate is going to choose as a standard bearer—in part because the old rule, which was that the winner will be the establishment candidate with all the hard-money donors, no longer seems to be the rule. Things are changing more quickly than anyone anticipated, and we’re all struggling just to keep up with the latest innovations of this campaign season.

The debate between Bob and us centers on a simple question: what happens if we fund the formal parties in the same way we fund the shadow parties (the SupertPACs and 501(c)(4) and (c)(6) organizations)? Our worry is that if the formal parties’ financing is identical to that of the shadow parties’, this will gradually transform the formal parties into institutions that look more like the shadow parties—hierarchical, almost entirely beholden to big donors—thus seriously eroding what remains of a reasonably pluralistic party system. Bob’s worry, on the other side, is that if we don’t do something to level the playing field between the formal parties and shadow parties, the formal parties don’t have much of a future in politics.

We think Bob may overstate the differences between our positions, though that’s likely due to a failure of exposition on our part. Bob reads us as opposing all change in the way we fund parties. But we are pretty close to where Bob is on these questions. We aren’t ready to go as far as Tom Edsall and lift all restrictions. But, like Bob, we are certainly open to a more robust funding structure, especially one targeted—as the Brennan Center’s report is—at certain type of party activities. At least one of us is ready to support substantial increases in the contribution caps, and both of us favor allowing candidates and parties to work more closely together in raising and spending money. We’re just not ready to reproduce, jot for jot, the funding structure for the parties that we now have for the SuperPACs and 501(c) organizations.

It’s possible that both Bob and the two of us are right, and it’s just as possible that we all are wrong. And therein lies the dilemma for those interested in reform. The two of us are nervous about flipping the switch and letting the parties raise unlimited sums. We thus approach the problem more cautiously than Bob. He seems ready to flip the switch, at least as an experiment. We think it is better to be cautious. To mix our metaphors in an egregious fashion, it’s going to be very hard to put the genie back in the bottle. Once the parties become accustomed to unlimited fundraising, what incentive will they have to regulate themselves? And if donors become accustomed to ruling the official party organizations the way they rule their own shadow party entities, those expectations will become very hard to unwind. Even so, it’s important to give Bob’s proposal its due, and that is this: There are costs to not acting just as there are costs to acting. There are costs to doing too little as well as to doing too much. The formal parties might well wither and die if we don’t find some way to get them the funding to compete. We’re all muddling through, in other words.

Modesty is an underappreciated virtue in academic writing, and our paper had modest aims. We were under no illusions that everyone would be convinced that we were right on the prediction side; we aren’t that certain we are right ourselves. What we wanted to do was spark a different conversation about the future of the political parties, one that wasn’t confined to “strengthening” the parties but that paid attention to the crucial institutional differences between the shadow parties and the formal parties. We wanted, in short, to spark just the conversation that Bob and the Brennan Center and others are now having.

 

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Citizens United and the Future of the American Political Party

campaign finance, campaigns, election law and constitutional law, political parties, Uncategorized, ,

With Joey Fishkin, University of Texas Law School

The Brennan Center has just released a new report on the future of campaign finance. There are going to be a lot of reports like these during the next few years as the reform community wrestles with the legacy of Citizens United and tries to identify the path forward. We’ll be lucky if most of these reports are as pragmatic and intellectually serious as this one. (In the interest of full disclosure, we should note that we were both consulted during the process of writing the report). It’s worth highlighting several key moves that the report makes.

First, the report centers on the important role the political parties play in our democracy.This focus is itself good evidence of the pragmatism of the authors, Ian Vandewalker and Daniel Weiner. The political parties have long been targets of reformers’ ire and have largely been treated as agents of corruption (and obstacles to reform). But as the Brennan report recognizes, the political parties are essential to the long-term health of our democracy, and they have changed fundamentally and dramatically in ways that ought to concern us.

In focusing on political parties, the authors don’t make the mistake of equating the official parties (the GOP and the Democratic Party) with “the” party. As we’ve written elsewhere, these days “the party today is best understood as a loose coalition of diverse entities, some official and some not, organized around a popular national brand. The official party organization is part of it, but so too are independent entities—not just shadow parties, but groups likes the NRA, the teachers’ unions, and the Heritage Foundation. Officeholders are also part of this coalition, as are donors and activists. All are part of the party writ large.” That move allows the authors to track what we’ve described as the strange, seemingly contradictory status of the political parties right now. High levels of polarization and partisanship have made the parties writ large quite strong. But the official parties are weakening as they lose money, talent, and power to what we’ve called the “shadow parties.”

The Brennan report insists – again, rightly in our view – that political participation matters, and that one of the important costs associated with the decline of the official parties is that we are losing crucial sites for democratic participation and pluralist politics. Relative to the shadow parties, the official parties have many points of entry; they are more porous and more open to average voters. The shadow parties, in contrast, are designed to answer to their funders and their funders alone. As money and power shift from the official parties to the shadow parties, opportunities for participation and pluralism decline. This shift is one of the most important things happening right now in the American political system; we think the Brennan report is right to highlight it and to focus on these consequences.

While we thought that many of the proposals the Brennan Center put forward were well worth considering, we particularly welcomed the authors’ attention to the unintended consequences of one reform proposal that is popular these days: leveling the playing field between the shadow parties and the official parties by allowing the latter to raise large sums of money in the same fashion the shadow parties do. We understand the impulse behind this proposal. But the authors rightly worry that changing how the official parties are funded might also change how they are structured. We must be attentive to the risk is that the official parties won’t be the same official parties that play such a welcome role in our system but will instead look more like the shadow parties than we intend. In other words, if we allow the official parties to be funded exactly the way the shadow parties are funded, will they soon also be run the way the shadow parties are run? There’s no way to know in advance, but there are plenty of reasons why we might not want to find out.

 

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Whose party is it anyway?

campaign finance, campaigns, election law and constitutional law, political parties, Uncategorized, ,

Coauthored with Joseph Fishkin, University of Texas Law School

In yesterday’s post, we described how major functions once performed by official party organizations are migrating instead to what we call shadow parties—groups situated outside the official party apparatus, but clearly aligned with one party or the other. The Koch brothers are at the leading edge of the trend. Their fundraising network and complicated array of “outside” groups are increasingly developing the capabilities to provide most of the services one would previously have expected the official party to provide to campaigns—from fundraising networks to television ads. Now the Koch brothers are even offering a voter database with a software interface that many campaigns prefer to the RNC’s.

As we noted yesterday, some people describe this as a fight between “the party” and “outside groups,” but that frame conceals a lot of the real action. The Koch brothers are almost as deeply intertwined with the Republican Party as the RNC itself is. But there are differences. The Koch brothers represent a faction within the party, rather than the party as a whole. Their shadow party groups answer to the people who write the checks, not the rest of the party. This fight is an internal struggle for control of the party. And it’s starting to be clear who has the upper hand in that struggle. The big winners are likely to be those intra-party factions with the enormous resources necessary to rival and sometimes beat the official party at its own game.

So, a skeptic might ask, isn’t this basically a case of what Sam Issacharoff and Pam Karlan call the “hydraulics” of campaign finance reform, where money blocked from one channel (the official parties) flows through another (the shadow parties)? Yes and no. Here, when the money flows through a different channel, the party ends up with a different center of gravity. It means some voices count more inside the party than they did before—and other voices count less.

These shifts raise a fundamental question: who ought to be in control of the party, anyway? In the paper we just published, we imagine three models of who should control a party:

1. The equality model: On this model, each party member should have equal influence over the direction of the party. If you think of the party as a democratic arena, this model is analogous to one-person-one-vote.

2. The elite-driven model: On this model, the parties are not democracies; they are more like firms, competing in the broader democratic arena. In this analogy, party elites are the executives; the donors are the shareholders; and ordinary voters are like consumers who can accept or reject what the elites are selling. This model has its roots in a Schumpeterian conception of democracy.

Neither of these models, we think, is adequate—either positively or normatively. We think parties both are, and should be, both internally democratic and actors in the broader democratic arena, selling their policies to the general public. As we discuss in the paper, we think there are good reasons to depart from the equality model, while not embracing the elite-driven model either. So we propose

3. The pluralist model: This hybrid model takes into account the party’s multi-layered role in our politics. On this model, the party stands in part for ordinary voters who make up the base of the party, in part for the party elites who run it, and in part for the activists in between—the party faithful, who knock on doors and show up at rallies and caucuses and provide much of the party’s energy.

The party faithful are much more heavily involved in the party than ordinary voters, but much less influential than the Koch brothers. One major worry we have about the shift from official parties to shadow parties is that the party faithful may get squeezed out, leaving us with a politics that is more centralized and broadcast-like. This kind of politics leaves little room for the vibrant, unruly, participatory sort of democracy that is driven by large numbers of people who feel strongly about their politics but don’t have an extra few million dollars lying around.

For more see the paper. Cross-posted on the Balkinization.

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A war within the Republican party?

campaign finance, campaigns, election law and constitutional law, political parties, Uncategorized, ,

 

Coauthored with Joseph Fishkin, University of Texas Law School

A recent story perfectly embodied the central puzzle in a paper that we recently published in the Supreme Court Review. The story tells about the war between the Koch brothers and the Republican National Committee over whose database of voter information will be used in 2016. It sounds a little arcane, but voter data is the lifeblood of any campaign: who is on your side, who do you need to persuade, who is a reliable voter, and where do they live? Keeping track of all this and providing the information to campaigns is a classic function of political parties—a function that is central, as Jack points out, to what parties do in the information age. In the past this function has been carried out by the official parties. But now the Koch brothers have built a database that is easier to use and well liked by campaigns. GOP leaders, however, are nervous about having such an important campaign instrument in the control of private actors rather than the formal party structure. The story, in short, is about the war between the official parties and what we call the shadow parties – the SuperPACs and nonprofits now playing an increasingly important role in the electoral process. These days the shadow parties are doing a lot more than taking out some ads. They are taking over major functions once reserved for the official parties.

Our article begins with McCutcheon v Federal Election Commission, which struck down the FECA’s caps on how much hard money in toto one donor could give to candidates and party committees in a given year. It quickly morphs into a rumination on the future of the party system. That’s because McCutcheon can only be understood against the deep shifts taking place in American politics.

By some measures, the parties are stronger than ever. Party identity is very strong, and the Democratic Party and the Republican Party are at the height of their power. Other measures suggest that the parties are losing their grip on politics to “outside groups,” which have taken over a startling array of core party functions. But these “outside groups” are deeply and durably aligned with one party or the other. They are run by consummate party insiders. That’s why we call them shadow parties. For reasons we discuss, the shadow parties aren’t lone wolves. They are deeply intertwined with the official parties and properly understood as part of what we call the “the party writ large” – the large network of donors, activists, and organizations that constitute the party.

The explosive growth of outside groups explains why many campaign-finance supporters saw a silver lining to Shaun McCutcheon’s suit. The crude version of the “silver lining” argument suggests that McCutcheon will shore up the parties against outside spenders. The more nuanced argument—and the emerging conventional wisdom in the field—is that McCutcheon will level the playing field between the official party leaders and the shadow parties by allowing donors to pour more money into the official party structure.

We are skeptical. It’s not that the hoped-for effect won’t exist. It will. Some funds that would have flowed to outside groups will seep back into the official party structure. But we think the effect will be modest. Moreover, the crude argument—pitting “outside” funders against “the parties”—fundamentally misdiagnoses the problem. The real problem with the growth of shadow parties has less to do with the “strength” or “weakness” of the official parties relative to outside groups and more to do with who exercises power within the parties writ large. What we are witnessing is not outside spenders pulling power away from the parties but an intraparty battle for the heart and soul of the party writ large.

That’s precisely why the database story is so interesting. The Koch brothers are part of the GOP writ large. This is an internecine war. Indeed, as the story makes clear, it’s not just money that is flowing away from the official parties toward the shadow parties; it’s talent and authority. We are beginning to witness a brain drain of sorts, with some of the most important and talented players in politics being housed in the shadow parties. It’s not surprising that the Koch brothers’ shadow party has created a better campaign tool than the RNC. They are running their organization with the funding, talent, and efficiency that we typically associate with the private sector. But there is a tradeoff there, and it’s a big one: private shadow party groups are beholden only to their donors, not to the rest of the party.

Although we see this battle as an intraparty fight, its likely outcome is one that “small-d” democrats ought to find disquieting. The parties have been important sites of pluralist competition. The shift toward shadow parties threatens to flatten the party structure and inhibit pluralist politics. Money isn’t just shifting from one place to another within the party writ large; it is shifting from one type of institution to another, quite different type of institution. Compared to the official parties, the shadow parties are more hierarchical and less porous. They are closed to most and controlled by few. We are especially concerned that the shift to the shadow parties will permanently squeeze out the party faithful—the activists and highly engaged citizens who serve as a bridge between everyday citizens and political elites—and largely eliminate their already-diminished role within the party writ large.

As we’ll discuss tomorrow, the shift toward shadow parties raises important questions not just about the future of American politics, but about who ought to control political parties. We’ll turn to that normative question in the next post.

Cross-posted on Balkinization.

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The Political Thriller Published by the Moritz College of Law

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Serious empirical research rarely reads like a political thriller, but “The New Soft Money:  Outside Spending in Congressional Elections” — written by Dan Tokaji and Renata Strause* and published by Ohio State’s Moritz College of Law — is one of those rare exceptions.  Even a cynic about campaign-finance reform will find the details in this report to be hair-raising.  “The New Soft Money” doesn’t just describe how money influences campaigns and governance.  It also provides compelling, granular details about the transmission lines that have been erected between outside groups and the candidates and parties with whom they are not “coordinating.”  Many of those details will be familiar to political insiders, but they’ll be unnerving for everyone else.  The report provides compelling evidence of just how much things have changed since the early 2000s.

“The New Soft Money” offers a deep dive into the current state of outside spending.  The research is largely qualitative; Tokaji and Strause interviewed an impressive number of political insiders (candidates, political consultants, staffers, and the like) in order to find out how outside money moves through the system.  The report resembles the record amassed during the McConnell litigation, except in several respects it’s deeper and more detailed than what the Supreme Court relied on when it upheld the constitutionality of the bulk of McCain-Feingold.

This isn’t a report for true believers on either side of the issue.  Tokaji and Strause obviously have a view about reform, but they are very careful not to overstate their findings.  Reform advocates will be disappointed that the report insists that there’s no smoking gun evidence of money being traded for votes.  Those who argue that independent spending is just about individual speech rights will have to concede how profoundly outside money is shaping our politics.

You should read the report yourself, particularly the chapters detailing how outside groups “cooperate,” as Tokaji and Strause euphemistically put it, while avoiding the legal prohibitions on coordination.  I was struck both by how hidden some of these interactions are and by how open, even brazen the rest are.

Networks facilitate the hidden cooperation between candidates and outside donors.  Everyone knows everyone else in politics, and most of the “everyones” are sophisticated enough to be careful about the game they are playing on the coordination front.  As a result, as one of the interviewees said, “you hear things” even if no one from the campaign ever speaks directly to an outside group.  Other times, messages are deliberately passed by a “friend of a friend of a friend,” to quote another insider.

While much of the networking is hidden from view, political operatives also use public tools – the mechanisms and strategies that we often bless as “transparent” – to tell outside spenders how best to support a campaign.  Savvy campaign heads become “the conductor” as they signal their messaging strategy in surprisingly public ways.  Some issue press releases they know that the media won’t pick up, but outside groups will.  Others deliberately use journalists to send “smoke signals” to outsider funders.  B-roll footage (high-resolution photos and clips) are embedded into the website for outside groups to find.  Donor lists are shared before they are disclosed to the FEC in order to give outside groups a leg-up on fundraising.  Information also runs from the outside groups to the candidates.  Vote alerts and scorecards – long a tool of public-interest groups – have become mechanisms for putting pressure on politicians.  If outside groups are scoring this or that vote, politicians would be foolish not to pay attention.

Political scientists tend to prefer hard, quantitative data to the type of qualitative data found in this report, often with good reason.  But we shouldn’t underestimate the importance of Tokaji and Strause’s findings.  First, while political scientists can map networks, quantify spending, and run large regressions using big data sets, they can’t provide the granular and disturbing detail that Strause and Tokaji offer about how things actually work in practice.    Second, it helps a lot that Tokaji and Strause are both lawyers housed in an academic environment.  They bring an academics’ care to their research, but they also possess the lawyer’s keen sense of what matters to judges and why.  Perhaps that’s why this report bears a noteworthy resemblance to the record on which the Supreme Court relied in upholding McCain-Feingold (which was also prepared in large part by lawyers).  If anyone can change Justice Kennedy’s mind about the distinction he drew between “ingratiation and access,” on the one hand, and “corruption,” on the other, it’s a report like this one.  It’s hard to imagine that the world Strause and Tokaji describe looks anything like the one Justice Kennedy contemplated when he wrote Citizens United.

The truth is, the report changed my mind as well and thereby provided yet another reason why qualitative evidence matters.  I have heard countless officials tell me how much they fear the threat of outside spending, particularly during a primary.  I’ve always taken those complaints with a grain of salt.  Politicians are, after all, among the most risk-averse creatures I know, and the numbers don’t always back up their concerns (incumbents don’t lose that often, and outside spending doesn’t dominate every race).  But the hard data can be misleading.  When you read through the report, you realize pretty quickly that outside groups don’t have to take down that many incumbents or spend in that many primaries to influence politicians.    Outside groups just have to do it every now and then for their threat to be a serious one.  Those episodic interventions — plus scorecards and smoke signals and “press releases” that aren’t for the press and b-rolls tucked away on campaign websites – are all you really need to cement the ties between funders on the outside and policymakers on the inside.  Whether that’s enough to convince you that the system is in need of reform depends very much on your normative commitments.  But facts matter, too, and the facts in this report are important no matter which side of this fight you are on.

 

*In the interest of full disclosure, I should note that I like Dan and Renata immensely (I defy you to find someone in the academy who doesn’t).  I also encouraged them both to take part in this project (which turned out to be even more important than I’d thought). 

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Nondisclosure Disclosure: Giving Lawmakers an Excuse to Ignore the Hard Questions

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Authored by Heather Gerken, Wade Gibson, and Webb Lyons

On Monday, Bob Bauer offered a characteristically thoughtful and generous response to a “nondisclosure disclosure” proposal that we pitched in the Washington Post last week. The proposal was a simple one. Any advertisement funded directly or indirectly by an organization that does not disclose its donors must acknowledge that fact with a simple and truthful disclaimer: “This ad was paid for by ‘X,’ which does not disclose the identity of its donors.” By requiring organizations that do not disclose their donors to acknowledge that fact, we wrote, Congress could provide voters with a helpful shorthand and give donors an important choice: put their money into transparent organizations (like the parties or Superpacs), or fund groups that keep their donors hidden but risk running ads that may not persuade cynical voters.

The basic purpose of our proposal is to harness politics to fix politics, reducing the value of anonymous outlets and pushing money toward transparent ones. But it also solves what we call the “whack-a-mole” problem. Our proposal regulates the ad, not the organization. As we wrote in the Post, “it doesn’t repeat the mistake we’ve continually made in campaign finance: engaging in the regulatory equivalent of whack-a-mole by targeting the troublemakers du jour while leaving space for new organizations to emerge during the next campaign cycle.”

Bauer is skeptical. We take all of his points seriously and agree with many of them. We thought it might be helpful, however, to identify the main issues on which we disagree.

First, Bauer thinks that the purpose of disclosure is to “bring to the audience’s attention what they could not fairly be expected to uncover for themselves.” He agrees that it’s appropriate to disclose that “an ad was paid for by a specific organization” or that “its content was ‘approved’ by a candidate.” But, he insists, voters can figure out for themselves whether an ad is funded anonymously through an “Internet inquiry or a question put directly to the ad sponsor.”

We think the task for voters is a good deal harder than he suggests. Take a look at the websites for the “Ready for Hillary” Superpac (which does disclose its donors) and Karl Rove’s “Crossroads GPS” (which doesn’t). You certainly can’t figure out which organization discloses its donors from the sites. If you start doing Google searches, you’ll eventually figure it out because Crossroads GPS is the media’s favorite target. But for the run-of-the-mill 501(c)(4)? At the very least, you’d have to figure out it was a (c)(4) and then figure out what that means under the tax code. More importantly, a “transparent” shell organization can still be funded by organizations that fail to disclose their donors. “Americans for America” may disclose, for instance, that its funding comes from “Good People for Good” and “People for Puppies,” thus forcing voters to follow a money trail that even reporters find complex nowadays. We don’t think it’s fair to expect voters to go through that much work every time a 30-second ad flashes across the screen. Why not tell voters the simple fact of the matter? Some ads are funded anonymously. There’s no reason voters shouldn’t be able to sort between ads funded transparently and ads funded anonymously.

Bauer’s concern goes deeper. He worries that our proposal “is crafted to suggest that there is information missing that should have been supplied and is being withheld.” That might be the gloss voters put on the disclosure. But our proposal is essentially no different from the “stand by your ad” requirement. That requirement demands that the connection between the ad and a candidate is identified. Ours demands that the connection between the ad and an anonymous donor is identified. Even if Bauer is correct that our proposal has normative force, it conveys the same message as the (constitutional) “stand by your ad” requirement or, indeed, any (constitutional) requirement that certain organizations disclose their donors. Like Bauer, we think it’s acceptable to require 501(c)(4)s to disclose the names of their donors. But then surely it’s acceptable to require 501(c)(4)s to disclose the fact that their donors are anonymous. The greater includes the lesser.

Good lawyer that he is, Bauer does not merely chide us for going too far, but for not going far enough. He worries that our proposal would give legislators unable to enact disclosure requirements an easy way out. They could “resort instead to a form of shaming” with “the ‘ought’ . . . replaced by a ‘you don’t have to but really should.’”

Fair enough. This worry might have kept us up at night a few years ago. But now that Congress has proved itself incapable of enacting something as basic as disclosure requirements in the wake of the wildly unpopular Citizens United, we’d just be happy to give Congress an excuse to do something. To do anything, really. Perhaps we should take it as a warning sign that we are more cynical about politics than one of the most respected and clear-eyed campaign lawyers in the country. Or perhaps Bob is just a cheerier, more optimistic soul than any of us.

Finally, Bauer casts doubt on our “whack-a-mole” pitch. “[W]hy should Congress not have to consider on its merits each and every form of disclosure as it affects different organizations” and create separate regulations for each new organization that springs up? Bauer suggest that the “most challenging aspect of this proposal is the excuse it gives lawmakers to ignore hard questions.”

We think this is a feature of our proposal, not a bug. Political interests are shape shifters; they take new forms whenever they wish to get around a regulatory roadblock. When donors couldn’t give the parties soft money, they turned to issue ads, then 527s, then Superpacs, then 501(c)(4)’s. Congress and the FEC have shown themselves utterly incapable of keeping up. Given that the politics of the moment prevent regulators from answering Bauer’s hard question, we’re just hoping that they’ll be able to answer an easy one. Should anonymously funded ads disclose that fact? The answer should be yes.

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