Donor thumbprints are all over our choices and our opportunities to make political choices. And Americans don’t have a lot of political options when it comes to reducing their influence—thanks to the Supreme Court (a product of their influence). This longstanding phenomenon is playing out again in the wake of last week’s election. Several big donors to the Republican Party are seeking to leverage their money to get the Party to distance itself from Donald J. Trump, after the disappointing midterm results. Whether or not these particular men succeed, we do know that there is no question donors will substantially shape how the Republican Party, and its sub-factions, align during the run up to 2024. Meanwhile, two unknown donors have gifted the DonorsTrust, one of the biggest and most influential groups on the right, in excess of $435 million. A recent article in Politico finds that “All told, DonorsTrust spent about $192 million last year and entered 2022 with roughly $1.5 billion in assets.” Although DonorsTrust, as a 501(c)(3), cannot directly spend in elections, it has used its assets to fund the Federalist Society’s successful efforts to shape the federal judiciary, including the Supreme Court, as well as the Republican Party’s redistricting efforts. Nor are donor thumbprints only evident on the right. The Democratic Party and its civic allies are the beneficiaries of Sixteen Thirty Fund’s at least $191 million.
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).