Kolodny, Robin

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POLITICAL PARTIES' LIKELY RESPONSE TO THECONSTITUTIONAL CHALLENGES TO BCRARobin KolodnyI was not one of the people who were deposed in McConnell v.FEC' so I've been asked to discuss some of the implications of the de-cision for how the political parties might function in the future. I willfocus on the congressional arena but I'll talk about political partiesmore broadly.First, I would like to talk about what this decision says soft money,or non-federal money, can still be used for.Soft money can be used for building funds, which I'll explainshortly. It could be used to fund a hundred percent of the cost forstaff salaries. It could be used for other normal operating expenses,which I'll explain by way of anecdote in a moment. It can be raised,of course, for any other nonelectioneering activities that don't fallinto that broad category and ostensibly would not involve a mix ofhard and soft money to carry out. In sum, soft money can be used formiscellaneous activities that would free up hard money for election-eering activities. In this sense, what I think is most interesting aboutthe ruling is that it brings us back to the early 1980s. In the 1980s wediscovered soft money. The use of soft money in the 1980s remindsus of what Nate Persily mentioned on the last panel-that is whetherthe controversy is really the soft money that was the problem or is itreally the use of soft money to fund issue ads that became the prob-lem. What I really enjoyed about reading parts of this decision, asRichard Briffault talked about this morning, is how the judges gothrough the history several times describing what has evolved to causethe crisis that the Bipartisan Campaign Reform Act of 2002("BCRA") 2 was designed to fix. You have to start with the 1996 elec-tion to look at the problem of using nonfederal money to pay for is-sue ads.If we go back to the 1979 Federal Election Commission ("FEC")regulations about permitting the use of nonfederal money to be usedfor these other party-building expenses, you get back to what TonyAssociate Professor of Political Science, Temple University.251 F. Supp. 2d 176 (D.D.C.) (threejudge court), prob. juris. noted, 123 S. Ct. 2268 (2003)(mem.).2 Pub. L. No. 107-155, 116 Stat. 81 (2002).POLITICAL PARTIES' LIKELY RESPONSECoelho, who was the head of the Democratic Congressional Cam-paign Committee ("DCCC") in the early 1980s, figured out-thevalue of raising soft money to free up hard money for electioneeringexpenses. Coelho was not thinking in the early 1980s that he wouldtake those two pots of money and mix them together. He had in hisown mind, as did many other party operatives in Washington, somevery distinct ways to use those funds. Coelho pointed out that thereare significant and important party functions that do not necessarilyinvolve the direct election of (or the direct election efforts on behalfof) candidates. We focus on the reporting of activities in the thirty-and sixty-day windows before elections and we certainly know thatcandidates have to be nominated for office, but what about the timebetween the past general election and the next nomination season?In many instances you have more than a year and a half of time elaps-ing, but in between, unlike in the early part of the twentieth century,the parties don't just cease to exist. They don't lose their officespace. They don't just fire every single person that they have. Theyhave ongoing party functions. They need a place to physically oper-ate, at least some kind of skeletal staff, and a plan to articulate whatthe issue or ideological agenda is of the political parties. Coelho ar-gued that parties should not have to use hard money dedicated tofederal election activity to pay for some of these expenses, which areongoing and are essential to what the party is all about. So initially,he was famous for creating that so-called building fund (I think thisdecision will make the Democrats very happy as they construct theirnew office building because if they have a cost overrun, they can nowfind a way to go ahead and pay for it out of soft money funds). ButTony Coelho helped to create the Harriman Communications Cen-ter. Going back to our previous discussion about whether the moneyhas to go directly to a federal candidate to be perceived to be cor-rupting, I think when you put Pamela Harriman's name on that Cen-ter, there wasn't a Democratic candidate in the country who didn'tknow whom they should appreciate for its existence. The Democraticmedia center, which at the time was state of the art, was going tochange how Democrats could help their candidates vis-a-vis Republi-cans. Over time, the parties figured out what else could be shifted tothose soft money accounts, even before issue ads. Coelho was famousfor bolting furniture to the floor and arguing that office furniture,typewriters, etc., should be purchased with soft money, not with hardmoney, because items that were part of the building shouldn't beconsidered a regular election expense.One of the things that I've been looking at for the last severalyears is how the parties have been changing the way that they've usedhard money (whether or not it is mixed with soft money). In the2000 election cycle, the most dramatic case has really been the De-mocratic Senatorial Campaign Committee ("DSCC"). The break-Sept. 2003]JOURNAL OF CONSTITUTIONAL LAWdown of their operating expenses was only thirty percent hardmoney, seventy percent soft, which is a pretty large amount of theoutlays. So, it isn't just that all this soft money has traditionally beengoing to pay for issue ads. Indeed, issue ads are expensive items thatget a lot of press coverage, but it doesn't entirely explain why the par-ties were sad to see soft money go. Using soft money to offset otherexpenses like staff salaries (whose recipients usually don't complainabout what the source of their money is as long as their paychecksclear) is not likely to make headlines. There are certain aspects ofrunning a political party that aren't going to be subject to conduitcorruption in the same sort of way as issue ads or certainly they're notgoing to be affected by where the money comes from. If this decisionstands, then we would be back to the building fund scenario, at leastat the national level.Now let's move on to hard money for a moment. The three-judgepanel found the new limits on raising hard money to be constitu-tional, which is obviously a boost for the political parties because theywill be able to raise more money from individuals. The other inter-esting point is that those new hard money limits are indexed for infla-tion, which has been one of the enormous problems for the partiesand another reason why they got pushed into the soft money busi-ness. The Federal Election Campaign Act's hard dollar limits wereset in 1974 to $1000 for individuals and it has remained that same$1000 since 1974. Obviously, inflation has degraded the value ofthat $1000; raising the limit to $2000 and allowing it to be indexed toinflation will obviously be significant. The question of course iswhether Republicans and Democrats have people who will writechecks of that magnitude in equal measure. I guess the general con-sensus is that the Republicans are the ones with, as they say, the bankmanagers who will write checks of that amount and the Democratshave fewer of those midlevel income people. The Democrats them-selves say they have about the same number of rich people as the Re-publicans.The other interesting thing is that the forced choice between co-ordinated and independent expenditures up to the date of nomina-tion was struck down as unconstitutional. It was almost surprising howswiftly it was done and that there is barely a mention in a couple ofthe opinions of it at all. It seems so obvious to the judges, yet thatprovision was creating a lot of anxiety among the party committeesand probably even more anxiety, as I found out myself, at the FECabout how on earth they were going to enforce that provision. Itstated that once any political party committee-that could be a local,3 Pub. L. No. 93-443, 88 Stat. 1263 (1974).[Vol. 6:1POLITCAL PARTIES' !JKEL Y RESPONSEstate, or national party committee-made even one dollar of an in-dependent expenditure for a candidate after the date of nomination,every other party organization was bound to either make independ-ent or coordinated expenditures, as the first party organization had.The coordinated spending limit was an umbrella limit which wouldapply to every party organization in the country affiliated with a ma-jor party, so its trigger might be an issue for party organizations want-ing to spend independently. Coordinated expenditures will continueto be subject to the limit that already exists, which is indexed for in-flation. The coordinated expenditures are party expenditures. Theparties spend this money from their own checkbooks, but with theknowledge and consent of the candidate. The candidate might say tothe party "we owe so much money to our media person" or "we wouldlike you to pay for this mailing," and they can talk about it and thecheck can be written. However, the independent expenditures arethe interesting issue. They have to be paid entirely with hard money,but what this decision restores is the finding in Colorado Republican 14that political parties are allowed to spend independently of their can-didates as long as they do not coordinate with them. The partieshave not made very much use of this opportunity in the past three cy-cles (since they have legally had it). There have only been a few in-stances when they have decided to do it. The National RepublicanCongressional Committee ("NRCC") spent $1.3 million in 2002. Andin the 2000 cycle, the DCCC spent nearly $2 million, all of it in thelast six days of the election, all of it on telephone banks. The prob-lem has been that parties want to communicate with their candi-dates-it's helpful to coordinate with your candidates to help themget elected. And so having that restriction against communicationfor independent expenditures has previously stood in the way of par-ties spending independently, but without the issue ad option, theywill probably have more incentive to do it. The question about hardmoney is what will the parties do with the hard money that no longerhas to be matched with the soft money to be spent? That mix is whatthe funding of issue ads really was all about. In other research, Ifound that over time the amount of money that the parties havespent even in coordinated expenditures and certainly in contribu-tions to candidates has declined enormously as the amount of moneythat the national party organizations have transferred out to state par-ties to be mixed with soft money and spent in more favorable ways atthe state level has soared. And so the question is whether or not thathard money would go back into spending for a wider number of can-4 See Colo. Republican Fed. Campaign Comm. v. FEC, 518 U.S. 604, 619-26 (1996) (Breyer,J.) (plurality opinion).Sept. 2003]JOURNAL OF CONS TITUTIONAL LAWdidates in contributions, coordinated expenditures, and potentiallyin independent expenditures, a great untapped category.Finally, I want to talk about the big question, which is what differ-ence does any of this make in winning elections? That really is (orshould be) the central point with all discussions of campaign financereform. The first thing we know is that the national party committeeshave already had to shift toward better hard money fund-raisingtechniques. They've done that and have outdone themselves in thefirst quarter so far, but it's still not very impressive in an off year andit doesn't tell us very much. The second thing which Diana Dwyreand I guessed on in Life After Reform,5 is that we assume that the par-ties will shift towards more pre-primary activity because without theopportunity to spend on issue ads (which they have normally donefairly late in the cycle), they would have to find other ways to be effec-tive. Indeed, Roll Call had an interesting article about the NRCC'searly activity in Pennsylvania's 15th Congressional District, which isgoing to be an open seat race because the incumbent Pat Toomey hassaid he will run against Arlen Specter in the Republican primary forthe U.S. Senate.6 We see the NRCC having conferences and fund-raising events already for the person that it is choosing. It has saidthis is the individual they are backing for the Republican nominationin a place where the primary isn't scheduled for more than a year,which is extremely unusual. In the 1980s, you wouldn't even havecontemplated that national party committees would get out front in aprimary race. Part of it is because of the way interest groups have be-haved in primaries and found that early activity really helps to framethe race better than later activity.Thirdly, consider the search for self-financed candidates. SenatorJon Corzine (D-NJ), chair of the DSCC, (he being a good example ofthat) recently said that he's on the lookout for some millionaires tosee if they would be interested in running for the U.S. Senate. Thatway, more hard money is freed up for him to spend for promisingcandidates in places where they aren't independently wealthy. IfJen-nifer Steen were here, she could talk more about it, and of course themillionaire provisions were left untouched in the decision.7Fourth, I would like to mention the limited effect of issue ads oninfluencing the outcome of elections. When Diana Dwyre and I in-terview people and get them to talk about what difference it made5 Diana Dwyre & Robin Kolodny, National Political Parties After BCRA, in LIFE AFTER REFORM:WHEN THE BIPARTISAN CAMPAIGN REFORM ACT MEETS POLITICS 83 (Michael Malbin ed., 2003).6 See Lauren W. Whittington, Making a Dent in Pa.-15, ROLL CALL (Apr. 9, 2003), athttp://www.rollcall.com.7 SeeJennifer Steen, The "Millionaire's Amendment", in LIFE AFTER REFORM, supra note 5, at[Vol. 6:1POLFITCAL PARTIES' LIKELY RESPONSEthat they spent millions and millions of dollars in particular targetedraces on issue ads, they reluctantly concede that they can only countin the single digits-maybe two or three races on the House side,maybe one or two races on the Senate side-where they think thatthe issue ads could have made the difference in the outcome. Obvi-ously, with small margins in the House and the Senate, that may beall it takes. But the candidates themselves don't believe that the issueads make much difference in election outcomes. If you ask thosesame candidates if they thought that issue ad spending by the partiesmade the difference between victory and defeat, even fewer of themthan the parties claimed would acknowledge that to be the case. InDavid Magleby's studies," you can see that there are a number ofplaces where candidates have had to spend extra time and moneycampaigning against the help the parties have given them. That is,the way the parties do research and want to frame the debate and theway the candidates have done research and want to frame the debatein those races have not always been the same. What is extremely in-teresting about what's happened in the last three cycles with the po-litical parties and issue ads is that parties had been very proud of thefact that they can spend as much money in a race as a candidate canand they believe that to make them relevant. I believe that's a dan-gerous path that BCRA can rein in. With issue ads the parties look ata particular race and say this candidate doesn't know what's good forthem, we have a better idea. Should the party go on its own path totry to shape the race in a way that is decidedly different from what thecandidate wants? That's an open question, which depends on yourview of what parties should be in a system where they can no longercontrol nominations for office. I'm not sure that it's good for theparties to work that way and I'm certain that the candidates don'tthink it's very good for them. Issue ads are expensive and as we allknow from what the Brennan Center found out about this particularmedia market here in Philadelphia,9 they can help to escalate the costof everybody's ads enormously in the last couple of weeks of the elec-tion. They make the price of getting involved in a competitive race sohigh that you lower the number of truly competitive races. And insome ways it's good for the parties because it gives them a more man-ageable number of races to deal with. In 2000, the number of com-petitive races was estimated at thirty-nine. That's much easier thanSee The Center for Study of Elections and Democracy, at http://cid.byu.edu/magleby/,for a list of all the monographs edited by David Magleby and published by the Center on thistopic.9 JONATHAN S. KRASNO & DANIEL E. SELTZ, BUYING TIME: TELEVISION ADVERTISING IN THE1998 CONGRESSIONAL ELECTIONS (2000). For the Buying Time series published by the BrennanCenter for Justice and other campaign finance publications, see Brennan Center Publications,http://Nww.brennancenter.org/resources/resources books.h tml#cfr.Sept. 2003]138 JOURNAL OF CONSTITUTIONAL LAW [Vol. 6:1having 200 competitive races. But is that better for democracy?That's the question. Is that really the kind of thing that we want ifwe're talking about an exchange of ideas?Finally, there is a growing acknowledgment that the importanceof soft money may be much more about "inside the beltway politics"than it is about winning elections. There's an explosion of leadershipPACs and you don't have to be in leadership to have a leadershipPAC. There is more of an acknowledgment that to be an effectiveleader in Congress, you have to prove your ability to raise large sumsof money. That to show that you have power and influence in Wash-ington means to be able to throw an event that requires that peoplespend a lot of money to talk with you and talk with other committeechairs or other leaders, and I think that's been a dangerous thing fordemocracy that has been really internal to the Washington commu-nity and not so relevant to how elections are run.

Political Parties\u27 Likely Response to the Constitutional Challenges to BCRA

https://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=1336&amp;context=jcl

Political Parties\u27 Likely Response to the Constitutional Challenges to BCRA

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