It wasn't always thus. I remember the good, old days of campaign financing. Now, what I consider good, and what normal people consider good are two very different things. I spent most of my grad school days at the Institute of Governmental Studies at Berkeley. We were known, informally, as "The Institute for Bad Government," because every time some jackass came up with a "good government" reform, us killjoys at IGS would tell everyone what a horrible idea it was.
Political scientists tend to be skeptical of ambitious reform, and we, at IGS, were at the extreme end of skepticism. In an early draft of a paper about political science and campaign finance reform, Thomas Mann (of the Brookings Institution) wrote about the grad students working under the "admiring tutelage" of Nelson Polsby and Bruce Cain, who bashed all the stuff he loved (listing me!). At a panel at the APSA discussing Mann's paper, Bruce Cain then referred to us as the "evil offspring" of Nelson Polsby and Bruce Cain. In the final draft of the paper (sorry, gated...) the language softened after Bruce's snarky comment, but in the first-ever issue of Perspectives on Politics, Thomas Mann of the Brookings Institution decided to try to shunt Ray LaRaja, Todd Lochner and yours truly off to the side because he didn't like what we were saying about campaign finance reform. (I really do wish that the phrase "evil offspring" had made it into print, though.)
What was going on at the time? Mann was pushing for the passage of McCain-Feingold (the informal name for the "Bipartisan Campaign Reform Act," or, BCRA), which was among the dumber pieces of legislation I have seen. Prior to the passage of BCRA, political parties were the foci of the campaign finance universe. Campaign contribution limits to candidates were set in 1974, and not indexed to inflation, but a 1976 ruling by the Federal Election Commission (FEC) allowed parties to collect contributions in unlimited amounts as long as those contributions were only used for "party-building activities." What is a "party-building activity?" Um...
By the 1990's, parties were using those accounts (called "soft money" accounts because the money raised didn't fall under the "hard money" limits imposed by the 1974 amendments to the Federal Election Campaign Act) to pay for ads. As long as the ads didn't use the "magic words," like "vote for __," they didn't count as "express advocacy." They were "issue advocacy," and the parties were using their soft money accounts for issue advocacy under the theory that this constituted party-building. And, when was the last time you saw an ad that actually said, "vote for me!" The soft money-funded ads were no different than regular ads. Basically, the parties were collecting checks of unlimited size, and using them to fund ads that looked no different from regular campaign ads, and calling it "issue advocacy," while telling the FEC that it was all just "party-building." This was just a way for the campaign finance system to adjust to the fact that a bunch of fuckin' idiots imposed limits on campaign contributions in 1974 without indexing the limits to inflation. So, the money did what money does. It found a way around the limits.
What was the constitutional basis for this? Simple. 1976, Buckley v. Valeo. The Court ruled that restrictions on contributions are kosher because a contribution isn't really, purely speech, but a restriction on spending prevents someone from engaging in an act of speech. An ad is speech. If you stop me from running an ad, you are stopping me from engaging in an act of speech. So, spending limits, and in fact, anything that limits my ability to engage directly in that kind of act of speech, ain't kosher.
A few things here: First, this was 1976. Buckley v. Valeo, not Citizens United v. FEC. You have been told, by idiots who know jack fucking shit about the history of campaign finance law that Citizens United changed everything. Nope. Citizens United followed directly from Buckley. Second, read the fucking Constitution. There is a lot of vague stuff in it. The 9th Amendment! What the fuck is that about?! There are rights, and you aren't going to tell me what those rights are?! Seriously?! What the fuck were those people smoking?! (Oh, right...)
The 1st Amendment, though? Pretty fucking clear. "Congress shall make no law... abridging the freedom of speech." It doesn't say, "Congress shall make no law abridging the freedom of speech, unless money is involved 'cuz money is ICKY and EEEEEEEVIL!" Really, Bernie, it doesn't fucking say that. Congress shall make no law abridging the freedom of speech.
This is the point at which someone tells me that you can't yell fire in a crowded theater. Two things. First, you kind of can. There isn't a law that says you can't. What you can't do is incite a riot. The Court has rejected the principle of "prior restraint," which means that there can't be any law that deems specific speech content illegal. You can be held responsible for the consequences of what you say and do, but you cannot be prevented from speaking by a law that restricts content. Second, private property. The theater can determine what constitutes behavior that they accept on their own property, and they can kick you off for yelling fire, even if you fail to start that riot. But, there isn't a law that says you can't yell fire in a crowded theater. What you can't do is incite a riot. So, let's call bullshit on that "fire in a crowded theater" thing. This is a misunderstanding of how the law works and the nature of prior restraint. Laws based around prior restraint are unconstitutional. (And do we really have to get into the notion that yelling fire in a crowded theater is constitutionally equivalent to running a campaign ad?! Seriously? If you are making this argument, you have disqualified yourself from serious discussion anyway.)
Congress shall make no law. No law. You don't like that? Tough shit. There is vague stuff in the Constitution. This ain't vague.
What does this have to do with disclosure, though? Well, remember Buckley? At issue in Buckley was FECA 1974. Among the amendments to FECA was a requirement that every contribution over $200 be itemized and reported to the Federal Election Commission. Not everyone wanted to do that. Privacy. There could be circumstances in which you might be, not just embarrassed, but retaliated against for your campaign contributions, particularly if you are contributing to a non-mainstream candidate, or even just one not supported by people you know or with whom you work.
Imagine someone who works in an environment that supports Candidate A, but who wants to contribute to Candidate B. Doing so exposes our contributor to the possibility of retaliation because it can't be done privately. You see the possible concern... Particularly if your boss has a strong preference... When I put it that way, do you get it? Bosses fucking suck, and workplaces have no real protection, whatever the law says. Wouldn't some privacy be kind of nice? Your employer certainly doesn't respect your privacy!
In Buckley, the Court rejected the privacy argument, saying that the need for public disclosure as a check on possible corruption outweighed privacy concerns, and that there is no right to secret speech in the Constitution. While there might be a benefit to secret speech in some circumstances, the Constitution doesn't explicitly provide for it. So, the Court upheld disclosure requirements in Buckley.
Now, flash-forward to 2002. The parties are raising lots of money, and spending it, but disclosing it. Why? Because the Court had said that you can't stop the spending, and there is no constitutional right to secrecy. Me? I was totally fine with this. Better than fine. I thought this was pretty close to ideal, given all of the constraints and balances that needed to be struck. Full disclosure in a party-centered system? What's there not to like for a political scientist? On the other hand, BCRA struck me as incredibly stupid. It blocked parties from raising soft money, thereby pushing all of those dollars to independent groups (initially IRS-designated 527s), which did not disclose their donors. And, the restrictions preventing independent groups from buying ads in the immediate lead-up to an election (30 days prior to a primary and 60 days prior to a general election) were obviously going to be struck down as unconstitutional anyway because of Buckley, meaning that the only real consequence of BCRA was going to be to push the money out of the hands of parties, who disclose, and into the hands of independent groups, who don't disclose. I said it at the time, as did Bruce Cain, Nelson Polsby, Todd Lochner, Ray LaRaja, and frankly, plenty of others. I am simply honored to have been listed among that company by Tom Mann as one of the villains of the story. Sorry, "evil offspring."
After all, it turns out, we were right. After BCRA passed, the money moved from parties to 527's, the Supreme Court struck down the restrictions on independent groups' activities in Citizens United v. FEC, and now, we have no fucking clue where the money ever originates. You want to know why we have so much "dark money" in the system? John McCain and Russ Feingold. They didn't fucking listen.
I don't want to be the guy who said, "I told you so," except that I actually do want to be that guy.
I told you so!
That was a really long lead-up, though. I advertised this post as having something to do with Mitch McConnell. I just needed to explain a bunch of shit in order to get there. Passing BCRA took a really long time. It kept getting blocked in the Senate. Why? Mitch McConnell kept leading filibusters of it. (Why did it pass in 2002? Long story, involving Enron, but I'm trying not to get too sidetracked here...) His reasoning? He used to sound exactly like me on this. No restrictions, full disclosure, parties=good!
And remember how the Court struck down most of BCRA in Citizens United? That actually misses something. The first legal challenge to BCRA came right after it was signed into law. It was filed by...
... [drum roll]...
Mitch McConnell. McConnell v. FEC. The Court upheld most of BCRA then, for a variety of reasons. I could do plenty of extended posts on that, but that's not my point, particularly after I've already ranted a lot this morning and finished my coffee. My point is that when he filed McConnell v. FEC, he still sounded like an IGS political scientist. He was still a no-restrictions-full-disclosure kind of guy.
Something between then and now has changed. Back in the old days, McConnell talked about campaign finance reform like he was channeling political science research. Now? ... Not so much.
Volumes could be written on the hypocrisy of Mitch McConnell. The one truly respectable thing that he used to have going for him was that he used to sound like a political scientist on campaign finance reform. Me? I'm about as anti-goo-goo a political scientist as you will ever find. The one kind of "good government" reform that I will almost always support? Disclosure. Mitch McConnell used to support disclosure too. Or rather, he used to claim to support disclosure as a dodge.
What I'm really trying to say is... fuck Mitch McConnell.