Coordination Is Corruption: an Argument for the Regulation of Coordinated Issue Advocacy Under Campaign Finance Law

• Publication year: 2017

Coordination Is Corruption: An Argument for the Regulation of Coordinated Issue Advocacy Under Campaign Finance Law

Amanda R. Schwarzenbart

COORDINATION IS CORRUPTION: AN ARGUMENT FOR THE REGULATION OF COORDINATED ISSUE ADVOCACY UNDER CAMPAIGN FINANCE LAW

Abstract

This Comment analyzes the regulability of coordinated issue advocacy. This topic was brought into the spotlight following the Wisconsin Supreme Court's July 2015 decision in State ex rel. Two Unnamed Petitioners v. Peterson, which held that coordinated issue advocacy could not be regulated under state campaign finance law. The Peterson decision is not the end of the debate, but rather the beginning.

This Comment takes a common-sense approach in arguing for the regulability of coordinated issue advocacy. This approach appeals to the experience of most Americans today, who frequently encounter campaign advertisements during elections. To bolster the common-sense approach, this Comment reviews instances of political scandal related to issue advocacy, such as those involving Senator Alan Cranston and Senator Robert Menendez. It also analyzes the federal courts' limited ventures into defining regulable campaign speech, which reinforce the government's interest in regulating coordination. This Comment further analogizes to other areas of law, such as bribery and anti-gratuity regulations, to better understand the policy concerns underlying regulable conduct by politicians.

Campaign finance law has been a source of controversy for years. Despite significant scholarship concerning campaign finance law in general, very little attention has been paid to the regulability of coordinated speech in conjunction with issue advocacy. This Comment concludes that coordinated issue advocacy should be regulable. Coordination alone is enough to lead to corruptive influence or its appearance, regardless of a communication's content.

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Introduction...........................................................................................1494

I. The Development of Campaign Finance Law..........................1498

A. The Framework and Foundation for Campaign Finance Law 1498
B. Coordinated Communications as a Subset of Contributions .. 1502

II. Wisconsin: Coordinated Issue Advocacy Cannot Be Regulated.....................................................................................1504
III. Coordination Alone Leads to Quid Pro Quo Corruption or Its Appearance........................................................................1510

A. Issue Advocacy Has Value to Candidates .............................. 1510

1. Senator Cranston in the Keating Five Scandal ................ 1510
2. The Alleged Bribery ofSenator Menendez ....................... 1512
3. Governor Walker's Alleged Conduct in Peterson............. 1513

B. Common Sense: Appropriate Campaign Finance Regulation Decreases the Public Perception of Corruption .. 1515
C. Legal Support for Regulation: Case Law Precedent and Bribery and Anti-Gratuity Laws ............................................. 1518

1. The Law and Policy Behind Regulating Bribery and Certain Gratuities............................................................. 1518
2. Case Law Precedent ......................................................... 1520

IV. Practical Concerns....................................................................1523

A. Coordinated Issue Advocacy Has Continued Value in the Super PAC Era ....................................................................... 1523
B. Regulation of Coordinated Issue Advocacy Is Appropriate in Uncontested or Noncompetitive Elections.......................... 1526
C. Lobbying Efforts Would Survive Regulation of Coordinated Issue Advocacy ....................................................................... 1528

Conclusion...............................................................................................1530

Introduction

A candidate is running for political office. The candidate advertises, but there are limits on advertising spending by the candidate's campaign. In response to these limits, the candidate suggests that campaign donors instead donate to a nonprofit supporting an issue important to the candidate. The nonprofit uses the donations to create advertisements with input from the candidate, but the advertisements do not directly solicit votes for the candidate. can the candidate continue requesting unlimited, unreported funds for the organization to create advertisements relating to the issues, without directly mentioning the candidate?

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Almost this exact scenario was presented to the Wisconsin Supreme Court in Spring 2015, in the case State ex rel. Two Unnamed Petitioners v. Peterson.¹ During a recall election, Wisconsin Governor Scott Walker allegedly requested that supporters donate to certain nonprofits supporting the Budget Repair Bill (the Bill), an especially controversial law that he passed.² The nonprofits used the funds to create advertisements supporting the Bill and Governor Walker assisted in determining the advertisements' content.³ When the Milwaukee County District Attorney initiated an investigation into the unreported funds, the nonprofits challenged the investigation on several grounds, including the argument that the state could not regulate advertisements about issues that do not mention a specific candidate. The Peterson court sided with the nonprofits, holding that speech that only mentions issues, known as issue advocacy, is unregulable, even when a candidate has input on, or coordinates, the communication.⁴

Federal campaign finance regulation is well established in the United States.⁵ Modern regulation is based on the Federal Election Campaign Act of 1971 (FECA),⁶ as amended in 1974.⁷ Proponents of regulation point to its role in ensuring both the integrity of elected government officials and the public perception of their integrity.⁸ A democratic society depends on trust in politicians, because elected officials are supposed to represent the desires of constituents.⁹ Prominent politicians becoming embroiled in political corruption scandals, such as Senator Robert Menendez of New Jersey,¹⁰ Senator Alan Cranston of California,¹¹ and Governor Rod Blagojevich of Illinois,¹² lend credence to the idea that politicians will give quid pro quos in exchange for

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monetary donations. For example, regulating campaign funding by requiring disclosure of donors and the amount of campaign funding gives the public information to either reveal improper conduct or have confidence that its politicians are not being improperly influenced.

While the government's interest in preventing both the appearance of corruption and actual corruption is strong, politicians and their donors have strong First Amendment rights to freedom of speech and association.¹³ Those interests cannot be taken lightly.¹⁴ Therefore, balancing the interest in protecting First Amendment rights with the interest in preventing corruption and its appearance determines regulable communications in campaign financing.¹⁵

In Buckley v. Valeo,¹⁶ the Supreme Court identified two important distinctions to determine the regulability of communications in campaign finance law. The first is between express advocacy and issue advocacy.¹⁷ Express advocacy involves communications which specifically reference a candidate, or which contain speech that is the "functional equivalent" of a specific reference.¹⁸ This type of advocacy is regulable.¹⁹ Issue advocacy encompasses all other communications, which usually involve communications concerning an issue rather than a specific candidate.²⁰ This type of advocacy is not regulable.²¹

The second distinction is between contributions and independent expenditures.²² One form of contributions includes coordination or collaboration between a candidate and an outside organization.²³ The clear connection between contributions and a candidate create a potential for a quid pro quo, making them regulable.²⁴ In contrast, an isolated independent expenditure involves no collaboration between a candidate and an outside organization, making it unregulable.²⁵

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Despite the significant scholarship analyzing campaign finance law, perhaps the most interesting aspect about coordination is that, until recently, it was never seriously addressed by the courts.²⁶ Buckley makes clear that truly independent expenditures, whether containing express or issue advocacy, cannot be regulated.²⁷ Regarding contributions, such as coordination, the law becomes more complicated.²⁸ Buckley expressly held that combining regulable contributions with regulable express advocacy allows for regulation of contributions for express advocacy, like coordinated express advocacy.²⁹ However, the law has not clarified whether combining regulable contributions with unregulable issue advocacy results in regulable contributions for issue advocacy, like coordinated issue advocacy.³⁰

This Comment argues that coordinated issue advocacy should be regulable. In rejecting regulation of coordinated issue advocacy, the Peterson decision was in error. Determining a communication's regulability should depend on a candidate's involvement in an exchange of money to pay for valued political communication; it should not depend on the final communication's content.

Common sense dictates that the risk for corruption or its appearance arises not only when a communication specifically mentions a candidate, but also when

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a candidate is at all involved in a communication.³¹ This notion underlies bribery and anti-gratuity statues that regulate permissible contact between candidates and their supporters.³² Furthermore, candidates value issue advocacy for policies they support, as demonstrated by political scandals involving Senator Alan Cranston, Senator Robert Menendez, and Governor Walker in Peterson.³³

This Comment proceeds in four Parts. Part I synthesizes the development...