Law and Election Politics

The Rules of the Game

Matthew J. Streb

• Publisher: Routledge
• Year: 2013
• eBook ISBN: 9781136330179
• Topic: Politics & International Relations
• Subtopic: Politics
• Index: Politics & International Relations

Though the courts have been extremely active in interpreting the rules of the electoral game, this role is misunderstood and understudied—as, in many cases, are the rules themselves. Law and Election Politics illustrates how election laws and electoral politics are intertwined, analyzing the rules of the game and some of the most important—and most controversial—decisions the courts have made on a variety of election-related subjects.

More than a typical law book that summarizes cases, Mathew Streb has assembled an outstanding group of scholars to place electoral laws and the courts' rulings on those laws in the context of electoral politics. They comprehensively cover the range of topics important to election law—campaign finance, political parties, campaigning, redistricting, judicial elections, the Internet, voting machines, voter identification, ballot access, and direct democracy. This is an essential resource both for students of the electoral process and scholars of election law and election reform.

1
CAMPAIGN FINANCE LAW

The Changing Role of Parties and
Interest Groups

Michael M. Franz

Current campaign finance laws in the United States are a puzzle. The rules as they apply to candidates and parties are far more restrictive than the rules for anonymous interest groups, many of whom have no reporting or disclosure mandates. This incentivizes political actors to form outside groups to fund and sponsor pro-candidate messages with donations of unlimited size. It is arguably more advantageous for candidates currently to rely on wealthy friends and allies to aid independently a candidate's efforts than it is to draw on the support and expertise of the formal party organizations, whose primary purpose is exactly such support. For example, while the Democratic Party worked hard to reelect Barack Obama in 2012, his former deputy press secretary, Bill Burton, formed Priorities USA, an independent group free to raise unlimited funds from any corporation, union, or wealthy citizen. The Democratic Party is forced in contrast to raise funds from individuals and political action committees (PACs), both capped at $31,000 and $15,000 per year, respectively. Though the value of a democratic system based on “small donor contributions” is apparent and not debated or challenged here, one ponders the logic of disadvantaging parties in this obvious way. Moreover, party leaders are increasingly outsourcing some of their campaign functions and data collection to for-profit groups so as to sidestep financing barriers. We are left with what might be termed an ascendant “interest group-centered” campaign finance system.

This is not irrelevant or harmless. As Rozell, Wilcox, and Madland (2005) argue:

Although political scientists disagree strongly about whether policy messages should be shaped by the parties or by candidates, few would argue that interest groups should dominate the dialogue. When interest groups frame the issues, attack the character of candidates, and otherwise run shadow campaigns, accountability suffers. Candidates are not responsible for the claims and attacks in the advertisements, and it is more difficult to hold candidates to campaign promises when those promises are made by interest groups and not by the candidates themselves (p. 163).

There is, indeed, a long history in political science debating the value of a party-centered system. In 1942, E. E. Schattschneider argued that “political parties created democracy and …modern democracy is unthinkable save in terms of the parties” (p. 1). He championed a “party cartel” vision where leaders organized and laid out a platform and voters chose among the two major options given them, with candidates going along for the ride.

As technology developed in the second half of the twentieth century, candidates branched out on their own, using television to run campaigns increasingly independent of party bosses or platforms (Salmore and Salmore 1989). This resulted in a noted decline in the role of parties in elections. Some lamented this change, while voting for “the person, not the party” became a common rallying cry of voters. To the extent that parties adapted after the 1960s, they reinvented themselves as “service organizations” that supplied the candidates—now the center of the system—with the materials for a good campaign (i.e., money, polling, expertise; Herrnson 1988, 2000). Such adaptation occurred alongside the expansion of interest groups into the electoral realm, who leveraged candidates' need for campaign contributions to become central players.

Curiously, the dimensions of campaign finance rules in contemporary American politics are not the product of a single vision. It is a system cobbled together from (changing) congressional intent layered on regulatory interpretation and judicial revision. No one would likely design the system we have today from scratch, and it seems uncontroversial to say so. Liberal reformers want more regulation, perhaps a whole new system that “cleans” money; conservatives want no system at all.

How did we get here, however—to a system where the formal party organizations compete for attention in an increasingly crowded electioneering and issue space? What are the implications? The goal of this chapter is to review the changes in campaign finance laws as they apply to parties and interest groups and to show evidence that interest groups are growing in prominence, with no abatement in sight.

It should be noted that this chapter considers the impact on the formal party organizations. A growing literature, which will be reviewed later in the chapter, reconsiders the party as a “network” of allied groups and formal party organizations. This is insightful and likely true: The party is no longer (and may never have been) represented by the chair of the Democratic or Republican national committees. It is not the president alone, nor the presidential candidate for the opposition. It is not the leaders of the parties in Congress. It now includes labor affiliates and environmental activists for the Democrats (among others) and business groups and social issue advocates for the GOP. However, is this good? What value-added do we have with a party that may no longer have an identifiable core?

It is relatively straightforward to argue, in fact, there is real normative value in having stronger party organizations. The legacy of Schattschneider's (1942) argument looms large. Parties are well known to voters, unlike many interest groups. They have the goal of winning majority support nationwide, unlike the more particularistic policy goals of interest groups. And they can make elections easier to engage with and understand. To that effect, strong party organizations ideally pose a set of policies to the American people that stand in contrast to the other major party. Are you too busy to learn the policy positions of the dozens of candidates running for the presidency, the Senate, and the House, and are there too many interest groups vying for your attention and support? One answer is look to the party platform and pick one of the two options, with your candidate selections matching your party preference. Fostering such a reality is a controversial claim in contemporary American politics, but it is not without its attractive features.

The chapter is organized as follows. It begins with a discussion of parties and the campaign finance regulations governing their electioneering. There may be some exaggeration in what has been laid out earlier, for there is evidence that parties have consistently adapted to circumstance and are hardly lacking in resources. However, to consider parties in isolation misses the larger story. The second section builds on this point and considers the rules for outside groups as they have evolved in the last forty years. This is a story of restrictive rules that gave way in recent years, resulting in an onslaught of outside spending. The third section puts these stories together, comparing interest group activity with party adaptation. How have the formal party organizations fared in an environment of expanding group participation? What happens to these party organizations in a party redefined as a “network,” one with no obvious leading element? The chapter concludes with some consideration of reform.

Parties: Hard money, soft money

The impact of campaign finance laws on parties could be considered in three phases, which might be termed: the down-and-out phase (1970s–1980s), the central-hub phase (1990s–2002), and the adaptation phase (2004-present). These phases are likely contested both in timing and meaning, but they correspond to major changes in the way parties participated in elections. Congress passed major campaign finance reform in 1971 (the Federal Election Campaign Act) and in 1974 (with amendments to the 1971 law). The Supreme Court invalidated some of the new regime in 1976 in Buckley v. Valeo, and Congress responded soon after with further revisions to reflect the Court's mandates. These developments set up the system as it stands now.

One of the major objections of the Court in the Buckley case was Congress's attempt to impose spending limits on outside groups and individuals and on candidates' use of personal funds. The Court argued that such restrictions were infringements on First Amendment speech rights. This invalidated one of the major goals of Congress, which was an enforced limitation on the amount of money collectively spent in elections. This goal was not without some precedent, in fact. Although campaign finance laws in the early and middle part of the twentieth century were fraught with loopholes, many of the major attempts at reform focused on the limitation of money spent in an election by candidates or party committees (Corrado 2005). The Court in 1976 resolved the constitutional question surrounding these restrictions by invalidating them. Congress has never seriously considered campaign expenditure limits since.

The outcome of reform and judicial review in the 1970s put parties at an immediate disadvantage relative to outside groups and candidates. Most important, the new rules restricted parties in what they could contribute to candidates' campaigns ($5,000 per election)¹ and capped what they could spend in coordination with candidates in appealing to voters. This coordination cap was set to $10,000 for House candidates in states with more than one district and varied across states for Senate candidates depending on the voting-age population. All limits were indexed to inflation, such that in 2012, the parties could coordinate with a House candidate on up to $44,200 and with a Senate candidate from South Carolina (the median state for 2010 population) on up to $310,000. Such sums seem substantial, but consider the average expenditure of a winning House candidate in 2010 was $1.4 million, and it was $9 million for a Senate candidate.²

The most damaging element of the reform in the 1970s was a ban on additional spending by parties done without the candidate's knowledge. These are known as “independent expenditures.” This ban (affirmed by Buckley despite its opposition to spending limits for candidates, groups, and individuals), along with the contribution and coordination caps, was designed to prevent a pass-through of campaign contribution limits on candidates. That is, because the candidates could raise only limited contributions from individuals ($1,000 per person prior to 2002), Congress handcuffed parties to prevent their use as conduits for evading candidate contributions limits. Functionally, however, it treated parties as a severe form of “special interests.”³

These parameters characterized a period where parties truly were “down and out” with respect to federal elections. It also corresponds to a period where scholars noted the diminished ...

Table of contents

• Cover
• Half Title
• Full Title
• Copyright
• CONTENTS
• List of Figures
• List of Tables
• Preface and Acknowledgments
• Introduction: Linking Election Law and Electoral Politics
• 1 Campaign Finance Law: The Changing Role of Parties and Interest Groups
• 2 Public Financing of Elections: Past, Present, and Future
• 3 The Internet: The Promise of Democratization of American Politics
• 4 Voting Machines: The Question of Equal Protection
• 5 Voter Identification Laws: The Controversy over Voter Fraud
• 6 Early Voting: The Quiet Revolution in American Elections
• 7 Recounts: Elections in Overtime
• 8 Direct Democracy: Regulating the “Will of the People”
• 9 Political Parties and Primaries: The Tension between Free Association and the Right to Vote
• 10 Third Parties: How American Election Law and Institutions Cripple Third Parties
• 11 Redistricting: Racial and Partisan Issues Past and Present
• 12 Judicial Elections: Just Like Any Other Election?
• Works Cited
• Court Cases
• Contributors
• Index