In the wake of the Supreme Court’s Citizens United decision, many groups, from independent political action committees to the Republican National Committee, decided to test the waters and file cases against the Federal Elections Commission arguing that they, too, should enjoy the ability to solicit unlimited donations for spending on specific, non-coordinated campaign activities. In the case of the RNC, the group sought to reverse the longstanding “soft money” ban in McCain-Feingold campaign finance legislation that prevented the parties from raising unlimited sums of money for “party building” and other activities not directly related to elections. While the challenge failed, the three-judge panel that ruled against the RNC did express worry about the implications of a growing divide between the fundraising capacities of outside groups and the traditional party committees.
[Economy1] “Under current law,” the panel wrote in a footnote to its opinion, “outside groups — unlike candidates and political parties — may receive unlimited donations both to advocate in favor of federal candidates and to sponsor issue ads. We recognize the RNC’s concern about this disparity, which, it argues, discriminates against the national political parties in political and legislative debates. But that is an argument for the Supreme Court or Congress.”
In the absence of any such intervention in Congress, however, that potential disparity is looking increasingly like a reality. After countless election cycles in which the traditional party committees — the RNC, the National Republican Congressional Committee (NRCC), the National Republican Senatorial Committee (NRSC) and their Democratic counterparts — dominated the landscape of independent expenditures on behalf of candidates, they are being substantially outgunned this time around by a nexus of outside spending outfits that represent a variety of special interests. According to data compiled in mid-October, 59 percent of all independent expenditures are coming from non-party-aligned groups — a substantial reversal from the previous midterm election cycle in 2006, when party committees accounted for 82 percent of all spending on such ads.
This election cycle, the bulk of independent expenditures — particularly among conservative groups — have in many ways mimicked the former role of the now-enfeebled RNC. As of Oct. 20, conservative outside groups have combined to spend over $99 million on ads to support Republicans and attack Democrats, more than twice as much as the NRSC and the NRCC. And the biggest conservative non-party players — like American Crossroads, Crossroads GPS, the 60-Plus Association, and Americans for Job Security — are linked both to each other and the Bush-era GOP by operatives such as Bush advisers Karl Rove and Ed Gillespie, who informally advise and raise funds for the groups.
Election experts and campaign lawyers argue that the changed landscape has broad implications for the future of how elections are fought and won. Fueled by the anonymity afforded by the tax status of many outside groups on one side and the laws enforcing tight fundraising limits for the parties on the other, the shift in the landscape threatens to weaken the party committees’ ability to enforce discipline over the messaging it would like to adopt and the candidates it might want to run in different races around the country. Meanwhile, the shadowy and transient nature of many new groups entering the scene has the potential to usher in a decidedly more reckless era of campaign spending, in which outside spending entities that lack the accountability and reputational considerations of the national parties continue to seize a more prominent role in the national discourse.
When the McCain-Feingold campaign finance law passed in 2002, it drew praise from reform groups as a way to limit the influence of money in elections. Now, however, many admit that after lax enforcement by regulatory agencies and court rulings like Citizens United, McCain-Feingold ultimately just caused that money to migrate to groups outside the umbrella of the traditional parties. Following the law’s passage, new independent groups began exploiting various sections of the tax code in earnest to serve as an outlet for the soft-money political contributions that previously made their way to the national party coffers.
“The soft money ban, no question,” said Caleb Burns, a partner at Wiley Rein, a law firm that specializes in election law, in response to a question about the cause of the declining influence of the party committees. “You can point right to that and the congressional testimony where the rise of independent third-party groups was predicted on the floor of the U.S. Congress.” Some groups opposed the bill’s basic principle of limiting any form of campaign spending, but to others, said Burns, “it was a policy objection among people who feared we’re going to legislate away the power of political parties. I don’t have a judgment as to whether the RNC is any less powerful in relation to American Crossroads or whomever, but by hamstringing the parties in terms of the money they can raise for similar activity, that can’t not be detrimental.”
The party committees aren’t in danger of disappearing anytime soon — the Democratic Congressional Campaign Committee, Democratic Senatorial Campaign Committee, NRSC and NRCC are all still among the top ten groups makings independent expenditures — but experts note that their decline in relative importance in funding races could affect the bridging role they often play in crafting a common message among different interest groups in the parties.
“In coming up with a platform, in our country the parties tend to be umbrella groups that prevent splintering among allies, like social and fiscal conservatives in the Republican Party, or labor unions and ethnic minorities in the Democratic Party,” said Loyola Law School professor Rick Hasen, an elections law expert. “If parties were weaker, I think that you could potentially see some shift in the two-party system, but I don’t think it would ever come to that because the people who control the rules are also a part of the parties.”
But even if the two-party system remains intact, there is evidence that the new campaign finance landscape has already come to the aid of outside candidates who were, at times, opposed by party leadership. “I think you’re seeing a perfect example on the right with the rise of the Tea Party,” said Burns.
Indeed, in many low-turnout primaries across the country, outside spending groups like the Club for Growth and the Tea Party Express were able to leverage conservative anger into upset primary victories for hyper-conservative candidates through large, last-minute infusions of cash in states like Kentucky, Alaska and Delaware. And while the Republican Party has temporarily put its internecine conflicts on hold in an effort to win majorities in Congress, the party’s divisions following the election could quickly be magnified once again by the outside spending outfits that have risen to support the different factions.
“Republicans don’t really have that consensus on where to go and who’s in charge right now,” said Paul Blumenthal, who studies political spending at the Sunlight Foundation, which advocates for greater transparency in government. “Where do they line up in the Republican [presidential] primary? How do they go after each other? That’s the next story.”
And while most outside spending efforts in the current general election cycle are informally acknowledged as a sort of auxiliary wing of the Republican and Democratic parties, there’s no guarantee that this will remain the case in elections to come.
“What we’ve seen up till now is the Republican leadership in exile control the party and decide who can get elected and who can’t, but it’s conceivable another group of people or corporations not in Republican leadership could do the same thing,” said Blumenthal. “While we haven’t directly seen that in many cases, there have been some groups, like [Alaskans Standing Together] running ads for Lisa Murkowski, that are made up entirely of corporations. This is just the first instance where such a landscape exists and I’m sure it will continue to surprise us.”
As to whether this infusion of outside cash at the expense of the parties’ ability to enforce discipline represents a positive or negative trend for policy debates — and democratic discourse in general — it’s simply too soon to tell. On one level, said Burns, “as much as one might disagree with a group’s message, you’re increasing the amount of public debate and bringing in more voices, and that’s always a net positive.”
Yet non-party actors tend to bring an element of recklessness to political contests as well. “Outside groups tend to be more negative because there’s less reputational costs for doing so,” said Hasen. “If the Republican Party runs an ad that’s really negative, it could hurt the party brand, but a group like Swift Boat Veterans for Truth is gone by the next election cycle.”
Analyses of the nature of ads during the current election cycle by the Wesleyan Media Project bear these predictions out, at least in part. While the overall percentage of negative ads isn’t up significantly over the 2008 cycle, the Project concludes that “one effect of increased interest group activity is that outside groups are increasingly becoming the source of negativity.”
One in every three attack ads in Senate races, according to the study, is brought by an interest group — a rate that’s up about 7 percentage points from 2008. A growing division of campaign labor has emerged, in other words, in which candidates in many races — most notably Republican Senate candidate Ken Buck in Colorado — pledge to run clean campaigns while relying on outside spending outfits to perform their dirty work for them.
“Campaign financing tends to be dynamic,” said Hasen. “After every election cycle there’s often a response.” But if recent trends continue and Congress doesn’t act, it’s possible the traditional party committees could eventually find themselves in an unfamiliar place — just one special interest group among many.