Complicated Times: Speech and Advocacy in a Changing Environment

I would like to speak as the emissary of an outlier among philosophically conservative private foundations.  Our organization, the Stuart Family Foundation, has consistently supported campaign finance reform along the lines of McCain-Feingold / BCRA.  This reflects the judgment and experiences of our founder, Ambassador Robert D. Stuart, Jr., who after many decades of fund-raising on behalf of the GOP, came to realize in the 1990s that the soft-money loophole had corrupted the action of the Congress and was undermining public faith in the integrity of elections.  This conviction has placed us sharply at odds with other conservative philanthropies, so I would like to talk a bit about why conservatives seem generally opposed to campaign finance reform and what might be done to bring them around, for without their support, for the foreseeable future, nothing will change for the better.

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McDonnell Case Shows Virginia Is Not Above Corruption

For many years, opponents of restrictions on the role of money in politics have held out the state of Virginia to legitimize their opposition to campaign finance reform.  A state with few restrictions on money in campaigns, not much disclosure, and few ethics laws, Virginia has been heralded by reform opponents as showing what politics at the national level could look like if the federal campaign finance laws were repealed.  The picture they painted was of patrician politicians above it all, incorruptible by plebian concerns of money, legislating for the Commonwealth on purely ideological grounds.

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McCain-Feingold’s Devastating Legacy? Let’s Take Another Look.

Last year was the 10th anniversary of the Supreme Court’s decision in McConnell v. FEC (in large part upholding the Bipartisan Campaign Reform Act of 2002 or McCain-Feingold as it’s commonly known). The Court’s recent decision in McCutcheon v. FEC (invalidating federal aggregate contribution limits), has brought a wave of commentary evaluating the shortcomings of our campaign finance system, and much of this commentary has blamed the McCain-Feingold law for creating many of these problems. The 10 year anniversary of McConnell, and this year’s McCutcheon decision, certainly provide a good moment to take stock of the legacy of McCain-Feingold, and to evaluate the state of the federal campaign finance system as a whole. However, as we do so, it is important to consider the problems that McCain-Feingold was designed to address and whether it has been successful in those goals, and not to confuse this analysis with the post-McCain-Feingold rulings by the Supreme Court that have so drastically changed the campaign finance landscape.

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Coordination and Issue Politics-It’s Still About the Money

The opposition to campaign finance reform is not monolithic. Some comes from conservatives who believe it’s really a cover to push some sort of substantive Democratic/liberal agenda. Others are fine with reducing First Amendment speech and representative democracy into mere commodities to be bought and sold, and approve of the idea that money can and should buy political power.  And some of those people are Big Money Democrats who believe the party would be better off with fewer campaign finance restrictions and less disclosure so they  could compete for wealthy special interest money to elect candidates who support socially progressive ideas, at least as long as those ideas don’t conflict with their business interests.  

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Second Circuit Tackles “Independence”

Last week in Vermont Right to Life Committee v. Sorrell, a federal appeals court, in a welcome move, finally asked the crucial question of whether a self-styled “independent” group was in fact independent.  The Supreme Court’s naïve or disingenuous decision in Citizens United struck down the federal corporate spending restrictions while at the same time assuring us that independent spending, by virtue of its independence, could not corrupt candidates.  Even accepting that proposition—however unrealistic—candidates and committees have worked tirelessly to push the envelope in terms of just how much “coordination” they could get away with under current law.  A line was finally drawn last week by the U.S. Court of Appeals for the Second Circuit.

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