On Wednesday morning, Law Professor Daniel Tokaji and Graduate Research Fellow Renata Strause, both of Ohio State University’s Moritz College of Law, unveiled their provocatively titled report, “The New Soft Money.” The report, according to its authors, is “the most comprehensive to date on the impact of independent spending” on elections and campaigns. Despite this lofty proclamation, however, the report fails to cover much new ground, instead returning to the standard old saws of those who favor greater regulation of political speech. Among its major findings, the report concludes that organizations making independent expenditures: (1) cooperate with campaigns through media and signaling without explicitly coordinating; (2) spur public distrust and congressional polarization; and (3) influence legislation through the use of implicit threats. All of these claims, however, are not significantly supported by the evidence offered in the report.
Before exploring some of the weaknesses of “The New Soft Money,” it should first be praised for much of its substance. The report presents a clear and readable account of the history of more than 100 years of campaign finance regulation, from the Tillman Act of 1907 to April 2014’s McCutcheon decision, and it provides a helpful guide to the regulatory regime that the IRS and the FEC have set up to distinguish between the many different types of regulated organizations involved in the political process. It also does yeoman’s work compiling and documenting spending by independent organizations over the past 35 years and attempts to break down what this spending has actually accomplished.
But in examining the impact of independent spending, the report falters in two significant areas. First, it fails to capture a diverse range of perspectives. And second, it attempts to paint standard and long-standing campaign behavior and free expression of opinion as sinister or corrupt influence.
To gauge independent spending’s impact on campaigns, Tokaji and Strause take an anecdotal approach – relying on quotes from 43 interviews, only 15 of which were on the record. More worrisome than this reliance on anecdotal evidence, however, is what appears to be a clear selection bias in those willing to agree to be interviewed. Of the 15 interview subjects that agreed to go on the record, 14 were either recently defeated candidates or retired members of Congress, who stepped down specifically to avoid tough re-election bids. Tokaji and Strause understood this shortcoming in their research, and to their credit expressed that they repeatedly tried to interview a wider range of political activists, including sitting congressmen. Unfortunately, however, this attempt does not change the clear bias that emerges in their results. It is easy to see how defeated candidates might have a significantly different view of the role of independent spending. Unsurprisingly, the language that these interview subjects use (and that the report reiterates) bolsters this logical conclusion.
“The New Soft Money” transforms mundane campaign activity and the basic expression of free speech rights into seedy, undesirable behavior, through the use of ideologically tainted language. Take, for example, the report’s conclusion that independent spending “threatens” congressmen into voting in a certain manner. These “threats,” as the report makes clear, are almost always implicit – the interviewees in the study suggested they “knew” that if they voted a certain way, independent money would be spent to criticize them in their next election. Describing this behavior as “threats,” however, disguises what in reality is just public speech that disagrees with an incumbent politician’s voting decision.
To take just one hypothetical example, Senator Green of West Virginia decides to vote for a bill to give a tax subsidy to a coal mine in her district. By the logic of this report, the Sierra Club has issued an “implicit threat” against Senator Green. Why? Because the Sierra Club (an independent group) may choose to run ads in her state informing voters of her vote, and the Sierra Club’s ad may hurt Senator Green’s re-election chances. By most rational definitions, this is standard political behavior. Empowering voters with information about the decisions made by their elected officials should be seen as a positive. But for members of Congress, particularly those who have recently lost a tough election battle, such an informed electorate constitutes a threat, and the study adopts that cynical and misguided position.
The same limited perspective can be seen in many conclusions of the study, from concerns about time spent fundraising by sitting members of Congress to a loose definition of cooperation that includes the exchange of ideas through the media. So while the Tokaji and Strause study does provide some useful information, its methodological and ideological flaws leave much to be desired. The nefarious impact of “New Soft Money,” like “soft money” before it, is more an illusion than a reality.
