Reiff: I think coordination is going to be a huge fault line here. Super PACs are going to permeate every campaign. It’s not just going to be the presidential election. It’s going to be every House race and every Senate race. When you’re setting up your exploratory committee and doing the checklist of everything you need to run for office, a Super PAC is going to be on there. Campaign manager? Check. Political director? Check. Super PAC? Check. I think there is going to be a lot more focus on the movement of personnel and the role of candidates and the agents of candidates in creating Super PACs. I think we’ll see more publicity on that and a lot of complaints filed on that issue as we go forward.
Toner: It’s why I’ve really been surprised that the groups wanting more restrictions on campaign finance haven’t litigated over the coordination rules.
Reiff: I think we’ll just have to look back in a year and see how many enforcement complaints have been filed on coordination, and then go from there.
Lenhard: There’s plenty of information on the public record about this activity. Everybody has hired their own pollsters and their own media people, and everybody feels as though they are as smart as the next guy. So these entities tend to actually operate independently. There’s another lawyer who isn’t here today who often talks about having been the lawyer for entities that were on the party side—the independent expenditure and the coordinated programs—and watching them get different polling numbers and coming up with slightly different messages and thinking, “This is so silly.” But that’s just the way it played out. People didn’t make any effort to cross those lines. We’re speculating here, but part of it may be that this isn’t an area where there’s a lot of misconduct going on.
Torchinsky: I think the lawyers—probably a lot of the people sitting around this table—have scared a lot of the operatives into following the rules. The consequences of not following the rules, for the candidates in particular, are so great that it’s just not worth it.
Elias: To answer your question, I think the press and the public should focus more on the role of technology in elections. It’s always been the case that you can access public information, but the role of the Internet and social media has sped that up. I remember getting calls from candidates who would pull off the side of the road and say, “I just heard that someone heard something on TV and it was something like…” And you would get this secondhand account of what some ad was. Now, technology has really changed the way campaigns happen. All of that also impacts the law. You have this law that has not really been updated to deal with technology. It still clunks around on these issues. So if there was something that I think was underreported, it’s probably that. Frankly, where I have been critical of the commission has been where it doesn’t acknowledge the democratizing force that technology and the Internet has been.
C&E: On the coordination point, what does a Senate hearing accomplish? Is there really enough steam for that to move forward?
Lenhard: There’s an old Gore Vidal quote that I’ve been repeating: “People who think alike don’t need to conspire.” I think there’s a certain truth to that. If you pull a half dozen political consultants together from either side of the aisle, give them polling data, demographics, the make-up of a district—they will come up with similar strategies.
Elias: I would only say that Senator Schumer chairs the Rules Committee and introduced the DISCLOSE Act last Congress, which passed the House and came close to overcoming a Republican filibuster in the Senate. To the extent that Michael asks about the legislative response, the Rules Committee is the committee of jurisdiction over campaign finance. You would expect that it would have a natural interest in looking at the campaign finance system to see what works.
Toner: I think there’s a growing sense that the situation political parties find themselves in needs to be examined under the law. Virtually any entity in America, other than the national parties and the candidates themselves, can now spend unlimited corporate and individual contributions on election related activities. We’re not in an era where we are going to see unlimited corporate contributions to candidates, but I do think there’s a growing concern about the national parties. They are doing a very good job of trying to make the best of the environment they find themselves in, but I think we have to be fair in looking at how they try to compete with all of these outside groups. It’s very hard.
Elias: The DISCLOSE Act had in it some relief for the parties. That was one of the things that was disappointing for folks like me who thought the DISCLOSE Act could accomplish a bipartisan goal. This is something that I think was overlooked a little bit by my Republican colleagues and friends.
Toner: In fairness, there were a lot of terrible draconian provisions in there.