What will the FEC’s new rules look like?
This is a question that may get answered sometime in April. The FEC is holding a public hearing March 2 and 3 to discuss new coordination rules in light of the Court’s decision. The commission will have to set up a framework for how to determine whether corporate and union expenditures are truly independent from the campaigns they support. It will mark the third time the FEC has tried to write such coordination rules—the commission was rebuffed by federal courts the last two times. “This has been an ongoing project for the FEC over the past eight years,” says former FEC Chair Michael Toner. But now that corporations, unions and other third party groups can spend with impunity, the importance of setting new coordination rules is heightened he says. And the Court’s opinion in Citizens United was critical of the commission’s previous attempt to craft rules in light of FEC v. Wisconsin Right to Life. After the March hearing, the FEC can rule on the new regulations at any time. To reach consensus, though, four of the six commissioners will have to agree. Says Toner, “This is such a vital area of the law that no matter what the FEC does, more litigation is a real likelihood.”Are small donors marginalized?
This is one of the big fears among critics of the Citizens United decision: Big corporate and union money will overwhelm the power of the small donor, even though the ban on direct corporate giving to campaigns remains intact. “I don’t think small donors will become irrelevant,” says Democratic fundraiser Phil Molfese. “But it’s certainly a lot easier for interests to get one check for a large amount from a corporation.” When it comes to campaigns though, the ruling may not change the small donor dynamic much at all. For all the focus on small donors during the ’08 cycle, their importance was no doubt overstated. A post-election analysis by the Campaign Finance Institute found that President Obama’s percentage of small dollar donors was actually about the same as George Bush’s in 2004. (Many donors who gave less than $200, donated several more times over the course of the campaign.)
“Technological changes have driven the increase in small donors, not legal ones,” says Michael Malbin, executive director of the CFI. Malbin actually thinks Citizens United offers a real opportunity to empower small donors. His idea: give the national parties an incentive to boost small donor efforts by allowing unlimited coordinated expenditures with campaigns, but only using money raised from donations of $200 or less. “The receipts from under-$200 donors alone in the last election cycle would have let the Congressional parties turn half of their independent spending into coordinated spending,” Malbin wrote in a February editorial in Roll Call.Will it impact the ground game?
With all of the additional money likely to be spent on TV in 2010, the environment might necessitate a change in GOTV strategy. “It certainly has the potential to change the approach,” says Phil Cox, who managed Virginia Gov. Bob McDonnell’s campaign last year and is now engaged in the Republican Governors Association’s planning efforts for 2010’s 37 races.
Here’s one possibility: All the clutter on TV could make some campaigns more dependent on the ground game to get their message out, particularly if third-party groups muddle that message in their attempt to help. There’s also the potential for campaigns to get so caught up in the air war that field directors find themselves fighting for additional resources.
“You could actually have a situation where a campaign ends up spending less on GOTV,” says Republican Phillip Stutts, who directed the 72-hour GOTV program for President George W. Bush’s 2004 reelection campaign. “There may be so much TV going on that a campaign just decides that’s more important.” And there’s always the outside chance that corporate or other outside interests decide to fund their own GOTV machine in a given race.
In some places, a rise in third-party expenditures could allow campaigns to preserve resources that could be redirected to the ground. In Virginia in ’09, Cox says the Chamber of Commerce and the NRA both placed big media buys in the state’s Roanoke media market. Since the McDonnell campaign liked the message, it was able to reduce its TV buy in that market—and spend that money elsewhere. Those groups are likely to have loads more cash to spend this November. “The only problem is that cuts both ways,” says Cox.Are the contrarians right?
There’s no shortage of alarmism among critics of the Court’s Citizens United ruling. To listen to some tell it, the ruling amounts to an affront to American democracy, which unfettered corporate money will begin to slowly tear apart this November. But there are a number of political consultants—Republican and Democrat alike—who think the impact will be a muted one, which begs the question: Will 2010 really look all that different? “I think you’ll obviously see some new money in the system,” says Amy Pritchard who heads the D.C. office of Mission Control, a Democratic direct mail fi rm. “But I really don’t think there’s going to be a huge amount of additional money spent.” What’s more likely, says Pritchard, is that the money spent will be allocated much differently. Money that may have otherwise been spent on lobbying will be directed to electioneering for instance.
“I think there are a lot of reasons that this ruling doesn’t change things,” says Republican Vinny Minchillo, who worked some 20 years in brand advertising before moving to politics. He thinks the vast majority of corporations will be gun shy when it comes to big political expenditures. “I don’t think you’re going to see Exxon-Mobil just jump into a congressional race,” Minchillo says. “To just start doing attack ads? I don’t think companies will be quick to risk their brand to do that.”
The reality for 2010 may be that the Court’s decision has created too uncertain of a playing field for corporate and other interests to put that much on the line in the short term. And with the FEC still finalizing new regulations and Congress feverishly working on legislative fixes, we may have to wait another cycle to see the real impact.Shane D’Aprile is the senior editor at Politics magazine.
What will the FEC’s new rules look like?