As the importance of outside spending on elections increases, campaigns have learned how to skirt the limited rules governing that spending. California is one of a few states pushing back before the 2016 elections.
At a recent white-table-clothed event at a posh Sacramento hotel, 40 candidates for statewide office listened attentively as representatives from California’s most influential political groups explained what their money can do -- including opposition research, said Alma Hernandez of California’s largest union.
“We know why you got divorced, when, if you got a traffic violation when you were sixteen,” Hernandez said.
Laiza Garcia of the California Association of Realtors said they can use that to attack opponents for candidates.
“We will probably take care of the negative, if the research tells us it will work,” said Garcia.
Janus Norman of the California Medical Association told candidates failing to meet with him would have consequences.
“Now I’m making a decision, is it worth the effort to get enjoined in an IE and spend hundreds of thousands of dollars to make sure you’re not here?” Norman said.
An IE is an independent expenditure group. Since the U.S. Supreme Court’s 2010 Citizen’s United decision, these groups can spend unlimited funds in elections—whether they’re labor unions, business interests, advocacy organizations, or generic patriotic-sounding committees with murky donors. The California Fair Political Practices Commission estimates outside groups spent $80 million last election cycle. Chairwoman Jodi Remke says that’s only increasing.
“Candidates and their committees know this is where to go, so they’re going to do what they can to encourage independent spending,” Remke says.
While states can’t limit the spending, they can bar these groups from communicating and strategizing—called coordinating—with candidates, who do have contribution limits. Still, coordination happens all the time.
“It’s just so tempting because the money is out there,” says attorney Gary Winuk, formerly California’s top elections enforcement agent. But, he only remembers two busts for coordination.
“These were very, very difficult cases to prove,” Winuk says. “Everyone who’s involved in them are all basically, obviously on the same team.”
Some methods of evading coordination laws are well-known: Candidates fundraise for an allied outside group, or a staffer quits the campaign—and joins the IE. Or, the two groups share political consultants. Some campaigns will post videos online of the candidate shaking hands, looking decisive, smiling with the spouse, but there are no words. Independent groups then pull the footage and use it in outside ads.
Outright banning these strategies could conflict with Supreme Court rulings. So, some states are cracking down in another way. Instead of having to prove coordination, Minnesota, Maryland, Connecticut, and Arizona assume it when candidates and outside groups fundraise together, putting the burden of proof on campaigns to prove they’re not coordinating.
As of October, California goes further—its new anti-coordination law also assumes guilt when groups share staff, consultants, or ad footage. Winuk says it’s probably the toughest in the nation.
“Having these coordination regulations will go a long way to making sure candidate contribution limits are more real,” Winuk says.
The rule also has its detractors. The California Political Attorneys Association argues some aspects are onerous to candidates. Republican political consultant Mike Madrid agrees, and he has a philosophical objection. “Let’s keep something in mind,” Madrid says. “As long as there has been government, there has been money trying to influence politics and trying to influence government, and there always will be. Let’s be clear about that. The goal should not be to try to chase all of this money out of politics, it should be able to shine a bright light on it so everyone knows what’s going on.”
Madrid says limits just drive money further into the shadows. In a twist, he and Winuk have teamed up. The two unlikely allies are pushing a ballot initiative next year that wouldn’t affect coordination, but would more tightly track spending, with the goal of pulling some of that money back out of the shadows.