Reform without purpose: The Campaign Finance Reform Community Responds to Americans Elect

Recently elements of the “reform community” have been getting themselves worked up about a most improbable threat to American democracy: an organization called “Americans Elect.”

The venerable, ubiquitous everpresent omnipresent always-alarmed Reform guru-in-chief Fred Wertheimer says that Americans Elect poses a “danger to the integrity of the electoral system.” So alarmed is Wertheimer that he has even reported the group to our nation’s traditional guardian of democracy, the Internal Revenue Service, recommending an investigation. The Campaign Legal Center, a “reform” group headed by Trevor Potter, a man who repeatedly denies that participating in politics requires any particular legal acumen even while charging hundreds of dollars an hour for his services, joined Wertheimer’s alter ego, Democracy 21, in tattling to the IRS. (Their charges, if pursued, will undoubtedly impose no legal fees on Americans Elect.)

Ash Roughani, a reformer who is trying to start something called the California Moderate Party, fears its “stealthy nature” and makes that patently incorrect statement that this violates the fundamental premise of “crowdsourcing.”

Rick Hasen, the reformer law professor who publishes Election Law Blog, says he “fear[s] many aspects of [Americans Elect].” He concludes, “Watch out.” Mother Jones, the venerable, ubiquitous everpresent omnipresent always-alarmed loadstar of the lost generation, covered the group under a headline announcing that Americans Elect is “fueled by dark money.” Oooooh.

What is so scary about Americans Elect? Here, a touch of background is in order. Americans Elect emerged from the ashes of Unity ’08, a similar effort conducted back, well, before the 2008 presidential campaign. Operating on the theory that the major American political parties were trapped by their base voters and special interests into extreme positions not representative of a more moderate majority that they perceived, Unity ’08 sought to bring Americans together behind a moderate, bipartisan ticket in 2008. Unity ’08 contained a few supporters with political experience, but like many outsider reform movements, it’s leadership largely consisted of, well, outsiders, individuals who had previously had only a passing interest in the workings of politics. Like most such reform movements, such as the Reform Party of the late 1990s, it’s leaders had had deeply impressed upon them the “campaign finance reform” movement view of money and politics. It was enamored of campaign finance reform and “good government” type regulation of politics, even urging voters to pledge to vote only for a candidate who raised the majority of his campaign funds in contributions of $250 or less.

But Unity ’08 soon learned that campaign finance and other forms of political regulation are not really the outsider’s friend. Ballot access laws were, as they have always been, a tool to hinder, discourage, or prevent a national campaign outside of the two major parties. In particular, however, they discovered that campaign finance laws, and in particular provisions of the McCain-Feingold BiPartisan Campaign Reform Act (drafted with the help of Messrs. Potter and Wertheimer, among others), made formation of a new political party almost impossible – indeed, as a practical matter, illegal. But Unity ’08 ultimately decided not to die a noble death. Learning from its experience, they grew to understand that money is not the root of evil in American politics, but a vital tool to anyone who would seek to exercise their First Amendment rights on a large scale. They took things to court, and in 2010 the U.S. Court of Appeals issued a surprising decision   freeing Unity ’08 from virtually all campaign finance restrictions, at least until the group nominated candidates. Thus able to raise the tens of millions needed to start a new political movement and gain ballot status in all 50 states, the organization, reconstituted as Americans Elect, went to work.

Americans Elect is in the process of gaining ballot access in all 50 states. It then plans to hold a national, on-line nominating convention, for which any U.S. voter can sign up as a delegate, with the winner being granted the Americans Elect ballot line. The candidate will be responsible for funding his or her own campaign. And Americans Elect requires just one thing of its nominee – that he or she choose a running mate who is not from the same political party. Through the online balloting and the running mate rule, they hope to empower the centrist voters they believe are out there pining for other options to select a moderate presidential ticket that will break the lock that Republicans and Democrats have on American politics.

Now, a lot of people might think that all this is a great idea, and a brilliant strategy, and a lot might think it is a bad idea; or a naive plan; or a silly idea. What’s hard to figure out is why someone would “fear” this idea or consider it “a danger to the integrity of the electoral system.” Oh, maybe Democratic or Republican partisans worried that the Americans Elect nominee will harm their party more than the other, but beyond that? The traditional “reformers,” however, are indeed afraid.

Professor Hasen, whose critique has been the most detailed and quoted, lists three “fears” about Americans Elect:

  1. The organization’s rules allow a rules committee to disqualify a ticket that is not “balanced;”
  2. The organization has not publicly disclosed in donors.; and
  3. It’s internet based election process is not “secure.”

This, says Professor Hasen, creates a “democracy deficit.”

What? “Democracy deficit?” We find both the charge, and the way in which it is made, something close to bizarre.

Americans Elect is not the U.S. government. It is a private organization of people who are attempting to create a new way in which people might organize themselves for political purposes. While it is true that most voluntary associations in the United States adopt democratic forms, most operate as something far short of perfect democracies. Frequently few members vote; elections are uncontested; offices are maintained by individuals over long periods of time, often without any opposition; deference is given to founding members or other significant figures with the understanding that those persons “run” the organizations, and so on. None of this ever much concerns us, even though many such organizations – say Common Cause, the Campaign Legal Center, Democracy 21, or Loyola Marymount University – may exercise considerable influence on public affairs. We’re usually pretty content, so long as the actual members and participants are content. As private organizations, even ones engaged in public affairs, we don’t usually feel entitled to demand that they meet our personal standards for organization.

Let’s look but briefly at Professor Hasen’s concerns, which are more or less what other reform minded critics such as Wertheimer are saying as well.

First, there is nothing terribly unique about Americans Elect having rules and a process for enforcing those rules through an Executive Committee. Some state laws give state party leaders a veto over what candidates will appear on the ballot in their state run primaries. Of course, parties don’t have to have primaries – they can insist on nominating by convention. Delegates to national party conventions – even when chosen by primaries – can be unseated by party rules committees. They can vote for whomever they choose, and they can switch their commitments in midnight sessions in smokeless cigarette vapor-filled rooms (actual smoking in hotels and convention centers being increasingly prohibited both by property owners operating without democratic processes and governments operating with democratic processes).

Compared to the Democratic or Republican National Committees, Americans Elect seems to have established a remarkably open process for members to voice their opinions and select candidates who agree with the majority of those opinions, at least as much as is ever possible in politics. We don’t mean to suggest that reformers have no right to warn the public about the “dangers” of Americans Elect’s processes, if they think that important. But the process hardly seems less democratic than, say, the Iowa caucuses, in which campaigns can pay to bus in voters, who must then vote without the protection of a secret ballot. But we don’t hear much about a “democracy deficit” there.

Similarly Professor Hasen worries that Americans Elect has not “offered a compelling reason for failing to disclose the identity of its donors.” We find this an odd way to frame the issue – the notion that it the group has “failed” to disclose its donors, and that it must offer a “compelling reason” for this “failure.” We would think it a bit more natural to say that the group has “chosen” not to disclose its donors, a choice that the speaker disagrees with. But the Americans Elect decision isn’t a “failure,” or even poor strategy. We suppose people such as Hasen and Wertheimer may see it as “failing” to live up to its declared standards, because Americans Elect prides itself on openness. But isn’t it for Americans Elect and its members to decide what constitutes an appropriate level of openness? The lack of donor disclosure apparently doesn’t concern members. After all, it’s not something buried deep in the by-laws. If Americans Elect supporters weren’t already aware of this, that suggests they weren’t particularly worried about donor disclosure, just as most of us aren’t terribly worried about who all else gives to our favorite charity, or even the candidates we support. Meanwhile, Americans Elect’s officers and top staff are publicly known, and it has a rather large advisory board that is also quite public. Perhaps Peter Ackerman, the highly successful venture capitalist and philanthropist who is the organization’s Chairman, is simply taking orders from the big money guys in the background, and the Advisory Board, which includes some other highly successful people, are just hapless dupes. So look at their backgrounds: Does that seem likely? No? We didn’t think so either.

But we’re also puzzled by the insistance that the decision not to disclose donors to the reformers satisfaction requires a “compelling” reason. We take Professor Hasen to mean by “compelling” a reason that he personally agrees with. Hasen suggests it would be compelling if people were throwing Molotov cocktails through the windows of Americans Elect donors. While we certainly agree that that would be compelling, we hardly think such a high threshold is necessary. When Americans Elect’s CEO Khalil Byrd says that some supporters fear retribution, Hasen scoffs that “there is virtually no evidence that contributors to candidates or parties face harassment these days because of their contributions.” But leaving aside that “virtually no evidence” (as opposed to actually no evidence) may be a relatively unsatisfying standard to the person putting himself on the line, that’s not really the standard, either, is it?

Some people fear retribution (not necessarily “harassment”) from public officials for not supporting the party. Surely anyone as skeptical of the integrity of public officeholders as Fred Wertheimer can understand that. Some of those people do business with the government and may wish to keep their political expenditures quiet, fearing they’re political opposition will hurt their ability to gain what are supposed to be merit based future contracts. Others may support the purpose and approach of Americans Elect, but don’t want to give politicians – some of whom they may support – the sense that they are abandoning them for another party (which is not necessarily the case, given the Americans Elect structure.) Maybe they want to avoid the attention – in theory, at least, Americans Elect should be attracting money from people who don’t historically give to politics and aren’t used to that game. For the big donors – and Americans Elect says it has a dozen or more who have contributed at least six figures – they may not want to be bombarded with other political and charitable requests. Some have social relations they’d as leave not disturb. Some simply don’t want to have to keep answering their friends’ questions: “What are you doing! [Obama]/[Republicans] must win!” These reasons are compelling enough to the people who are contributing to the project to want to keep their identities quiet. Hasen seems a bit presumptious to claim for himself the mantle of defining whether their concerns are “compelling.” Wertheimer and the reformers who see this as a “danger to democracy” are just, well, what can one say? Overwrought?

We think much more understanding of human nature and privacy is shown by Americans Elect’s Byrd, who says, “supporting this organization is a small, but significant act of courage, and people [have] to be encouraged to emerge at their own pace, disclosing whether they’ve given a dollar or much more than that.”

Then there is the voting security issue. Is Americans Elect’s system internet voting system truly secure from hacking? Who cares? We know they’ve got experienced web people who take that possibility seriously and have tried to address it and prevent it. People participating in Americans Elect seem happy enough. and there’s no evidence that Americans Elect’s system has a security problem, just that some “reformers” fear that Americans Elect will have such a problem. Which, when you think about it, isn’t really the “reformers” problem, anyway, is it? And if, in the end, one doesn’t think the person claiming the Americans Elect ballot line is legit? Well, OK, don’t vote for him or her. But he or she ought to have at least as much as democratic legitimacy as the typical winner of a contested Democratic or Republican Party nomination, chosen largely by small coteries of activists in Iowa, New Hampshire, and a handful of other states.

But most ironic in all this is the sense that Americans Elect somehow owes reformers some type of explanation. As of this writing, for example, Professor Hasen has used not one, not two, not three, not four, not five, but six blog posts  to more or less demand that Americans Elect respond to his complaints, plus several others critical of Americans Elect or noting its “democracy deficit.” In truth, however, Americans Elect has responded to Professor Hasen’s complaints, but just not to his satisfaction. The usual response when one is not satisfied with the answers is to say, “then I won’t support you,” and to move on, not to keep demanding answers, with the implicit contention that a group owes you some special accounting.

Of course, reformers are free to stay away from Americans Elect, just as they are free not to join the local Kiwanis, if they don’t like the group’s procedures. And they are free to discourage others from associating with Americans Elect. We just find their criticisms and attitude a bit strange. The insistance that Americans Elect must operate according to some set of rules that, by the way, are not always adhered to by the reformers themselves, and that it is in some way answerable to “the reform community” rather than its own members and eventually to voters for president, seems odd, and perhaps typical of the self-inflated status “reformers” often seem to possess, at least in their own minds, as the ultimate arbiters of good government. (Similarly, for example, Mr. Wertheimer also accuses Americans Elect of “circumventing campaign finance laws,” even though the U.S. Court of Appeals – which would seem to be a more authoritative arbiter of “the law” – says it has a right to do what it is doing).

In their criticism of American Elect, reformers seem to have forgotten the whole purpose of “reform.” While we’ve often disagreed with the “reform community,” we would hope that all would agree that the purpose of political regulation is not to watch over private citizens, but to watch over government. Reacting to Americans Elect, the “reform community” seems a bit like a patient having his reflexes checked. The doctor taps the knee, and the leg kicks. The kick serves no purpose; the mind doesn’t will it, and may even try to prevent it. But it can’t do anything else. It’s helpless to the impulse. Tap the knee, get a kick.

“Reform” without purpose.

The Center for Competitive Politics is now the Institute for Free Speech.