Synergy and Citizens United

May 30, 2010

Before coming to law school, I worked as a fundraising and communications consultant for a number of House and Senate campaigns.  Sometimes, being involved in one race would lend opportunities to help a client in another.  For example, I would sometimes have clients in nearby districts who would do joint events, or who would each take a turn with a visiting speaker or leader during the same trip.

Most common, however, would be when one prominent figure (usually a sitting Congressman or popular party leader) would agree to write a fundraising email or letter for one client, and I would convince that figure to allow me to send a second letter on behalf of another client while we were at it.  My clients were often unaware that I was performing this service, but it’s actually quite common: the world of DC fundraisers is surprisingly incestuous, with fundraisers each attending events hosted by their colleagues and regular donors.  Think about it: if a campaign fundraising consultant doesn’t regularly attend events at the home of a prominent  donor, what are the odds of developing a close relationship with that donor and getting her to host an event for your clients down the line?  It’s also about networking: at some point, each of us found that we had to turn down a prospective client (for whatever reason–everything from ideological disagreement to prior commitments in the race), so we’d pass their information to a colleague and hope for reciprocity down the line.  It’s just good business.

So consider what the situation is now that Citizens United has been decided in favor of allowing nearly limitless corporate expenditures.  While campaigns are still forbidden from direct coordination with corporate donors, those corporations and campaigns may still be able to maneuver their way into a cozy relationship via third-party finance consultants.  The difference between helping a candidate raise money and helping a corporation target its political donations is not really that great–the goal in both instances is to locate good matches between prospective donors and candidates.

This sort of process has been around for a long time, most recently and famously exhibited by the Jack Abramoff scandal.  While working as a lobbyist for the Commonwealth of the Northern Mariana Islands, Abramoff arranged to bring House Majority Leader Tom Delay to the islands on an all-expenses paid trip.  Now, since lobbyists aren’t allowed to give gifts like free island vacations to Members of Congress, Abramoff had his client, the CNMI, fund the trip directly, and merely served as a conduit to connect CNMI with Delay.  (Abramoff was, of course, heftily compensated by the CNMI for his services in this regard.)

Another good example is the practice known as “bundling.”  Prior to Citizens United, PACs and businessmen would find it difficult to stand out as donors, so they would send their contributions first to a common figure–usually a lobbyist–who would then take the aggregate sum to the campaign all at once.  That way, instead of being just one interest group that gave one $5000 contribution, these interests would have a point-person who would be recognized as the source of hundreds of thousands of dollars in contributions, who would be able to easily gain access to the candidate and top staff as a result.  By establishing a third-party lobbyist as their spokesperson and empowering him or her with huge sums of money, these interests would guarantee themselves at least some method of getting the ear of an elected official (should the candidate happen to win).

And, of course, there’s the always-popular step of having your brother run an “independent” expenditure effort, though many of us are blessed only with sisters or denied the joy of siblings altogether.

Now imagine a situation where a corporation outsources much of the decision-making for its Office of Strategic Giving (or whatever term they prefer for their office that handles political contributions) to an outside consulting firm.  It then becomes easy for candidates looking to slyly coordinate with that corporation to do so–they simply have to hire the same firm to consult for them.  In exchange for access to the corporate funds, the candidates become a network of political actors espousing a coordinated line that advances the corporation’s agenda.  Compare this to bundlers: instead of a single person capable of delivering hundreds of thousands of dollars from divergent interests, you can have one person delivering an unlimited supply of financial assistance from a single corporate source.  Instead of having to keep dozens of interests satisfied, a candidate can focus on simply not offending one particular donor.  It makes the process much faster, and it makes missteps that much harder to make: all the candidate has to do is avoid offending the primary backer while remaining viable in the race.  It makes the candidate far more beholden to a particular interest, but it also makes it far easier to satisfy that interest, and makes the rewards for so doing more tangible from the campaign’s perspective.

This is not to say that the Citizens United decision was incorrectly decided or that the Constitution didn’t compel the outcome (though I do happen to agree with both of those points).  This is strictly a question of policy: given the current structure of campaign finance, especially the proliferation of fundraising consulting firms, the potential for candidates and corporate donors to coordinate with each other is truly massive.

There are some legislative steps that can be taken to regulate the third-party fundraising industry.  Regulations that prohibit a firm from simultaneously engaging in corporate planning and campaign fundraising might work as an initial step to discourage the coordination between the two groups.  Campaign fundraisers or corporate consultants who handle political contributions for federal officials might be required to register like lobbyists.  Either step is likely to survive judicial review, as both are narrowly tailored to prevent illegal coordination between corporations and candidates.  But these steps are also likely to increase the cost of hiring fundraisers, and many campaigns are simply unable to afford these services already.

Further analysis of ways to reduce the probability of corporate-campaign coordination via third-party consultants should be undertaken by Congress.

J.R. Lentini is a 2L at Georgetown University Law Center and a member of the Advisory Board of Bulldog Finance Group, a national fundraising and consulting firm.  He is also an associate editor for State of Elections.

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