The roughly 40-member House Freedom Caucus (HFC) prides itself on dedication to principle. From the budget, to the debt ceiling, to the fight over the Export-Import Bank, HFC members claim to stand apart, thwarting cronyism and the political games of official Washington. But in the fight over the year-end, must-pass Omnibus spending bill, the roles are reversed. The HFC that so often fights to limit government intrusion now seeks to entrench a certain kind of political speech cronyism.
In opposing a campaign finance rider that would toss archaic and dangerous ‘coordination’ rules between parties and candidates, many HFC members ignore history and unwittingly support the criminalization of politics. The Freedom Caucus should expand its influence by truly standing on principle, not by trying to prevent political parties and candidates from working together.
Coordination rules impose the most stifling and perilous kind of political oversight. For the past forty years, federal law has dictated that strategizing between parties and candidates triggers “in-kind” contribution rules when ads are run and are therefore barred except in small amounts. The human and political urge for allies to talk sometimes leads to a theater of the absurd, whereby campaigns and groups seek to comply with these rules by mischievously hiding information in plain sight.
The real damage comes from coordination investigations. In Wisconsin, government agents with battering rams raided the homes of individuals supporting Governor Scott Walker’s legislative reforms, looking for proof of clandestine political conversations that violated the speech laws.
The Wisconsin Supreme Court quashed the probe last summer, but not before government agents seized millions of documents and, if allowed, would have subpoenaed millions more from nameless activists to nationally known figures. The investigation itself was successful in shutting down conservative groups across the state for two crucial elections. As campaign lawyers often say, the “process is the punishment” for speech someone in government doesn’t like.
Regrettably, it’s not just a few unhinged Wisconsin bureaucrats. The Wall Street Journal reported on the Department of Justice Election Crimes Branch’s eagerness to bring coordination prosecutions into DOJ’s portfolio.
By definition, these investigations require rummaging through presumed private conversations about public affairs. And there is a surprising level of cross-ideological consensus about the uselessness, or harm, of such rules. Unsurprisingly, libertarian scholars such as Roger Pilon, John Samples, and Bradley Smith favor the removal of these limits.
Repeal of the party coordination rules is possible now, however, because even liberal scholars, such as the Brookings Institution’s Tom Mann, recognize that the party coordination limits are destructive government policy. In Senate testimony Mann said, “The reality is [coordination rules] . . . introduce diminished efficiency and accountability. In fact, most political scientists believe the whole idea of parties operating independent of their candidates is preposterous. It is a perversion of what political parties are all about.”
But while this creates enough support to repeal the party limits, there is no similar support sufficient to get all coordination limits or contribution limits repealed, as some in the Freedom Caucus claim is their goal. The end result is that HFC has allied itself in opposition to the rider with liberal nonprofits such as the Campaign Legal Center and Democracy 21, groups that exist mainly to stifle political expression.
These groups regularly advocate for criminal investigations into political speech, most recently into a nonprofit backing Marco Rubio’s stand on the Iran deal. And previously they have been successful in triggering such investigations. Democracy 21 head Fred Wertheimer, then of Common Cause, sparked a federal campaign finance investigation after the 1996 election, which employed 24 lawyers, 67 FBI agents, and 35 support personnel. If these groups get their way, any citizen seeking to assist their favorite candidate can fear a not-so-subtle knock on the door from the FBI. Perhaps the Caucus itself or its allies will become targets.
Freedom is not the first descriptor that comes to mind for these activities.
The Caucus and some prominent conservative establishmentarians counter that allowing all this talking would produce an unfair advantage to moderate, party-favored candidates. But if the HFC’s ideas don’t resonate, they won’t win no matter how much anyone converses.
The HFC should cease aligning themselves with speech-police nonprofits and eager federal prosecutors. Whining about candidates and parties talking too much distracts from real issues and is inimical to freedom.
Paul H. Jossey is a campaign finance attorney and Adjunct Fellow at the Center for Competitive Politics.