Avoiding Unilateral Disarmament is not Hypocrisy: Campaign Finance Edition

My latest Verdict column, titled The Past, Present, and Future of Free Speech in America, takes readers on a very brief tour of the history of free speech protection in the U.S. It's a brief tour because prior to the 1960s there wasn't much such protection. Since the 1990s there has been a consensus among legal elites about the necessity of protecting at least a core of free speech, but among the broader public, free speech tends to be invoked selectively--especially (although not exclusively) on the political right. I describe Donald Trump's claims that he was subject to censorship when he was ordered not to threaten witnesses, jurors, court personnel, or their families during his hush-money trial. Such claims are bogus in their own right but especially hypocritical, given all of the ways in which Trump threatens free speech and the free press.

For today's essay, I want to discuss another charge of hypocrisy. The most recent episode of the generally excellent NPR show/podcast On the Media concerns money in politics. One segment focuses on dark money (which is funneled by anonymous donors through 501c4 organizations). OTM co-host Micah Loewinger interviews journalist Helen Santoro. They discuss how, as AG of California and a U.S. Senator, Kamala Harris sought to regulate dark money (by requiring disclosure) but that now that she's running for President, she has welcomed its use to support her campaign. Loewinger and Santoro suggest that Harris is a hypocrite. Here's the crucial passage:

Micah Loewinger: It does seem to me that the Democrats are using a realpolitik justification. They're basically saying they need to take dark money the way Republicans have, and that without fighting fire with fire, the electoral playing field would be so tilted against Democrats, they'd have no chance of staving off an increasingly extremist candidate and his party and surely have no chance of pushing through the campaign finance reforms in Congress that they've been talking about. Yes, it definitely feels hypocritical. On the other hand, is it really reasonable to expect Kamala Harris to take some big, virtuous stand in this election and forgo all of this cash, given what's at stake?

Helen Santoro: That's exactly what legislators on the Democratic side have been saying. Like, "We have no choice but to play ball if we want to remain competitive here, people." Listen, I think it's important to remember that there was a time before the 2010 Supreme Court case, Citizens United, that allowed corporations to donate unlimited amounts of money towards election campaigns.  . . . This idea that this is the only way to run elections through the elite swaying with their money, I just don't think is true. I would love to see if Harris is elected or other democratic legislators putting more of their money where their mouth is.

Santoro is wrong about a side issue. Citizens United did not allow corporations "to donate unlimited amounts of money towards election campaigns." It allowed them to make unlimited "independent expenditures." Let's put that aside to focus on the hypocrisy charge.

Loewinger and Santoro accurately describe the reason why Harris and other Democrats who oppose dark money accept it as a necessary evil so long as Republicans are benefiting from it, but they then insinuate that there's something wrong with this justification. What, exactly? Santoro says that it's possible to raise money to run for an election without relying on dark money, which is true, but of course then a candidate and their supporting benefactors raise less money than they otherwise might and potentially much less than their opponent.

There is nothing necessarily wrong with seeking a rule change but exploiting the existing rule to prevent one's opponents from gaining an advantage. A sports analogy might be helpful. Suppose the manager of a baseball team thinks that regular-season baseball would be better if extra innings games did not begin each extra half-inning with a runner on second base. The manager gives speeches and interviews urging MLB to get rid of the "little league approach." Is it hypocritical for the same manager to send out a runner to second base at the start of his team's extra half-innings? Of course not. Baseball games--like elections--are zero-sum. Failure to exploit a bad rule while one's opponents exploit it is unilateral disarmament.

In the foregoing hypothetical example, there is no reason to think that the manager who takes advantage of the ghost-runner rule while it's in force is in any way indicating that he would prefer to see the rule retained or that his objections are insincere. The same is true of campaign finance. And yet at the end of her OTM interview, Santoro suggests that Harris's failure to unilaterally disarm when it comes to dark money calls into question her commitment to reform. She concludes skeptically as follows:

It's really a question of if elected, is Harris going to use her presidential power to push for dark money reform? Is the Disclose Act going to come up again, or is she going to allow secretive donors to continue influencing US politics? I hope she wants to continue pushing for that reform as she did as senator and attorney general in California, but that remains to be seen.

What's going on here? There is a tendency among goo-goos (people, including some journalists, who see themselves as advocates of good government) to think that realpolitik is necessarily dirty. In 2021, I wrote a Verdict column explaining that while it would be best if there were no gerrymandering, so long as legislatures in red states gerrymander their congressional districts, it would be foolish unilateral disarmament for blue states (in that case New York) to fail to do the same. A few months later, an ACLU fellow named Duncan Hosie published an op-ed in the Wall Street Journal that chastised me for my lack of purity. I had written that there are worse sins than hypocrisy (if in fact gerrymandering when the other party is also gerrymandering even counts as hypocrisy). Hosie countered: "Yet in a democracy, what is a worse sin than weaponizing the machinery of government against political opponents?"

What's worse? I'll tell you what's worse. Refusing to take advantage of currently legal means to secure political advantage when the other side is fully exploiting those means and that other side has become an authoritarian party that threatens a permanent end to constitutional democracy in America as we know it.

In order for Democrats who favor restricting dark money and gerrymandering to accomplish their aims, they must have political power. Noble ends do not justify all means, but if the path to restricting dark money runs through dark money or the path to forbidding gerrymandering runs through gerrymandering, so be it.