Sean Treglia Didn't Make It Up

The fallout over Sean Treglia's exposure of the role that Pew and other trusts played in the passage of BCRA, or McCain-Feingold, has grown to include shots at both Treglia's story and the reaction it caused in the blogosphere. For those new to the controversy, Treglia is a former program officer at the Pew Charitable Trusts, formerly a foundation and now a nonprofit located in Philadelphia. Pew, among the largest trusts in the nation, counted assets in 2003 of $4.1 billion, with $143 million in grants that same year. But an article I've come across in Pew's own newsletter, Trust (no irony intended), belies the claims that Treglia simply got carried away or skipped his meds on that March day in 2004 when, at the Annenberg Center at USC, he blew the whistle on Pew's shenanigans.

The article, by Thomas Mann of the Brookings Institution, is a paean to Pew's successful efforts to see BCRA over both the legislative and judicial hurdles it faced on its way to passage and Supreme Court approval. It ran in the Summer, 2004, issue of Trust, and is titled (again, no irony intended), "Juice Worth the Squeeze." Just who or what Mann's referring to there I don't know, although one could posit that the Constitution, the voters, and no small number of politicians had the squeeze put on them thanks to Pew's actions.

This quotation captures the gist of the piece:

To members of the campaign finance reform community, this wonderfully satisfying victory in McConnell v. FEC [the 2003 SCOTUS decision that upheld the constitutionality of BCRA] affirmed critical decisions made years earlier: to refocus the reform agenda on a limited set of pressing problems that emerged in the 1996 election, to frame legislative proposals that could attract bipartisan support in Congress and pass constitutional muster, to build a substantial empirical record documenting how contemporary campaign-finance practices departed from the intentions of existing law and to attract to the reform coalition a broader, more diverse set of groups and interests.

These decisions transformed what had been a fractious reform community pursuing an ineffectual legislative strategy since the mid-1980s into a more pragmatic, formidable, and ultimately successful force. Looking back on this history, I am struck by the pivotal role played by The Pew Charitable Trusts and allied foundations in nurturing the efforts that made possible the new campaign finance law [emphasis added].

And, we learn, the wise men who disapprove of political speech they can't control formed a cabal in the aftermath of the 1996 presidential election, which they saw as proof that controls were needed lest everyone get carried away with all that free speech stuff:

Shortly after the election, Norman Ornstein, Resident Scholar at the American Enterprise Institute, convened a small group of campaign finance experts--including Anthony Corrado, Michael Malbin, Paul Taylor and myself--to assess the wreckage from the 1996 campaign and take a stab at refocusing the reform agenda.

Previous efforts had tried to reduce the amount of money in politics, primarily by restricting political action committees (PACs) and limiting campaign spending. The reformers’ rhetoric--too much money flows into politics, private donations are inherently corrupting, and spending limits are indispensable to a reform agenda--had proven counterproductive.

But these efforts were resisted because they played their hands so brazenly. Americans are a finicky lot, you see, and they need to be coaxed into handing over their freedoms little by little. Think of the old story about boiling a frog by gradually increasing the temperature of the water he's sitting in:

Now another reform group was counseling a different approach with a decidedly different rhetoric. Set aside PAC attacks, spending limits and demands for full public financing of all federal elections. Instead, proceed incrementally by first repairing the tears in the existing regulatory fabric [emphasis added]. Eliminate party soft money, but make it easier for parties and candidates to raise hard money. Create a constitutionally acceptable alternative to "express advocacy" as an unambiguous bright-line test for identifying electioneering communications that would be subject to disclosure and limits on sources of funding. Restore the longstanding prohibitions on contributions and expenditures from corporate and union treasuries in federal elections. Strengthen the enforcement of campaign finance law. Provide free or subsidized air time for candidates and parties. Use tax credits to encourage small donations.

Mann states in the following paragraph that their recommendations were included in the report "Five Ideas for Practical Campaign Finance Reform." And he pays homage to Becky Cain, president of the ostensibly bi-partisan League of Women Voters, which was "the first reform group to embrace the new approach, ultimately leading to a national advertising campaign on behalf of "Five Ideas [for Practical Campaign Reform]."

As an aside, it's worth noting that Mann says that partial credit for BCRA's eventual success came from, among other factors, John McCain's 2000 presidential run, the Enron scandal, and "the 2001 change in party control of the Senate following Jim Jeffords' defection from the Republican party."

Then comes the moment we've been waiting for: Mann's affirmation of Sean Treglia's contention that Pew money supported this early strategizing. He delivers it at several different points:

But also crucial were the shift to a more focused and achievable agenda, a new-found pragmatism and consensus in the reform community, compelling research on soft money and issue-advocacy broadcasting in the 1998 and 2000 elections and the addition of voices from groups not heard in previous reform debates. And in each of these latter cases, support from the Pew Trusts played a critical role, sometimes on their own but often in concert with the Joyce Foundation, the Carnegie Corporation, the Open Society Institute and others [emphasis added].

The Trusts launched its efforts on campaign finance in 1996 as part of a larger program under the direction of Paul Light to "strengthen democratic life" in the United States. To try to overcome the obstacles that had frustrated past efforts, the Trusts developed a grant-making strategy on money in campaigns designed to encourage an incremental approach to reform based on nonpartisan research and data and to bring new, more varied voices into the debate [emphasis added].

And then we learn about Pew support for the wise men's "Five Ideas" white paper, the League of Women Voters initiative, and, in general terms, the various research undertakings that of which Treglia spoke:

Its initial grants bore fruit. The Trusts supported the meetings that produced "Five Ideas" and financed the public education and outreach activities of the League of Women Voters to promote the new agenda. Grants to a number of independent policy centers and universities launched the collection of a body of empirical data on the amount, sources, uses and impact of money in campaigns. The Aspen Institute and the Committee for Economic Development helped broaden support for the refocused agenda among current and former policymakers and within the business community.

Mann then outlines some of the research that produced the kind of results Pew and other foundations were happy to spring for:

Under the leadership of Public Policy Director Michael X. Delli Carpini, the Trusts in 1999 renewed and refined its strategy for supporting efforts to reform the federal campaign-finance system. Trusts-supported research on campaign advertising by Jonathan Krasno at New York University’s Brennan Center for Justice and Kenneth Goldstein at the University of Wisconsin provided crucial data both to the public, including members of Congress during their deliberations on BCRA (then known as McCain-Feingold), and to the courts when determining the new law’s constitutionality. In fact, the researchers’ findings on electioneering communications were so telling that opponents tried--unsuccessfully--to challenge the integrity of the research during the litigation.

With support from the Trusts, David Magleby of Brigham Young University assembled teams of scholars to monitor how parties and interest groups used soft (nonfederal) money to influence federal elections. Other grants were made to survey public and elite attitudes on money and politics. Together with the Joyce Foundation, Carnegie Corporation and the Smith Richardson Foundation, the Trusts established the Campaign Finance Institute, which has convened bipartisan teams of practitioners and experts to synthesize research and make recommendations on pressing issues of money and politics.

And then comes the "Astroturf" campaign. Recall that Treglia described efforts by Pew to manufacture grassroots support for campaign finance reform in order to pressure politicians into thinking that they were surrounded by pro-reform voters and activists. In Treglia's own words:

The idea was to create an impression that a mass movement was afoot — that everywhere they looked, in academic institutions, in the business community, in religious groups, in ethnic groups, everywhere, people were talking about reform.

Over seven years, I spent about $30 million of Pew money on this effort. And the money led directly to key elements of the McCain-Feingold legislation: the ban on soft-money, the issue-advocacy provision, the better disclosure and the stand-by-your-ad...

We funded the business community, minority groups, religious groups.

Well, here's a look at that policy in embryonic form, via Thomas Mann. First the dirt:

Under the direction of Anthony Corrado of Colby College, new voices--including those of leaders of various faith traditions, ethnic and minority organizations and environmental groups--entered the debate as a consequence of the Trusts’ initiatives. Resources available to journalists covering campaign finance issues, and media coverage more generally, increased markedly as a result of these projects.

Then the spin:

All of these efforts were designed to create an environment that encouraged an open and informed debate on campaign finance reform, [emphasis added] a debate that the Trusts believed would eventually produce constructive steps to improve disclosure, strengthen enforcement, ban or curtail soft money and regulate issue ads intended to influence elections.

Please. While this may have been known to the denizens of the trust community, not to mention a few tight-lipped reporters, the debate, such as it was, consisted of paid groups and well-funded studies hawking approved conclusions for pre-determined ends.

Mann also drops a few names that will be familiar to those who've followed this sorry tale:

Fortunately, the Trusts and its partner foundations fully anticipated the legal battle that would follow. A new Campaign Legal Center, directed by Trevor Potter [emphasis added], was launched to defend the law in the courts and to represent the public interest before administrative bodies implementing BCRA. The center provided timely public access on its Web site to all of the legal documents in the case, coordinated the submission of an impressive set of amicus briefs in McConnell v. FEC, and facilitated the publication of a volume presenting key testimony by expert and fact witnesses. Both the amicus briefs and expert testimony were cited extensively in the opinions of the District Court panel and Supreme Court.

Trevor Potter, you'll recall, served as general counsel to John McCain during the Senator's 2000 presidential bid, although his official bio. at the CLC's web site omits that inconvenient fact. I covered him here, when I wrote about his Center's smear campaign (much more here) against FEC Commissioner Bradley Smith in the aftermath of Smith's interview with CNET on March 3.

Of course, the Trusts had to cover the legal side of things thoroughly, and Mann brags, indeed they did:

The Trusts made additional grants to supplement the legal work being done in defense of BCRA by the Department of Justice and the Federal Elections Commission, on behalf of the government, and by Wilmer Cutler & Pickering, which provided pro bono legal representation for the congressional sponsors by partners Seth Waxman, Roger Witten, Randy Moss and by many other lawyers and assistants.

While the legal battle was fought primarily in the courts, the debate over the constitutionality and likely consequences of the new law took place very much in the public domain.

Additionally, link at Pew's site show some of the funding of left-wing groups to maintain and strength (recall the use of the word "incremental" two times in Mann's piece) McCain-Feingold: a half-million dollars to Democracy 21 Education Fund; the same to the Center for Public Integrity; $600k for the Brennan Center at NYU.

Mann's article is free on Pew's web site for all to see. I hope it receives wide circulation as a result of this post. But something else that Sean Treglia said back in March, 2004, puts this fact in context:

The reality is we did everything by the letter of the law. All our grantees disclosed that they were Pew grantees. We disclosed on our 990s and on our annual reports that we gave to all these people. We just never released press releases saying that we were funding these grants at the time...

If any reporter wanted to know, they could have sat down and connected the dots. But they didn't... [emphasis added]

Did we push the envelope? Yeah. Were we encouraged internally to push the envelope? Yeah ... We stayed within the letter, if not the spirit of the law.

As for Sean Treglia's role, there's no denying that the former Pew officer opened the door for attacks on himself not simply by speaking candidly at USC talk, but with his half-hearted retraction of those remarks that he put out once his story was reported widely:

"I apologize to The Pew Charitable Trusts and all the grantees who worked with me that my statements have caused so much confusion. The remarks being highlighted by some media are a small portion of a much larger panel presentation to top tier journalists on the history of philanthropy in the United States. I might be guilty of being hasty and choosing confusing language in my speech in an attempt to excite the crowd; me delivering a bad speech at a conference however is a far cry from Pew purposely trying to deceive. At no time in my experience with the Trusts did anyone attempt to hide, deceive or lie and I am surprised and saddened that my presentation has led some people to draw that conclusion."

But this isn't too surprising: after all, Treglia spent much of his career in the trust fund world, and by turning whistle blower, he most likely slammed shut the door to future employment in that realm. I don't doubt that Pew followed the letter of the law, and I haven't read any source charging them with anything illegal.

Rather, what Pew and other foundations did was expend well over $100 million to create the legal and social means to restrict the impact of the franchise in America. As Mann notes, you can put several smart guys with access to serious cash in a room, tap into the desire of incumbent politicians and the political class to control unruly political speech, build on that class's past record of agitating for campaign finance reform, and, in effect, build a better mouse trap. And that's what they did.

And they did so, at least in significant part, by simply funding research the way the NIH might attack a disease (albeit sotto voce), except that they had to found several institutions and fund many scholars in order to produce the "empirical" evidence they needed to prove their case.

Mann's article, published last summer, ends on a sunny note that, even then, proves the willingness of BCRA's backers to claim victory in the face of overwhelming evidence that their best-laid schemes have merely made matters worse:

Initial answers based on more than a year of experience under BCRA are reassuring. Parties appear to be adapting well to a post-soft-money world. The shakedown schemes and access-peddling by officeholders and parties have abated. Campaign speech--by candidates, parties and interest groups--is much in evidence. Small-donor fundraising on the Internet may produce a more competitive and less encumbered politics. Of course, these are first impressions, not final conclusions. Systematic research will provide more definitive answers as we move through this election cycle and into the next.

His concluding paragraph rivals the UN for chutzpah:

Clearly the struggle to strengthen our electoral system and heighten the legitimacy of American democracy has only just begun. [emphasis added] Still to be enacted are other essential campaign finance reforms [Note: remember the buzzword -- incremental]: repairing the Presidential public financing system, fostering electoral competition through subsidized air time and other modes of communication, constructing more effective enforcement regimes and encouraging small donations. Additional problems and opportunities will surface as money inevitably finds new outlets in campaigns. We steel ourselves for what lies ahead--but now is the time to savor an important victory.

This fight is a long way from being over. Steel yourselves, bloggers.