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Wednesday, January 28, 2015

Alternative Paradigms for Regulating Campaign Finance

Many Americans believe that there is too much money in politics. But what should be done about it? As far as the Supreme Court is concerned, not much. Currently, the Court accepts only one justification for placing limits on campaign contributions, and that is to prevent corruption or the appearance of corruption. However, the Court defines corruption narrowly, telling us that limits on contributions are only justified when they are enacted to prevent quid quo pro corruption. That is when a campaign contribution is given in direct exchange for the official’s vote, like a bribe. Other kinds of influence that donors have on politicians have not been recognized as corrupting.

Limits on campaign expenditures, meanwhile, including the funds that candidates themselves spend when they run for office, or the so-called “independent expenditures” that outside groups spend without coordinating with the candidate, are subject to strict scrutiny. The Roberts Court has been extremely hostile to campaign finance regulation. Just about every single campaign finance law that has come before it has been struck down.

This is probably not the place to get into a doctrinal debate about campaign finance, a complex and intricate area of the law. Suffice is to say that Congress no longer has the stomach to regulate in this important arena. Thus champions of campaign finance reform—a group that includes many prominent legal academics—need to find a new way forward.  

At AALS, I participated in an excellent Hot Topics panel called “Citizens Invited: Scholars and Professors in the Campaign Finance Wars.” It organizers, Jamie Raskin (American) and Richard Albert (Boston College), realized that campaign finance is one area where scholarship actually plays an important role. Law professors-turned-would-be-politicians, such as Zephyr Teachout (Fordham), told us of their experience of running for office (Zephyr published an excellent op-ed on corruption earlier this week in the New York Times). Law-professors-turned-presidential-campaign-advisers, such as Spencer Overton (GWU), explained how the bundling of campaign money worked differently during President Obama’s 2008 and 2012 campaigns. Law professor-turned-campaign-finance-reformer Larry Lessig (Harvard) described the “green primary,” or the cyclical race to raise lots of cash by wooing the wealthy and powerful, and how that works to corrupt politicians. And law professor-turned-FEC-commissioner-turned-campaign finance-reform-skeptic Bradley Smith (Capital) argued that the liberals on the panel were assaulting the First Amendment that we otherwise hold dear.

What struck me most about this panel—and strikes me most about these debates—is the role that academics are currently playing in shaping, criticizing, and, yes, defending the system. I happen to be a skeptic of it. But I also believe that new ideas are desperately needed for how to move forward in this area. At this point, any new reform proposal must have two characteristics. First, it has to be non-statutory. By this I mean simply that any reform effort cannot come in the form of a statute. Second, it has to be extra-judicial. By this I meant that whatever method for regulation is chosen, it cannot be subject to judicial review. Here are some ideas that scholars have proposed for regulating money in politics that satisfy these two criteria:

(1)   Amend the Constitution: Some scholars, like Tim Kuhner (Georgia State), and he is by no means alone, have advocated passing a constitutional amendment to overturn Citizens United, although such an effort recently failed in the Senate.

(2)   Contract around the Problem: As Ganesh Sitaraman (Vanderbilt) recently explained in his article in the Columbia Law Review, an extrajudicial proposal was tested in Massachusetts in 2012 when Scott Brown and Elizabeth Warren entered into a contract to control spending by outside groups in their Senate race. Calling their contract The People’s Pledge, it required each candidate’s campaign to pay to a charity 50 percent of any third party’s advertising costs for any negative advertisements run by third-party groups during the campaign. 

(3)   Get Citizens Involved: Some scholars have proposed granting “vouchers” to citizens to allow them to make contributions to campaigns in small-dollar amounts.  Giving every citizen a $50 voucher would raise roughly $6 billion in an election cycle if all of us chose to give to political candidates and campaigns. This is more than the total that was spent by all candidates in 2010, 2012, and 2014.  The idea for democracy vouchers has been championed by Lessig, and a similar idea—to give out “patriot dollars”—has been proposed by Bruce Ackerman and Ian Ayres.

These are certainly interesting ideas, though they have limits. My own contribution to these debates is not meant to supplant them, but to add to the mix. It calls for the House and Senate to adopt internal rules, not unlike the Filibuster, regulating how members of Congress are able to accept campaign contributions. For example, Congress's ethics rules already regulate gifts and lobbying. They could potentially make it unethical for members of Congress to accept contributions from non-constituents who reside outside of a candidate’s district, too, or they could be used to place a ceiling on contributions. Any elected candidate who violates these internal congressional rules would face the prospect of having an ethics inquiry launched against him and potential expulsion from his respective chamber of Congress.

Tim Kuhner and I are currently at work on a larger project that looks in more depth at alternative paradigms of regulating campaign finance in the United States. We believe that any reform proposal must begin by recognizing that Congress is unlikely to adopt any new major campaign finance legislation because of the possibility that it will be struck down by the courts. The challenge for reform advocates is to come up with a strategy to regulate money without running afoul of the First Amendment.  Today, any law seeking to do this would have to withstand a court challenge.

Given the Supreme Court’s hostility to reforming the system, what should Americans do? The legal academy has played an important role in helping us think of some solutions. Of course, other ideas are needed, too. I’ll leave the comments open for your thoughts. 

Posted by Eugene Mazo on January 28, 2015 at 11:03 AM | Permalink


Instead of a voucher, you could just set aside $2.08 every week on your own.

The voucher system might sound nice, but I wonder what negative effects will come from teaching people that democracy is something they're given, rather than something they have to work for.

Posted by: Derek Tokaz | Jan 28, 2015 3:10:16 PM

Howard, you make a good point, and you are correct. Neither my proposal nor proposal #3 deal with independent expenditures. Any reform effort aimed at curbing the power of independent expenditures would have to be directed, as a practical matter, at the requirement that such expenditures not be "coordinated" with the candidate. In the real world, of course, there is always some coordination going on. It just happens under the table or behind closed doors. Exactly what coordination entails needs to better defined, possibly expanded, and ultimately better punished. Again, the work of scholarship in this area will continue to be key.

Posted by: Eugene Mazo | Jan 28, 2015 1:45:19 PM

# 3 and your proposal are both very interesting, but neither addresses the issue in CU of expenditures by non-candidate speakers. You don't propose that Congress regulate expenditures (and I'm not sure it could). CU remains the case that for everyone defines all the ills of campaign spending, but most reform efforts ignore that.

Posted by: Howard Wasserman | Jan 28, 2015 11:52:13 AM

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