SEATTLE UNIVERSITY LAW REVIEWVolume 37, No. 1, Fall 2013
State Session Freeze Laws-Potential Solution or Unconstitutional Restriction?
Dru Swaim(fn*)
I. INTRODUCTION
Since the Citizens United(fn1) decision in 2010 reduced Congress's ability to constitutionally regulate money in elections, proponents of campaign finance reform have looked for alternative ways to achieve the goals of greater transparency and reduce the amount of money spent in federal elections. In the three years since Citizens United, the amount of money spent in federal campaigns has increased exponentially. Although the total money spent for the 2012 election has yet to be finalized, virtually all publicly available estimates have the total spending at over $6 billion.(fn2) This total is more than $700 million higher than the amount spent in the 2008 election.(fn3) In fact, the total amount of money spent in federal elections has nearly doubled since 2000.(fn4) In the four years between 2008 and 2012, the money spent on congressional races alone has increased by over $1 billion.(fn5)
Beyond the direct impact that Citizens United had on the amount of money spent in political races, many media commentators and law professors have since suggested that traditional mechanisms for controlling money in politics, specifically restrictions on campaign contributions and expenditures, are now impossible as a result of this case.(fn6) It is undeniable that Citizens United drastically altered the landscape of campaign finance reform, allowing for massive increases in the amount of money spent on political campaigns.(fn7) Furthermore, when the Supreme Court had a chance to revisit the precedents set in Citizens United in 2012, it refused to hear the case, signaling that reform advocates will have to work within the restrictions enshrined by Citizens United.(fn8)
Citizens United represents a serious blow to the traditional methods used to restrict the amount of money in politics: limitations on the amounts campaigns can accept and spend. (fn9) Moreover, despite the difficulties facing federal reform laws, public distrust of Congress continues to grow,(fn10) demonstrating the need to take steps to help restore faith in the political process. Although some would argue that meaningful campaign finance reform is impossible in the wake of Citizens United, this belief is shortsighted and ignores other potential methods to control the flow of money into politics. The federal government should look to state governments to find new ways to regulate campaign finance. Specifically, the federal government should adopt a specific temporal limitation on when incumbent members of Congress can accept campaign contributions.
While it is true that "session freeze"(fn11) statutes are unlikely to reduce the overall amount of money spent in elections, they do create a bright-line delineation between the two roles of an elected official: campaigning and governing. State legislatures have found session freezes to be an effective way to combat corruption and the appearance of corruption in state legislatures.(fn12) With the traditional methods of regulating campaign finance becoming harder to utilize, the federal government should consider emulating these state laws to help restore faith in government.(fn13) Different forms of session freeze statutes have been utilized by different states, and an examination of these statutes and the cases interpreting them demonstrates that there is a clear way to formulate a federal law that would function within the bounds of the precedent set by Citizens United. Accordingly, Congress should implement a law that would prevent currently sitting federal elected officials from accepting campaign contributions from lobbyists and lobbyists' employers while Congress is in session.
Part II of this Comment provides a brief background of the law underpinning all campaign finance restrictions, and examines the structure of state session freeze statutes and the outcomes of challenges to these statutes. Part III suggests a specific proposal for a federal version of a session freeze. Part IV addresses critiques of the proposal and examines the issues it would face if challenged in court, but still argues that the proposal would be constitutional and effective in addressing campaign finance reform. Part V concludes.
II. FEDERAL CAMPAIGN FINANCE LAW AND STATE SESSION FREEZE STATUTES
Campaign finance law is regulated at both the federal and state level. Although federal races are regulated through federal law and state races are regulated through state law, both laws must still meet the standards set by the First Amendment of the United States Constitution.(fn14) Additionally, the United States Supreme Court has concluded that for the purposes of free speech in the political arena, money and actual speech are functionally identical,(fn15) and as such, spending money on political campaigns is protected under the First Amendment.
A. An Overview of Federal Campaign Finance Law
A brief glimpse of the development of modern campaign law is necessary to understand why Citizens United represents such a departure from past campaign finance jurisprudence. In 1971, Congress enacted the Federal Elections Campaign Act of 1971 (FECA).(fn16) Following reports of serious financial abuses in the 1972 Presidential election,(fn17) Congress made substantial amendments to FECA in 1974, including limiting campaign contributions for federal office,(fn18) limiting expenditures by candidates and their committees,(fn19) limiting independent expenditures,(fn20) requiring disclosure of political contributions,(fn21) and providing for the public financing of presidential campaigns.(fn22) A lawsuit was filed challenging these amendments, and the Supreme Court decided the landmark campaign finance case Buckley v. Valeo in 1976.(fn23) The Court in Buckley made a number of groundbreaking decisions. First, it upheld public financing for presidential campaigns.(fn24) Second, the decision held that both campaign contributions and expenditures are protected under the First Amendment.(fn25) Finally, it created different levels of scrutiny for contribution limitations and expenditure limitations on the grounds that restrictions on expenditures "necessarily reduces the quantity of expression"(fn26) while contribution limits entail "only a marginal restriction"(fn27) on the contributor's ability to speak. In other words, limitations on someone's ability to spend money to share their opinions is too close to a limitation on an individual's actual right to speak, while limitations on someone's right to contribute money does not unduly restrict a person's ability to engage in the symbolic act of contributing to a campaign.(fn28) Limitations on expenditures were subject to strict scrutiny, while limitations on contributions were subjected to the lesser but still demanding "exacting scrutiny" standard.(fn29)
This is not to say, however, that the Supreme Court has always been as hostile to the regulation of campaign finance as it is today. The Supreme Court has upheld restrictions on campaign spending in two key cases in the last twenty years. Austin v. Michigan Chamber of Commerce was the first key case, decided in 1990.(fn30) At issue in Austin was a Michigan law that banned the use of corporate treasury funds in independent expenditures.(fn31) The Court applied strict scrutiny and created a new compelling government interest in preventing the distorting effect of general treasury dollars on political campaigns.(fn32) The second case, McConnell v. FEC,(fn33) decided in 2003, upheld a federal law banning political parties from soliciting or accepting(fn34) so-called "soft money"-money donated to political parties used to influence elections.(fn35)
However, this period of greater acceptance of regulation on campaign finance law was short-lived: both Austin and McConnell were expressly overruled in 2010 by Citizens United v. FEC.(fn36) In Citizens United, the Supreme Court overturned a federal law barring the use of corporate treasury money for political campaigns.(fn37) Citizens United further held that the only sufficient government interest in regulating contributions or expenditures was to combat quid pro quo corruption,(fn38) or the appearance of quid pro quo corruption.(fn39) Moreover, shortly after the Supreme Court's decision in Citizens United, the United States Court of Appeals for the District of Columbia struck down all contribution limitations on independent expenditures and independent expenditure committees in the case Speechnow.org v. FEC.(fn40) The decision-premised on Citizens United- held that any contribution limitations on independent expenditure committees is unconstitutional because there is no risk of quid pro quo corruption in these situations since independent expenditure committees cannot donate directly to candidates.(fn41) Prior to Speech-now.org, independent expenditure committees had strict limitations on the amount of money they could accept from a single donor.(fn42) The decision in Speechnow.org gave rise to what are now known as Super PACs,(fn43) which can raise and spend unlimited amounts of money provided that they do not donate or directly coordinate with candidate commit-tees.(fn44) These recent decisions by the Supreme Court have led some legal commentators to conclude that disclosure may be the only restriction...
