Options for continued reform of money in politics: Citizens United is not the end.

Author:Gordon, Nicole A.
 
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I. INTRODUCTION: WHAT LEGAL REFORMS REMAIN VIABLE POST-CITIZENS UNITED?

For those concerned with the pressing matter of the influence of money on politics, the 5-4 Citizens United (1) decision was a grave disappointment. (2) Citizens United approved corporations' rights to make independent political expenditures as a matter of First Amendment law. (3) Before Citizens United, corporations were not permitted, at the federal level and in about half the states, to finance electioneering communications. (4) Corporations could make limited political expenditures or fund "issue ads," which could not overtly advocate for the election or defeat of a specific candidate, even if these ads made it clear to the listener which candidate was supported. But they could do so only through political action committees ("PACs"). (5) Citizens United, however, permits corporations to make unlimited independent political expenditures explicitly in support of, or in opposition to, individual candidates. (6)

Citizens United and related cases (7) have led to unfortunate law as well as to psychological impetus resulting in extraordinary spending, especially by individuals. (8) Much of the actual increase in spending after the Citizens United cases has not been from publicly traded for-profit corporations or their PACs, as many feared would happen. (9) Instead, much of it has been from individuals, often through various routes that hide their identity, even though they had (cumbersome) ways of making political expenditures supporting individual candidates in the past. (10) The much-increased spending by individuals was undoubtedly spurred by a belief or sense that the Citizens United cases reflect the Supreme Court's endorsement of a virtual free-for-all for those of great means. (11) And, indeed, Justice Kennedy restricted the concept that "corruption," the justification relied upon in past Court decisions to limit political spending, cannot apply to "independent expenditures" in the absence of an overt quid pro quo, thus eviscerating a long history of broader interpretation of the justification for regulation of campaign finance. (12)

In the post-Citizens United campaign finance world, several major problems have been posed and exacerbated. Wealthy donors are able to exert greater influence in elections, which creates a greater potential for corruption. (13) The rise of "dark money" also makes accountability impossible. (14) Additionally, even in the absence of corruption, it is now even more difficult for average citizens to be heard or to run for office, thus allowing the interests of wealthy donors to distort policy priorities. (15)

The Citizens United cases, however, are not the end of campaign finance reform in the United States. (16) In fact, nearly all aspects of campaign finance reform remain, technically speaking, unaffected by the Citizens United cases, notwithstanding the many deficiencies in the current state of campaign finance law. (17) This includes the failure of the Congress, the Federal Election Commission ("FEC"), and the Internal Revenue Service ("IRS") to enact laws and rules (and police them) on disclosing permissible spending by 501(c)(4)s and coordinated spending. (18) And, of course, there remains the possibility that the Supreme Court will at some point overrule or limit the reach of Citizens United.

This article describes campaign finance reforms that remain viable after Citizens United, in the absence of a reversal of that case. These reforms include: (1) public financing; (2) preventing "coordinated" expenditures; (3) addressing defects in disclosure regimes and "dark money;" (4) contribution limits; and (5) effective enforcement. Reform in each of these areas can help ensure that average citizens' voices are not drowned out by moneyed interests that fund political campaigns. This article concludes that, among these potential reforms, reformers should prioritize establishing public funding programs--with the caveat that those programs must include effective enforcement mechanisms, which are vital to the success of any reform effort. At this time, reformers should also focus their efforts on the state and local levels, where opportunities for reform appear to be more promising than at the federal level. (19) Additionally, while reform efforts in all branches of government are desperately needed, concentrating on judicial elections in states that have them will be the strategy most likely to win reforms in the short term. (20)

II. MOST EFFECTIVE REFORMS TO PURSUE (ABSENT AN OVERRULING OF CITIZENS UNITED)

  1. Public Funding Programs to Increase Small Donor Influence--Unaffected by Citizens United

    * All levels of government should establish public funding programs;

    * Public funding should be contingent on the recipient's agreement to stipulated conditions, such as participation in public debates and limits on contributions from other sources; and

    * Laws establishing public funds programs should protect campaign finance agencies' budgets as well as the availability of public funding for candidates.

    1. Types of Public Funding

      Among the most important words for reformers in the field of money and politics that have been uttered by the current United States Supreme Court are those of Chief Justice Roberts in Arizona Free Enterprise (which post-dates Citizens United), (21) explaining that "governments 'may engage in public financing of election campaigns' and that doing so can further 'significant governmental interes[s],' such as the state interest in preventing corruption." (22) Arizona Free Enterprise thus affirms the constitutionality of matching funds and other public funding programs, (23) arguably the most important aspect of campaign finance reform. There are several forms of public funding programs, including: (a) matching funds; (b) "clean elections;" (c) tax rebates and credits; and (d) vouchers. (24)

      1. Matching Funds

        The matching funds model is a system by which the government provides matching funds for small private contributions that candidates collect. (25) Candidates voluntarily opt into these systems. (26) In some jurisdictions as much as $6 in public money matches $1 for up to $175 in private donations. (27) In order to demonstrate that the candidate has some public support, candidates must first collect a certain amount in private funds from small contributions before they are eligible to receive public funding. (28)

        There are several reasons to prefer the matching model, including a record of high participation in matching programs by candidates and incentives for small donors to make contributions throughout the campaign period. (29) Small donors thus have an opportunity for meaningful participation. (30) There is also evidence that has analyzed how the war chests of candidates in comparable districts compare when there is a matching system available and when there is not. (31) When a candidate participates in a matching system, the small contributions in combination with the public matching funds he or she receives can generate a very substantial proportion of his or her overall funding, and thus are extremely meaningful to the candidate. (32) These participating candidates are less dependent on large contributions from wealthy donors. (33) Where no such matching system exists for otherwise equivalent campaigns, the result is a war chest that relies heavily on high-end donors to the exclusion of "average" voters. (34) Making it easier for citizens with limited means to contribute to political campaigns may also encourage other civic behavior, including voting. (35)

        Numerous states and local governments have experimented with programs that match private citizens' contributions. For example, New York City, (36) Los Angeles, (37) and Tucson, Arizona (38) each have matching funds programs in place. A federal matching funds program, known as the Government by the People Act, (39) was proposed in Congress in 2014. (40) That bill was supported by many civic groups (41) and had 160 co-sponsors in the House, including one Republican co-sponsor. (42)

      2. Clean Elections

        "Clean elections" programs provide a flat grant that represents all or most of the funding that is permitted for election spending for the candidates who choose to join these programs. (43) Like matching programs, candidates typically must demonstrate their public support by collecting a certain number of small donations in order to qualify for public funding. (44) Maine was one of the first states to implement a clean elections program. (45) Other states, such as Connecticut (46) and Arizona, (47) have followed Maine's example. Although the Arizona Free Enterprise case significantly weakened Maine's regime (and others like it) by undermining the states' ability to provide escalating public funds for candidates who face high-spending opponents, (48) Maine voters recently approved measures to reinvigorate Maine's program by increasing the amount of public funding available and raising spending limits for publicly funded candidates. (49)

      3. Tax Rebates and Credits

        Tax rebates or credits for small contributions can be made available to donors who apply to the relevant agency for a refund. (50) Tax credits and tax refunds for campaign contributions have been used in several states, including Arkansas (51) and Minnesota. (52) For example, in Minnesota a taxpayer may claim a tax refund of up to $50 for qualified contributions. (53) Republican John Pudner of Alabama, whose "Take Back the Republic" organization supports campaign finance reform from a conservative viewpoint, favors tax credits. (54) Former Wisconsin Republican Congressman Tom Petri favors tax credits and tax deductions. (55)

        Tax credits, however, may favor only those individuals who earn enough to pay income taxes, unless the credits are properly structured. (56) If a credit may only be used to offset a taxpayer's existing tax liability, taxpayers who do not earn enough...

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