Saving democracy: a blueprint for reform in the post-Citizens United era.

• Author: Benson, Jocelyn

ABSTRACT

Since the founding of our democracy, attempts to curb the influence of money in the political process consistently fall short of their goal. In fact, a growing number of cynics see campaign finance reform--or any effort to reduce the impact of money in the political process--as inherently doomed to fail. With the recent dearth of meaningful campaign finance reform on the federal level in the post-Citizens United era, reform advocates must look to the states to explore and enact changes to the law that will promote a healthier role for money in politics. This Article reviews efforts to reform government in response to a growing body of U.S. Supreme Court jurisprudence eliminating existing campaign finance regulations. It analyzes four of the reforms gaining the most attention through the lens of how effectively each one advances one of the four primary interests that must drive the regulation of money in politics. Those interests, described in Part I of the Article, are (1) The Equality Interest; (2) The Information Interest; (3) The Participation Interest; and (4) The Anti-Corruption Interest. The Article ultimately asserts that each proposal, if championed alone, falls short of achieving reformers' overall goal of a democracy that serves these four interests. It further contends that effective reform can only succeed at furthering the above interests if it is a comprehensive combination of all of the proposals. The Article concludes with a proposed road map towards advancing all reforms.

Introduction I. The Goal A. The Equality Interest: A Government of, by, and for the People B. The Information Interest: Preserving a Well-Informed Electorate C. The Participation Interest: Voters Need to Believe in the Process to be Engaged D. The Anti-Corruption Interest: Democracy Is Not for Sale II. The Reforms A. Reform 1: Disclosure and the Information Interest B. Reform 2: Citizen-Financed Elections and the Equality Interest C. Reform 3: Shareholder Protections and the Anticorruption Interest D. Reform 4: Move to Amend and the Participation Interest III. Roadmap to Change A. Recommendation 1: A Comprehensive Plan B. Recommendation 2: States as the Laboratories for Reform C. Recommendation 3: Broad-Based Citizen-Led Coalition of Support Conclusion Introduction

Since the founding of our democracy, attempts to curb the influence of money in the political process consistently fall short of their goal. In fact, a growing number of cynics see campaign finance reform--or any effort to reduce the impact of money in the political process--as inherently doomed to fail. The bulk of their argument is based upon the view that money is like water, and it will always find a way to influence the political ecosystem no matter how many barriers or regulations seek to mitigate that influence. (1)

But that view itself is not sufficient to reject wholesale ongoing attempts to improve democracy through reforms that will mitigate or even redirect the flow of money into a useful role in the political process. (2) Such attempts are particularly critical at this stage of our electoral system. The first century of our democracy was marked by wars over its strength and unification. The second focused on expanding the electorate through extending the franchise to additional groups of citizens. But the third, beginning roughly in the 1970s, has thus far been dominated by a discussion of how to regulate the role of money and financial interests in the political arena. That discussion has only increased in intensity in the years following the U.S. Supreme Court's 2010 decision in Citizens United v. FEC, (3) which widened the floodgates for money from corporate treasuries to flow into our democracy.

This Article examines the myriad of state and federal efforts in the years since Citizens United that attempt to blunt the force of the decision or in other ways minimize the influence of money in American elections. It begins first with an examination of the various interests of a healthy democracy that any regulatory system should seek to uphold. In an effort to assess and construct the ideal, Part I seeks to answer the question: what is the "end goal" of political reformers and democratic defenders? What are the values of a system in which elections are "clean?"

Part II examines several possible reforms through the lens of both their legality and practicality, and their potential to further the interests established and discussed in Part I. These reforms, ranging from disclosure requirements to citizen financing of campaigns to amending the U.S. Constitution, have each gathered steam in recent years, particularly after Citizens United This section seeks to analyze each in turn and evaluate whether and how an individual reform can accomplish the interests established in Part I.

Part III focuses on how elements of each proposed change can and must combine into a larger, broader, and more comprehensive reform strategy. In recognizing the importance of holistic reform to legitimately further the interests described in Part I, this section argues that such an approach is only possible if it originates through state-based, citizen-led coalitions that can work through petition processes and other methods.

1. The Goal

   Before we can examine and analyze several proposed reforms, it is important to establish overall the goals that regulating political money should achieve. In other words: What is the endgame? What are the characteristics of an ideal system?

   This section proposes four interests that any effort should seek to further and describes how current federal case law and other elements have combined in recent years to frustrate these interests. These four interests, while only partially recognized in current jurisprudence as compelling governmental interests justifying campaign finance regulations, are essential to protecting the fabric of a democracy that relies on participation and adequate representation.

   1. The Equality Interest: A Government of, by, and for the People

      The first, the "Equality" interest, suggests that everyone deserves an equal chance at influencing the political process. Taken further, government should be "of, by, and for the people" and making decisions to advance the best interests of the electorate. (4) And when that happens, substantive work of a governmental body should ideally align with the substantive goals of the electorate. To that end, all voices, perspectives and viewpoints should, as much as practically possible, be represented and reflected in the governing body, and money should not be able to convert economic power into political power. (5) The interest also assumes that the consistent absence of some perspectives, or the continual amplification of some "special" interests over others, will dampen the ability of a democracy to be truly representative. (6)

      Ensuring that private interests "could not seize control of the government and use its power for their private benefit" was a key interest of the founding fathers. (7) In particular, in Federalist Paper No. 10, James Madison wrote extensively on the importance of ensuring that the government would not fall to the control of "factions." (8) More than 200 years later, U.S. Senator Tom Udall and others have observed that the "interests of corporations are exceedingly well represented in the public debate." (9) Noting that he fully supports "corporate involvement in our public dialogue," his fear is that it may "lead to corruption or drown out the voices of individual citizens." (10) But the "real danger" of unlimited, unrestrained spending to influence elections, he writes, is that it gives entities who can afford it "[t]he power to control the political dialogue of campaigns" and the legislative process. (11) As a result, he observes, "elected officials legislate on behalf of corporations, unions, and other powerful organizations instead of their constituents." (12)

      Indeed, it was out of this desire to quell the undue influence of a select few over the policymaking for the many that compelled the first regulations of money in the political system. (13) In the mid- to late 1800s, several banks and corporations began spending money to influence the election of candidates that would serve their interests. (14) Before long, political leaders began calling for a prohibition on corporate donations to campaigns. One leading political activist in 1894, Elihu Root, called for a prohibition on corporate political giving--specifically to prevent undue influence from this growing wealthy faction over the public policy activities of the federal government. The goal of such a prohibition, he declared, would be to stop

      the great railroad companies, the great insurance companies, the great telephone companies, the great aggregations of wealth from using their corporate funds, directly or indirectly, to send members of the legislature to these halls in order to vote for their protection and the advancement of their interests against those of the public. (15) Soon after, Congress passed the first federal law to regulate spending on elections, the Tillman Act, (16) which banned corporations and banks from making direct contributions to candidates and political campaigns.

      But in the century that followed, special interest funding found other ways to exert undue influence in a way that would influence policymaking. (17) In particular, if corporations and unions could not make direct contributions to candidates and campaigns, they simply spent their money directly on commercials or other types of communication. (18) Ultimately, the U.S. Supreme Court held that as long as these expenditures were made independently and without any coordination with the campaigns, they were not considered campaign contributions and therefore were permissible. (19)

      Today, whether political money flows through independent expenditures or direct contributions, the bulk of it originates from...