Fordham Law


The Supreme Court Leaves a Void in Campaign Finance Law

Zephyr Teachout in The Washington Post, April 03, 2014

Media Source

Zephyr Teachout is a law professor at Fordham University and the author of the book “Corruption in America,” to be released in September.

Since the founding of our country, we’ve had the same problem with campaign finance law: We’ve banned bad systems but we haven’t built good systems.

We’ve enacted hundreds of laws to criminalize dangerous practices. We’ve outlawed million-dollar donations and unlimited corporate spending. These are important bans. The Supreme Court was wrong Wednesday to strike down the ban on aggregate donation limits. Its decision in McCutcheon v. FEC showed a weak understanding of the history of corruption laws and political culture.

But the legislative branch has to take some responsibility. Relying on bans is akin to continually passing seat-belt laws that keep getting struck down while never building safe cars.

We should take this McCutcheon moment to build a better democracy. The plans are there. Rep. John Sarbanes (D-Md.) has proposed something that would do more than fix flaws. H.R. 20, which he introduced in February, is designed around a belief that federal political campaigns should be directly funded by millions of passionate, but not wealthy, supporters. A proposal in New York would do a similar thing at the state level.

Funding campaigns has always been problematic. Our first six presidents were Founding Fathers or one of their sons. Popular campaigning and the modern political party began with Andrew Jackson in 1828. For the next 50 years, campaigns were partially funded by job seekers. Successful candidates would give jobs to supporters, and the employees paid an “assessment” — a fraction of their income — to fund the campaigns. After James Garfield was shot by an unhappy spoils-seeker, Congress passed the Pendleton Act outlawing this system.

Corporations flooded into the gap and were the primary funders of campaigns during one of the most unequal and shameful times in U.S. history, 1880 to 1900. After decades of corporate excess, Teddy Roosevelt pushed through Congress the Tillman Act, banning direct corporate donations. Even with loopholes, the law changed the culture, and corporate spending in campaigns plummeted.

For the next 70 years, political parties, organized groups, wealthy individuals and a powerful popular press funded campaigns. But after Watergate showed the abuses of that system — private slush funds — we decided as a country to limit individual contributions and total expenditures and build a better enforcement system.

In 1976, the Supreme Court struck down spending limits; in 2010, it struck down all laws on corporate independent expenditures. In McCutcheon, the court has struck down aggregate limits on how much an individual can give, making it possible for one person to spend $2 million or $3 million.

This means we now have the worst of both worlds. The Supreme Court says we can’t ban things, but we haven’t built anything. This is what has produced today’s reality, in which candidates and members of Congress have to spend more than half of each workday raising money from the wealthy rather than, say, listening to constituent concerns and governing. And they live in constant fear that an attack ad from a super PAC will force them to spend even more time begging for money, just to get heard.

Our candidates don’t have to be beggars at the feet of oligarchs.

The Sarbanes law would match every voter’s small donation with a grant many times the amount of the donation. The program would give anyone willing to make a $50 contribution the power to be heard, and it would enable campaigns to run on donations from middle-class and poor citizens, not just the rich.

Public-funding systems transform candidates from beggars into statesmen. If they know that a small speech, heard by a few hundred people, can raise more money than 10 phone calls will, they’ll spend their afternoons with the people, making speeches, instead of in an office, making calls.

Experiments have already shown that it works and how it works best. Maine, Connecticut, Arizona, Massachusetts, North Carolina, New Mexico, New Jersey, Hawaii and West Virginia have all experimented with publicly funded elections. They have learned that they are most effective when every office’s election is publicly funded, so that candidates learn how to raise money by going to the people, and that it is better to give a public match only to in-state individuals and not to PACs or out-of-state donors. Big lobbyists don’t like this because they are used to getting meetings with candidates to whom their clients give money. We’ve also learned that more women and minorities run for office with a public-funding system.

It is time to take the experiment into big states and to Congress. We’ve outlawed three systems — patronage, direct corporate funding and unlimited individual funding — hoping that a good system would magically appear. Instead of outlawing more systems, we could actively endorse a system that would take away the corrupting threats posed by unlimited independent expenditures and the constant job of fundraising.

Read more on this issue: John Sarbanes and Nancy Pelosi: Reversing the grievous error of ‘Citizens United’ The Post’s View: Congress must stem the flow of campaign cash Trevor Potter: The Supreme Court needs to get smarter about politics George F. Will: Supreme Court can rescue another freedom in a campaign cash cas