June 18, 2013
Congress Scrambles in Wake of Court’s Campaign Finance Ruling
Posted on Apr 17, 2010
Lessig is a staunch proponent of the Durbin-Larson Fair Elections Now Act, and for amending the Constitution to give Congress sole power over campaign finance laws. The Fair Elections Act is essentially the “public option” for electoral fundraising. It was introduced in March 2009 by Democratic Party Whip Richard Durbin and then-Republican Senator Arlen Specter and would provide voluntary public campaign financing to candidates who reach a certain dollar amount through small contributions of $100 or less. Once one opts in, he or she receives funding both for the primary and general elections, as well as a few other perks, such as broadcast advertising subsidies.
In an essay shortly following the Citizens United ruling, Lessig praised the Fair Elections proposal as a means for providing “an immediate balance to the deluge of corporate funding that this next election will now see. More importantly, it will give candidates a way to fight that deluge without themselves becoming even more dependent upon private, special interest funding. No other reform—including reforms that try effectively to reverse Citizens United—could be as important just now. No other reform should distract us from pushing strongly to get Congress to pass this statute now.”
Those crafting the Schumer-Van Hollen bill will tell you that the Fair Elections Act has no chance of making it to the president’s desk at this juncture. Nevertheless, Congressman John Larson, its House-side sponsor and Chairman of the House Democratic caucus, may propose it as an amendment. With 141 co-sponsors in the House, it’s hardly a pipe dream. The problem is in the Senate, where it has but 10 co-sponsors (a list that is noteably lacking Schumer’s name).
It’s not politically unreasonable that the Democratic leadership is proceeding cautiously and in narrow terms. No system is overhauled in a single stroke, and they’re legislating within the parameters of what is admittedly a difficult political environment. The result is that the Schumer-Van Hollen bill will likely be exceedingly limited in its effect on political spending; and most with whom I spoke regard it more as an obligatory political gesture than anything else.
At best, the new regulations may theoretically lend slightly more transparency to the paper trail of campaign monies through more disclosure and the Stand By Your Ad provision for CEOs. But even this is seen as wishful thinking by some. In response to stricter disclosure rules, Lessig points to Marcos Chaman and Ethan Kaplan’s Iceberg Theory of Campaign Contributions, which demonstrates that special interests don’t actually need to run election ads when the mere threat of doing so will suffice. As Lessig notes, “those threats are not disclosed.”
This is also an area where Briffault agrees, telling me, “I suppose that some people think that the disclosure and disclaimer requirements ... will reduce corporate spending. I doubt that it will. I think the law does as much as the Supreme Court will allow, but for those who think that corporate spending is the problem, this bill won’t and can’t stop that.”
Most other provisions in the bill are said to fall similarly short. According to Lessig, the campaign-corporation coordination ban looks good on paper, but is more or less meaningless in the Internet age. The same can be said for the ban on foreign influence. As Loyola Law School professor and author of the Election Law Blog Rick Hasen tells me, there is a trade off between having the bill withstand judicial challenge, on the one hand, and having it provide truly effective regulation on the other. According to Hasen, “if ‘foreign’ corporation is defined broadly, it will be unconstitutional; if defined narrowly, it won’t do much.”
For many observers, the worst case scenario is that our political leaders will convince themselves that they have adequately addressed what the Court’s ruling in FEC v. Massachusetts Citizens for Life, Inc. (1986) described as the “corrosive and distorting effects of immense aggregations of wealth that are accumulated with the help of the corporate form and that have little or no correlation to the public’s support for the corporation’s political ideas.”
The current political stalemate is quite familiar in the history of the campaign finance debate. The Roberts Court has made it abundantly clear that free speech trumps all else in its rulings. As Briffault wrote in a 2008 Brookings Institution essay, describing the Court’s 2007 ruling in Wisconsin Right to Life v. FEC: “WRTL also abandoned [the] view that in campaign finance cases the Court should reconcile and balance free speech values with other concerns like political integrity, the promotion of democracy, and respect for Congress’s efforts to balance these goals. Instead, Roberts’s opinion framed the case entirely from a First Amendment perspective. It was not about the rules governing the corporate role in financing elections but simply ‘about political speech.’”
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