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Congress Scrambles in Wake of Court’s Campaign Finance Ruling

Posted on Apr 17, 2010
AP / J. Scott Applewhite

By Stuart Whatley

(Page 4)

Malbin is one of the experts pushing for this new approach to campaign finance.  He looks at the history of Supreme Court rulings on the matter, the failure of restrictive legislative measures to truly stymie the flow of special interest money into elections and politics (there are always ways around restrictive laws, he points out), and the burden on non-wealthy or knowledgeable participants to navigate the sea of complex regulations and concludes that past campaign finance reform efforts have approached the situation from the wrong side.

Along with Anthony Corrado of Colby College, Thomas Mann of the Brookings Institution, and Norman Ornstein of the American Enterprise Institute-Brookings Election Reform Project, Malbin is the co-author of a paradigm-shifting report published this year—“Reform in an Age of Networked Campaigns”—that advocates “activating the many” instead of “focusing on attempts to further restrict the wealthy few.”  The authors put faith in the notion that “if enough people come into the system at the low end there may be less reason to worry about the top.”

A central proposal of the report’s reform recommendations is a public financing option very similar to the Durbin-Larson Fair Elections Act.  But there are also other policy measures for incentivizing small-scale donor participation that could garner wider support in the aftermath of Schumer-Van Hollen.

One is to make broadband access affordable to all.  Having demonstrated the profound effect of the Internet and social networking on electioneering during the 2008 presidential campaign, this is something the Obama administration is already working on this with its National Broadband Plan.  Alongside broadband access is a policy goal nebulously known as “network neutrality,” which advocates the regulation of Internet providers whose service would possibly discriminate against certain political or issue speech that threatens the company’s interests.  These efforts suffered a blow recently with a D.C. Circuit Appeals Court ruling that will now limit the FCC’s authority to regulate Web traffic.  However, if policy changes are made to reclassify Internet access as a “telecommunications service” instead of an “information service” then the FCC could regain some of its lost authority.


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Malbin and his colleagues also call for a central government website to host, “all electorally relevant material about political spending that is required to be disclosed under current law,” and for States and the federal government to provide free software to facilitate electronic disclosure filings that would be made immediately available to the public.  Despite hefty corporate and special interest resistance, ideas like these are trudging steadily forward in campaign finance policy discussions.  The Schumer-Val Hollen bill does seek to enhance corporate disclosure, but the efficacy of these measures would increase dramatically if this information were to be made more readily accessible to the general public through a central online clearinghouse.

But even if stricter disclosure regulations are accepted to be an effective deterrent, they still don’t do anything “to radically change things one way or the other,” Malbin says.  According to Malbin, the only ultimately effective counterbalance to corporate and special interest spending in elections is an expansion of the playing field to include “the many.”

For example, Malbin tells me that in most states it would only take 4 or 5 percent of the electorate giving $50 each to introduce meaningful balance to elections for Governor and the State legislature.  He has the numbers to prove it.  Policy measures as simple as rebates or tax refunds for low-income donors, individual contributions limits to give small-scale donors more weight against the wealthiest, and publicly funded contribution matching that applies only to small donations have all demonstrated promise for successful implementation.  A new interactive tool on the Campaign Finance Institute website puts some to the test.  Using data from the 2006 election cycle, with the state of New York as an example, if the government matches small donations ($100 or less) at a rate of 3-to-1, it more than doubles the distribution of contributions from this donor group from 4 percent to 10 percent.


When public contribution matching only for small donations increases to 5-to-1 the percentage of $100 or less funders more than triples, from 4 percent to 14 percent.



And when a 5-to-1 public matching only for small donations is complemented by a $2,000 individual contribution limit, the percentage of $100 or less funders more than quadruples, from 4 percent to 17 percent.



Malbin tells me that these ideas to activate and engage “the many” are beginning to take hold alongside the traditional instinct to just construct more temporary walls.  Most campaign finance proposals in the past year and a half—including the Durbin-Larson Fair Elections Act—are looking more towards implementing this approach.  However, the Schumer-Van Hollen response to Citizens United does not.  It’s far more politically tailored to the immediate outrage since January and intentionally forgoes pushing larger, more reformative measures.  For his part, Malbin sees this as an understandable approach, telling me, “I don’t think anybody would look at the Senate right now and think they could get 60 votes to pass [something like] the Fair Elections Act this year.” 

Nevertheless, he sees Schumer-Van Hollen—and the likely floor vote on Larson’s Fair Elections amendment especially—as at least a symbolic political gesture.  If the Democratic leadership continues forward with corollary efforts—such as for affordable broadband access, network neutrality, and a streamlined electronic disclosure process; and if Members in Congress continue to hone policy proposals and political rhetoric towards incentivizing small donors instead of continuing the endless corporate/special interest regulatory chase, then the future could be brighter than what many cynics would have one believe. 

The Internet—and social networking especially—has broken down traditional barriers to accessing information and propounding ideas more thoroughly than any other factor in modern history.  The new media elements operative in Barack Obama’s 2008 presidential victory will only matter increasingly more going forward, regardless of whether the Supreme Court continues to open more doors for corporate electioneering.  And even in today’s intractable political climate, measures that supplant what is seen as plutocracy with democracy can be sold to both sides of the aisle (as the presence of moderate figures like Specter and retiring centrist Senator Evan Bayh on the Fair Elections sponsor list suggests).  The slowly growing consensus among those who are actually in a position to return balance to American elections bodes well for the voice of the “many,” at least in the long run.  But they will likely need political diligence and constant reminders to see it through.

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By AT, April 19, 2010 at 12:36 pm Link to this comment
(Unregistered commenter)

Proposition 16 is another deceptive ad churned out by the republican noise machine, it’s not about your right to vote but it’s about privatization.Pretty much like Meg Whitman who could distinguish between privet and public goods. And the US chamber of commerce is a criminal enterprise who decide to get into California politics, is it the Chamber of Commerce or the Republican Board of Governors?

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By christian96, April 18, 2010 at 6:17 pm Link to this comment

Gerard—-I’m afraid Rae is correct.  You’ll find
most youngsters vocabulary will contain a lot of
“I, me, mine, and my”, most of which has been
conditioned by the media.  I just heard Pres. Clinton
a few hours ago say, “We can’t demonize congress.”
WOW! He must have read my previous comments.  I’ve
read that he aspires to be President of The New World
Order.  We can’t rule him out for the Antichrist yet!

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RAE's avatar

By RAE, April 18, 2010 at 2:50 pm Link to this comment

Right you are, gerard. Most of the good things don’t get press.

My guess is that your research into the younger generation will surface few surprises. A MINORITY will be serious-minded, intelligent, insightful and effective individuals in spite of their handicap of having to cope with a hapless education system whose chief purpose is not to educate socratically but to inculcate a societal conditioning intent on producing obedient, non-thinking consumers.

That leaves the MAJORITY whose chief concerns are what to wear, what non-talent “singer” is “way cool” this week, what vehicle to own complete with whatever is the loudest, most annoying muffler, how to get a job that requires few skills and little time but pays the wages of a Senator, how to get their hands on the latest “texting” technology and last, but by no means least, how to alienate almost everyone their parents’ ages and older with their disrespect and self-centered behavior. Notice I didn’t mention plan for the future or contribute to society.

I hope your research proves me dead wrong.

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By gerard, April 18, 2010 at 11:38 am Link to this comment

Dear Rae:  Remember, the good things don’t get the press.  For some time I’ve been thinking I should do some serious research on what’s going on at the younger level. I hear good things and bad things and things impossible to evaluate or predict.  If I decide to take the time to do the work, I’ll put some of it online here in the near future.

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By RAE, April 18, 2010 at 10:54 am Link to this comment

gerard, you have more faith in the younger generation’s ability to “fix things” than I do.

Because the majority of them seem to have zero interest in “history” they are doomed to repeat it.

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By gerard, April 18, 2010 at 9:10 am Link to this comment

Well, Christian96 proves my point:  Talking Armageddon Bible style is no different from talking Armageddon political style.

Yes, we have huge problems, == but Rae, for instance, puts forth good suggestions, as do others from time to time.  So there are things to be done.
And people are not all entirely bad—in fact, at times and in all kinds of interesting ways they have been wonderful and good—individually and in small groups.  There’s a hope.

Maybe the Teabaggers are the lumpen=proletariat beginnings of a significant rumble.  What’s missing?
Intelligent creativity. 

Personally, I’d give a great deal if I could turn back the clock. Unfortunately, I’m halfway through my 90s and almost too old to get out of bed in the morning! Fortunately, I have my brain!  But the rest of me is pretty tired out.  It has to be younger people—younger than Teabaggers—who are so yesterday!  But kids can and will come through, and it’s up to people like you and me to cheer them on, even though our own hearts are breaking.

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By christian96, April 18, 2010 at 6:55 am Link to this comment

For decades pundits have been saying that the New Orleans Saints were so bad at playing football that Hell would freeze over if the Saints would ever win The Super Bowl.

On Sunday,  February 7, 2010,  the Saints won the Super Bowl.

On that same Sunday Washington D.C.  was paralyzed under several feet of snow and the Government was shut down.

Do you think this indicates the actual location of Hell?

Washington isn’t the location of hell but it has
become the home of Satan and his demons possessing
those who reside on Capitol Hill.  Think about it.
If you were Satan and you wanted to have your greatest impact where would you possess people?
Washington, New York, and Los Angeles, the home of
porn, movies, and television programs corrupting
people, especially children, around the globe. I saw
porn shops in Jerusalem when I was there in 1999.
God only knows the influence of those porn shops in
the last eleven years.  Speaking of God.  Have you
noticed the increase in earthquakes, volcanic eruptions, and other disasters lately.  I live in
South Florida.  I know the hurricanes are coming
this season.  When they do I’ll just throw on my
shutters and head out of Dodge.  Strap on your life
vests.  Things are going to get real bad here on earth.

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By ThaddeusStevens, April 18, 2010 at 6:35 am Link to this comment
By Shift, April 18 at 7:15 am
‘The Congress is failing’
I agree completely and wholeheartedly.
All of the things you mention are true and a response to those is the basis of a New Progressive Party’s platform.

1. Environmental purity and human safety should be placed above all other considerations. A toxic environment is resulting in huge increases in health costs. Supposed economic considerations for allowing toxins to be spread around are usually based on rigged accounting methods which fail to look at the long view.

2. Websites like,, and are doing an excellent job in keeping the torch of old school Liberalism alive, (a.k.a. the Democrats like FDR, Eleanor Roosevelt and Adlai Stephenson ). These subscriber supported websites are generally free of commercial sponsorship and offer chance to get at the real news; often, this is via the comments after an article. What the Supreme Court says and whatever the Congress does or fails to do will not change the status of these freely flourishing sources of information.

3. When a homeowner looks at his home and finds an hole in his roof that has been the cause of a great deal of structural damage, he may decide to move out to a different house or build a new one. We as members of a progressive society cannot move to a new continent or planet but we can rebuild the society we currently live in. The place to start this rebuilding is at the municipal and state level.

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By RAE, April 18, 2010 at 6:30 am Link to this comment

The sooner the better, Shift… the sooner the better.

Anyone with half a brain could easily have concluded the economic deck of cards that is Capitalism is guaranteed to collapse at some point. But the greedy sociopaths who claw their way to the top of the various enterprises and who are hauling riches away by the truckload aren’t about to let ANYONE change the system. They couldn’t give a rat’s ass about the millions who are getting screwed in the process.

Too bad there isn’t anyone or any agency with the authority or courage to get a posse together and round up these malignant criminals. But it wouldn’t really matter - before their cells doors slammed shut behind them a new generation of vermin would be chewing away at the cheese. It’s just the way we are.

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By Shift, April 18, 2010 at 3:15 am Link to this comment

The Congress is failing.  The rapid pace of change is growing exponentially while Congress remains ineffective.  Issues remain unresolved or only partially resolved.  The piling up of unresolved problems is leading to one derailing after another.  The foreclosure problem remains unresolved.  The toxic assets remain on the books.  Middle Class insurance premiums are set to escalate significantly.  The bloated military budget is unsustainable yet we continue to fight two wars and increase the number of foreign military bases past the one thousand mark.  Unemployment remains dangerously high.  Tax policy favors the rich.  Climate change continues to degrade.  Super bugs are on the rise while medications to combat them are scarce to nonexistent.  Nano has entered the foods we eat with inadequate labeling or testing effectively making the population unwilling participants in experimentation.  Fresh water is increasingly scarce.  The outcomes of these deficiencies will pile up and eventually overwhelm us.  We are setting ourselves up for collapse.  The triggers are so numerous and the problems so interrelated that one trigger can lead to a serious meltdown.

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By glider, April 17, 2010 at 5:10 pm Link to this comment

All 3 branches of our “representative” government are largely Corporate Whores.  The 4th branch, the corporate owned “Media”, is yet another Corporate Whore serving their Elitist Pimps.  Corporatocracy has been realized.  The only question is how much this may be ameliorated by a pissed off public, if they can figure out what is happening given the circumstances.  The clueless “Tea Baggers” suggest not.

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By RAE, April 17, 2010 at 3:41 pm Link to this comment

I don’t suppose revising the rules as follows would get much play:

1. All bona fide candidates in a constituency would be granted an EQUAL amount of money from the public purse based on the wishes of the population of that constituency.

2. No other funds in cash or in kind, no services or support of any nature may be provided to or used by any candidate beyond the value of the “allotment.”

3. Any free media exposure given to one candidate must be offered to all in an equal amount.

4. No public media may refuse to carry a candidate’s message for any reason except inability to pay for it out of the “allotment” funds.

4. Any individual, group or corporation that provided or even approached a candidate with support of any kind would, upon conviction, be guilty of a criminal offense and subject to severe penalties. For example, no full page ads supporting “your” candidate. However, reason must prevail. If a citizen was asked who he/she supported and why in a sound-bite type interview, OK but no documentaries or other significant productions would be allowed except and unless funded out of the candidates “allotment.”

I’m not a lawyer and likely have left enough loopholes in my “law” to drive a truck through. Nonetheless I hope my intention to provide candidates with a level playing field from the start is clear. Now, what each candidate does with the resources provided is up to him/her. Hell, a candidate could divvy up the cash amongst his/her constituents for all I care. Use it as you wish but you get to use no more… not even your own money.

Far too simple and fair… right?

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By gerard, April 17, 2010 at 2:55 pm Link to this comment

In McChesney and Nichols’ new book “The Death and Life of American Journalism,” they make a strong case for the fact that the Founders (particularly Jefferson and Madison) foresaw the dangers of privately-owned media and were careful to explicitly state that such ownership was in direct opposition to “freedom of the press” envisioned in the Constitution.
  Read the book, but here’s just a small taste relevant to the recent Supreme Court dictat that corporations can legally dominate elections through contributions to candidates—an idea that would have horrified even the most patrician of the Founders.
  “...The one universally accepted premise was that the government needed to heavily subsidize the creation and development of the press if the constitutional system were to succeed.  There was no notion in the early Republic, not a single solitary voice anywhere, that the press should be left to “the market” and that commercial auspices could effectively and efficiently guide journalism as long as the heavy hand of the state remained out of the way… The idea that Americans should roll the dice and hope rich people would find it profitable to produce the journalism required for a constitutional republic to succeed was simply unimaginable….” (p117-18)
  The idea proposed in the book is that government must subsidize a public press so that the people can get enough reliable information to run their government.  This idea seems anathema to us now, when we see what botches government makes regarding the public interest, but it is likely the hidden hand of corporate money is causing most of the botches for which government is taking the fall.
  At any rate, we need to recognize how far from “liberty and justice for all” the domination of media by corporate power has taken us. The Court’s recent ruling will vault “free speech” into outer space!

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