Beyond the DISCLOSE Act: What else could Congress do on campaign finance?

July 20, 2012

This post has been edited to clarify Common Cause's views on matching finance systems.


Bruce Ackerman and Ian Ayres -- Yale Law School

Two days ago, Senate Republicans successfully filibustered the DISCLOSE Act, which had previously failed to make it past cloture twice in 2010. Written by former DCCC chair Chris Van Hollen, the bill would require super-PACs created in the wake of the Supreme Court's decision in Citizens United to disclose their donors. The proposal reflects the consensus view among campaign finance reformers that making campaigns and third party groups disclose their contributors will make those campaigns and groups more accountable to public opinion.

But some reformers have come up with an idea that points in the exact opposite direction: By making donations more secret, they hope to break politicians of their dependency on megadonors. Yale law professors Bruce Ackerman and Ian Ayres, in their 2004 book "Voting with Dollars," proposed making campaign donations secret the same way votes are. Specifically, they would set up a public financing system in which all eligible voters have a $50 voucher that they can donate to a campaign of their choosing, but to be eligible for the vouchers, campaigns have to agree to the FEC establishing a blind trust into which all their contributions are placed.

The idea is that quid pro quo only works if legislators know who's paying them. If they don't know to whom they're indebted, no donors can exercise sway. And because most of their donors will be voters donating very small amounts, their self-interest in donation terms is aligned with the desires of the registered voters making the donations.

But the Ackerman-Ayres proposal is eight years old now and, most importantly, was developed before the Citizens United ruling upended the status quo on campaign finance. Ayres tells me he stands by the proposal, but only if it is possible to cap donations. Otherwise, you run the risk of, say, Sheldon Adelson telling Newt Gingrich he's about to donate $1 billion, Gingrich's blind trust increasing in value by $1 billion, and the principle of donor anonymity being totally subverted. If Adelson can only donate $2,500, however, his donation will get lost in the shuffle.

Given that the Supreme Court has ruled that caps on donations to super-PACs are unconstitutional, the DISCLOSE Act is a good change, Ayres says. Unless and until the ruling is overturned, that's the best that can be done on third-party groups. As for a constitutional amendment to overturn Citizens United, he says, "It’s both quixotic and a good thing to be organizing around."

But representatives of two of the biggest lobbies for campaign finance reform think the Ackerman/Ayres plan is unworkable. Fred Wertheimer, founder and president of Democracy 21, argues it's unenforceable. "The people who put up the money will know who put up the money," he notes. "I have not been convinced that the beneficiaries of the money will never know it." He prefers fixing the presidential public financing system by passing van Hollen's Presidential Financing Act, which would dramatically increase the matching funds available to candidates, and expanding it to Congressional elections.

Mary Boyle, vice president for communications at Common Cause, agrees that the Ackerman/Ayres approach won't work. "[Ackerman/Ayres] is creative thinking to get at an issue that all reformers are trying to get at, which is how to engage a much much broader segment of our population in the political process," she says, but, "The anonymity thing, I’m not sure how you would ever enforce that. More importantly, it’s not the $50 contributions that corrupt people."

Common Cause prefers the Fair Elections Now Act, which has been cosponsored by 16 Senators and 100 Congressmen, and is backed by a coalition including the AFL-CIO, MoveOn.org, Sierra Club, the NAACP and many others. The bill would establish a "clean elections" system similar to those in place in Arizona and Maine (pdf), in which candidates who collect a certain number of small donations and agree to only rely on public funds and donations of $100 or less from their districts or states receive a lump sum grant for the primary and general election. "We think it’s something that could at some point get through Congress," Boyle explains. While the Fair Elections Now Act includes a limited matching system, one like the one used in presidential elections, she argues, is not a real contender: "The presidential financing system...is attractive to no one."

Of the activists I talked to, Larry Lessig -- the Harvard law professor who also runs the anti-corruption group Rootstrikers -- was the most sympathetic to Ackerman/Ayres. He reiterated his support for the $50 donation voucher element of the plan, but was more skeptical of the anonymity provision. "I believe that, in fact, the anonymous donor booth would prevent influence peddling," Lessig says. "But I’m not convinced people would understand it." Given that, he judges it unviable, both because of its political untenability and because it would fail to convince Americans it was working. He also worries it would work too well, noting that a similar system for Florida judicial elections resulted in campaigns not being able to raise sufficient funds.

He does think the donation voucher is far preferable to matching and clean elections systems, which both force taxpayers to subsidize other peoples' speech. What's more, vouchers would greatly expand the currently tiny number of Americans who give to campaigns. Even if the United States adopted a matching system for Congressional elections, Lessig says, "That still is a system where a tiny tiny fraction of Americans are funding elections as opposed to what we need which is a system where everyone is involved in funding, where 50 to 60 to 70 percent of Americans are involved in the funding of elections."

Ackerman thinks concerns about the plan's unenforceability are overblown. "Our original idea was a randomizer," he explains. "If I give the super-PAC a very large share of the money in the period, the amount doesn’t appear in the blind trust on the same day but a randomizer distributes it over N days." That way, if there are multiples donors to a campaign or super-PAC, anonymous donating obscures who gave what. This, Ackerman concedes, won't stop individuals from putting up ads that are entirely self-funded, but it does stop them from banding together.

I asked Ackerman if, given the current circumstances, he thought the DISCLOSE act was a good idea. "Sure," he replied. "I think my idea’s better."

SECTION: {section=business, subsection=null}!!!
INITIAL commentConfig: {includereply=true, canvas_permalink_id=washpost.com/8bvh5zpd9k, allow_comments=true, commentmaxlength=2000, includeshare=true, display_comments=true, canvas_permalink_app_instance=m6yzjj840m, display_more=true, moderationrequired=false, includefeaturenotification=true, canvas_allcomments_id=washpost.com/km4ey0dajm, comments_period=14, defaultsort=reverseChronological, includevoteofftopic=false, allow_videos=false, includesorts=true, markerdisplay=post_commenter:Post Commenter|staff:Post Writer|top_commenter:Post Forum|top_local:Washingtologist|top_sports:SuperFan|fact_checker:Fact Checker|post_recommended:Post Recommended|world_watcher:World Watcher|cultuer_connoisseur:Culture Connoisseur|weather_watcher:Capital Weather Watcher|post_contributor:Post Contributor, childrenitemsperpage=3, includeheader=true, includeverifiedcommenters=true, defaulttab=all, includerecommend=true, includereport=true, maxitemstop=2, source=washpost.com, allow_photos=false, maxitems=7, display_ugc_photos=false, includepause=true, canvas_allcomments_app_instance=6634zxcgfd, includepermalink=false}!!!

UGC FROM ARTICLE: !!!

FINAL commentConfig: {includereply=true, canvas_permalink_id=washpost.com/8bvh5zpd9k, allow_comments=true, commentmaxlength=2000, includeshare=true, display_comments=true, canvas_permalink_app_instance=m6yzjj840m, display_more=true, moderationrequired=false, includefeaturenotification=true, canvas_allcomments_id=washpost.com/km4ey0dajm, comments_period=14, defaultsort=reverseChronological, includevoteofftopic=false, allow_videos=false, includesorts=true, markerdisplay=post_commenter:Post Commenter|staff:Post Writer|top_commenter:Post Forum|top_local:Washingtologist|top_sports:SuperFan|fact_checker:Fact Checker|post_recommended:Post Recommended|world_watcher:World Watcher|cultuer_connoisseur:Culture Connoisseur|weather_watcher:Capital Weather Watcher|post_contributor:Post Contributor, childrenitemsperpage=3, includeheader=true, includeverifiedcommenters=true, defaulttab=all, includerecommend=true, includereport=true, maxitemstop=2, source=washpost.com, allow_photos=false, maxitems=7, display_ugc_photos=false, includepause=true, canvas_allcomments_app_instance=6634zxcgfd, includepermalink=false}!!
Comments
SECTION: {section=business, subsection=null}!!!
INITIAL commentConfig: {includereply=true, canvas_permalink_id=washpost.com/8bvh5zpd9k, allow_comments=true, commentmaxlength=2000, includeshare=true, display_comments=true, canvas_permalink_app_instance=m6yzjj840m, display_more=true, moderationrequired=false, includefeaturenotification=true, canvas_allcomments_id=washpost.com/km4ey0dajm, comments_period=14, defaultsort=reverseChronological, includevoteofftopic=false, allow_videos=false, includesorts=true, markerdisplay=post_commenter:Post Commenter|staff:Post Writer|top_commenter:Post Forum|top_local:Washingtologist|top_sports:SuperFan|fact_checker:Fact Checker|post_recommended:Post Recommended|world_watcher:World Watcher|cultuer_connoisseur:Culture Connoisseur|weather_watcher:Capital Weather Watcher|post_contributor:Post Contributor, childrenitemsperpage=3, includeheader=true, includeverifiedcommenters=true, defaulttab=all, includerecommend=true, includereport=true, maxitemstop=2, source=washpost.com, allow_photos=false, maxitems=7, display_ugc_photos=false, includepause=true, canvas_allcomments_app_instance=6634zxcgfd, includepermalink=false}!!!

UGC FROM ARTICLE: !!!

FINAL commentConfig: {includereply=true, canvas_permalink_id=washpost.com/8bvh5zpd9k, allow_comments=true, commentmaxlength=2000, includeshare=true, display_comments=true, canvas_permalink_app_instance=m6yzjj840m, display_more=true, moderationrequired=false, includefeaturenotification=true, canvas_allcomments_id=washpost.com/km4ey0dajm, comments_period=14, defaultsort=reverseChronological, includevoteofftopic=false, allow_videos=false, includesorts=true, markerdisplay=post_commenter:Post Commenter|staff:Post Writer|top_commenter:Post Forum|top_local:Washingtologist|top_sports:SuperFan|fact_checker:Fact Checker|post_recommended:Post Recommended|world_watcher:World Watcher|cultuer_connoisseur:Culture Connoisseur|weather_watcher:Capital Weather Watcher|post_contributor:Post Contributor, childrenitemsperpage=3, includeheader=true, includeverifiedcommenters=true, defaulttab=all, includerecommend=true, includereport=true, maxitemstop=2, source=washpost.com, allow_photos=false, maxitems=7, display_ugc_photos=false, includepause=true, canvas_allcomments_app_instance=6634zxcgfd, includepermalink=false}!!
Show Comments
Most Read Business
Next Story
Suzy Khimm · July 20, 2012