A new recipe for campaign finance reform

May 9, 2013

Bob Bauer is an attorney in private practice who has represented Obama for America and the Democratic National Committee. Trevor Potter is president and general counsel at the Campaign Legal Center and former Republican chairman of the Federal Election Commission. The views expressed are their own.

Four decades after the campaign finance reforms that followed Watergate, arguments over the role of money in politics seem increasingly tired and unproductive. We ought to build on the experience of recent years and consider what’s necessary for a new phase of political reform.

Reforms appear destined to fail unless they rest on three key points: They should focus not on further restricting funding for political activity but rather on broadening avenues of citizen participation; they should look beyond contributions to parties and candidates to take into account other ways that money influences politics, including through the intersection of lobbying and political funding; and they should be informed by the experiences of states and localities.

The current state of campaign finance forces candidates to invest large amounts of time and money to finance expensive campaigns and then to spend much of their time in office raising money for reelection instead of governing. Politicians spend an inordinate amount of time soliciting donations from wealthy individuals and organizations that, together, constitute less than one-half of 1 percent of the electorate. This financial base is likely to have or to be seen to have disproportionate legislative access and influence. Meanwhile, the remaining 99-plus percent of Americans are left looking in from the outside, and their trust in government is tested.

The situation worsened with the arrival of super PACs and other sharply escalated but lightly regulated spending. Super PACs and nonprofits operating alongside them can flood campaigns with unlimited, often undisclosed, money. In Citizens United and other rulings, the Supreme Court limited the room available to legislators in addressing these undisclosed sources, with a notable exception: the critical role it acknowledged for public disclosure in enabling “the electorate to make informed decisions and give proper weight to different speakers and messages.”

We need a fresh direction.

Fresh reform initiatives should center on expanding the range of citizens who can participate in the political process. Legislation should encourage and facilitate the technology-driven sea change in grass-roots politics. The last two presidential campaigns showed the power of digital grass-roots platforms for increasing the size of the donor pool and empowering donors to supplement their online giving with other avenues of involvement in the campaigns of their choice.

Other means of engaging citizens might include the matching-funds incentives offered in some states. For example, New York City offers matching funds at 6 to 1 for individuals contributing up to $175 — a program being considered for adoption statewide. Another option is for registered voters to get a voucher or return of their taxes worth, say, $100 that they can then give to a political organization or candidate. Such programs would stimulate citizen participation and encourage candidates to engage more of the electorate.

States experimenting with campaign finance and other political reforms should be viewed as the laboratories from which tested proposals may emerge. Several states, including Connecticut, Maryland, Minnesota and Montana, have taken the initiative. Connecticut’s 2006 reforms, known as the Citizens’ Election Program, provide public grants for candidates for state offices. Sixty-five percent of candidates participated during the 2012 elections, and 77 percent of the Connecticut General Assembly is composed of former CEP participants.

Discussion of campaign finance reform must also address the intersection and interdependence of lobbying and campaign giving, in addition to the revolving door between government and the private-sector lobby.

In the reforms that followed Watergate, election campaigns were the primary objects of regulation, resulting in a long-running dispute over regulatory burdens on free speech. In lobbying-law reform, questions about access to government and the transparency of the policymaking process come sharply into focus. These merit close study and the development of imaginative reform alternatives. The American Bar Association’s task force on federal lobbying laws proposed a number of options in 2011, including measures to limit lobbyist fundraising and bundling for the benefit of specific lawmakers they lobby.

The next generation of reform must focus less on taking the money out of politics and more on including and increasing the types of money available to our politics. It must heighten attention to lobbying activity and look to the most effective work in the states. In Federalist No. 10, James Madison voiced concerns about capture of the Republic by groups he called factions — what today are often called special interests. Madison’s concerns cannot be addressed by ridding ourselves of the money commanded by the most powerful and the most organized. But the ill effects can be mitigated by ensuring that a voice in the debate is within the reach of all.

Ann Telnaes animation: Justice Scalia on money in politics. (Ann Telnaes/The Washington Post)
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