By Jessica Peck
Ahhhh, campaign finance reform. It sounds so nice, doesn’t it? If only we could keep money out of politics without that pesky First Amendment getting in the way.
More than a decade into America’s boldest experiment with regulating the type and amount of cash hitting campaign coffers, we find ourselves frustrated with the lack of progress. Predictably, well-heeled candidates and issues have a louder voice in the process than their poorer competitors. It’s time for a new approach. As it turns out, America may finally be ready for one.
Through Citizens United v. Federal Election Commission, a 2010 landmark U.S. Supreme Court case, the Court held that the First Amendment prevents government from imposing spending limits on corporations and unions. The 5-4 decision stemmed from a challenge by Citizens United, a conservative non-profit corporation that produced Hillary: The Movie, a documentary critical of then-Presidential candidate Hillary Clinton.
The big question: could the film’s backers advertise the film in broadcast advertisements featuring Clinton’s image without violating 2002’s Bipartisan Campaign Reform Act (otherwise known as McCain-Feingold after its key Senate sponsors)? More specifically, did the film’s backers violate the act, as a lower court had concluded, by broadcasting any or all of the film within 30 days of the 2008 democratic primaries? The Supreme Court came to a much different conclusion. Reversing the lower court, the decision struck McCain-Feingold provisions that universally banned all corporate (non-profit and for profit included) and union “electioneering communications”, defined under the act as any mention of a candidate within 60 days of a general election or 30 days of a primary on Satellite, Cable or conventional TV.
While the decision’s critics have argued that this decision affords corporations speech rights that should be restricted to individuals, this is the wrong analysis. The Court realized what we should have all realized long ago. As much as we would like to limit the influence of money in politics, we simply can’t do so without also infringing upon our constitutional mandate to protect a process that encourages active political engagement.
Further, a key point often lost in debate over the case: it did not settle any questions over an existing ban on direct corporate and union contributions to individual candidates or political parties. Such contributions remain prohibited in federal races.
Still, the Court realized that even its limited response was essential to protect the political process from McCain-Feingold's status quo, under which courts were too often engaged to pick winners and losers in election-related speech. Should a major Hollywood movie studio be banned from referencing a candidate in a movie released in the weeks or months before any major election? What about that local environmental non-profit group that, through its devoted $20 contributors, raised just enough money to buy $5000 in local TV commercials to educate voters about the record of a pollution-loving incumbent?
The decision was anything but ideological. Instead, it was about protecting all of us from the censorship sword of our enemies.
As Trevor Burrus, one of my buddies from law school articulately concluded for Huffington Post in his coverage of a debate part of last week’s Conservative Action Political Conference, “The First Amendment does not allow anyone to pursue his vision of a better world through censorship. Although we'd all love the liars and shouters to be silenced, the First Amendment forbids such censorship precisely because there is no way to agree on who is a liar and who is ‘too loud.’; Those determinations are too intertwined with our ideological commitments.”
This year’s elections will mark the first major contests since the aforementioned troubling provisions of McCain-Feingold ban were lifted. So where do we go from here?
I’m cautiously optimistic after a recent visit to Denver Post’s editorial boardroom, where I was one of five panelists convened to participate in the first of several interactive dialogues with the readers leading up to November’s election night. Two of us were allegedly from the right, two came from the left, and one—a noted centrist political analyst—joined all of us and the paper’s editorial page editor for the conversation.
The debate was largely polite, with responses breaking down as I would have expected based on party lines. Lively rebuttals were well received. When it came to one issue in particular, however, we found ourselves in almost unanimous agreement.
Campaign finance reform has failed. Forget about keeping money out of politics. Instead, let anyone—from an elderly grandmother to the richest corporation in the nation—give what they want to give. Eliminate public matching funds for candidates accepting spending caps.
The key: every dollar spent on behalf of a candidate or by a campaign must be disclosed. Statutory definitions defining speech compelling disclosure would need to be defined. Reporting would not be delayed by days or weeks as it is now. Instead, before a campaign could spend a penny of a contribution, information would be disclosed on a publicly-accessible and easily usable Web site.
Reporting, at least at the state level, for issue committees would be less severe. Grassroots campaigns would get one fair warning before sanctions could be imposed for non-compliance.
Over the last year, Colorado has been at the forefront of the campaign finance debate. Colorado has some of the most restrictive campaign finance laws in the country. Meanwhile, Colorado Secretary of State Scott Gessler has faced the challenge of both enforcing these laws, while also keeping a key campaign commitment: to speak out against the most absurd and contradictory provisions that too often unfairly silence speech or trip up first time candidates and grassroots organizations. He has rewritten interpretive rules and argued against arbitrary enforcement of specific rules that serves only to harm less sophisticated campaigns (full disclosure: Gessler is a good friend of mine and previously represented me in a successful 2008 election-related challenge).
Predictably, the usual suspects have attacked his approach, with their arguments wearing thin. Free and robust speech requires money to communicate. As the executive director of the Open Government Institute, I support a system that requires and encourages reasonable campaign finance disclosure. This is a far cry from our current system.
Some of our state’s most offensive requirements: contribution caps for state-legislative candidates at $800 at the same time unions and other special interest groups are allowed to dump $5000 at a time into the coffers of candidates through so-called small donor committees. While the limits—approved by voters—were intended to keep money out of politics, they only serve to harm ordinary candidates who lack access to the power establishment. In sum, the little guy still faces an uphill battle—with challenges further complicated by the stress and headache of mastering Colorado’s complex reporting requirements.
Equally troubling, a mandate—one actively targeted by Gessler—subjecting any grassroots group speaking out for or against a specific ballot initiative to immediately register with the Secretary of State upon receiving $200 or more in donations. That’s 200 color copies at Kinko’s. That’s pizza for a neighborhood homeowners’ association meeting.
Ultimately, supporters of fair elections and clean government should focus not on keeping money out of politics, but instead on allowing us to connect the dots about the who, what, when and where of political communications and contributions.
While lawmakers across the nation fear rolling back the campaign finance “reforms” of the last several years, we’re lucky to have leaders like Gessler, as well as a courageous U.S. Supreme Court, willing to prioritize free speech over good intentions gone bad.
Jessica K. Peck, Esq., serves as the executive director of Colorado’s Open Government Institute and as a principal with Henley Public Affairs.