The following post is the second of four contributions from our guest bloggers. This post comes from Professor Joel Gora of Brooklyn Law School, ACLU counsel in many major campaign finance cases ranging from Buckley v. Valeo to Citizens United v. FEC.
In the 1970’s, when I was a young ACLU lawyer, my colleagues and I slowly began to realize that the new federal campaign finance laws, heralded as “reform” of our political processes, were anything but that. They imposed limits on the funding of political speech, thus cutting to the heart of the First Amendment’s protections of the freedoms of speech, press, association, assembly and petition. They required deep and onerous disclosure of the identities of people who contributed even the most nominal amounts to candidates or causes. They created government agencies to monitor the raising and spending of every dollar used for political and electoral speech. To the extent that they provided any public subsidies to political candidates or parties, they did so with severe strings attached and in ways that rarely benefited insurgent or dissident forces. And, finally, these laws were passed by incumbents only too happy to fashion rules to benefit themselves and disadvantage their challengers, and to appoint the officials who would enforce these rules against precious First Amendment rights, with the added bonus of being able to claim that this was all being done in the name of “reform” and with the cheerleading approval of most editorial boards and media commentators. How delicious all of that must have been for those politicians.
A three-fold First Amendment response to these new campaign finance laws was fashioned by the ACLU and others.
First, there should be no limits on contributions and expenditures used by individuals or groups in order to advocate candidates or causes in the public arena. The principles that informed this approach were straightforward. Limits on political funding were limits on political speech and would directly restrain and suppress speech that all agreed was at the heart of the First Amendment. Such limits would benefit the political status quo, entrench the powers-that-be, and privilege those political speakers whose speech was not subject to the limits, most notably, the organized news media. A far better approach would be to let the people decide for themselves – individually and in groups – how much speech is necessary and proper in an election campaign and not cede to government the power to control political speech.
Second, use disclosure as the antidote to governance concerns that may flow from campaign finance patterns so that the people can decide who has too much access or influence to what politicians or office holders. But make it what we might call today “smart” disclosure: focus only on large contributions to major party candidates. Disclosure any broader or deeper than that, e.g. on minor parties, on issue organizations, on small contributors even to major party candidates, needlessly sacrifices cherished protections for the rights of political association, political privacy and political anonymity.
Finally, address the imbalances and disparities that might result from no limits on giving or spending by significant public funding to expand political opportunity, without restricting political speech. And the public funding should be generous and equally available to all qualified candidates, not just to those representing the two major parties. But that public funding should not be limits-based, but rather should provide “floors, without ceilings,” platforms to facilitate speech rather than roofs to restrain it. To impose spending or similar limits as the condition of receiving public benefits would be a back door way to restrain political speech.
The goal was to maximize political speech and minimize government control of it.
In the 40 years since then, my experiences as an advocate and an academic, have convinced me of the wisdom of those three principles of campaign finance reform: no limits, smart disclosure, “floors without ceilings” public funding. I would apply them in New York in the following ways.
Candidate contribution limits are generous in New York. Good, I would leave them that way. Haven’t we seen enough of what happens when you have low limits on contributions to candidates? Ever since the Court in Buckley mistakenly upheld limits on the amount of contributions that individuals could give to candidates, we have seen constant and understandable efforts to get around those limits: greater reliance on PACs (an incumbents-favoring device), use of soft money by parties and independent groups and individuals, and, highlighted in the current electoral season, independent spending “Super Pacs” and non-profits. So much of this activity is attributable to the limits on direct contributions to candidates. People and groups are going to try to use their resources to get their message out, especially in an election year, whether by direct or independent support of the candidates and causes they espouse.
Party contribution limits in New York are even higher, and some kinds of contributions to parties are unlimited. I think that’s good too. We should resist efforts to weaken the funding of our political parties. Strong parties are essential to a strong democracy and a balance of power in governance.
In this regard, strong political funding may have been the pivotal factor in securing the passage of marriage equality in New York. As is well-known, key politicians who supported same-sex marriage were given generous campaign finance support for taking such stands. Few claimed that this phenomenon reflected “corruption,” and it resulted in a major legislative victory for an important group of people in our State. By the same token, though much more ironically, a major push for state-wide public funding of political campaigns is currently being lavishly financed by, among others, an internet multi-millionaire whose group will be giving campaign finance support in an effort to persuade key Republican State Senators to vote for public funding. This is the very same kind of campaign finance stratagem which was successful with marriage equality. Again, there have few complaints of “corruption” from the usual suspects. Perhaps “big money” in politics doesn’t seem so bad if it’s supporting political outcomes you approve. To my mind, campaigns like this are good examples of free speech and democracy in action.
Public financing. Unlike the late, great liberal Senator Eugene McCarthy, who compared public financing of politics with the American Revolutionists asking King George to fund their revolution, and unlike many contemporary politicians who characterize public financing as “food stamps for politicians,” I think public funding and subsidies for politics can serve positive First Amendment purposes. But not if the scheme is limits-based as are many, if not most, of the public funding schemes extant in America today. You can summarize the most effective argument against limits-based public funding in just two words: Barack Obama. President Obama had no intention of letting his reputation as a campaign finance reformer encumber him with the spending limits that went with accepting presidential public financing, even though they were almost $100,000,000. So he rejected the “clean” public money, raised and spent $750,000,000 in private money – becoming the biggest spender in American political history — and won a historic presidential election.
We need to rethink the limits-based models of public financing, rather than replicate them at the State-wide level. I don’t think that models such as New York City’s public financing program have been sufficiently successful in either enhancing electoral competition or deterring official corruption as to justify automatic transplantation without further review. In addition, in its recent decision in the Arizona public funding case, the Supreme Court, for the first time, entertained serious constitutional concerns about some of the more popular campaign finance mechanisms – such as “trigger” matches to counter high spending opponents or independent groups – and struck them down. Instead, proposals should be developed which provide floors to facilitate electoral speech not ceilings to limit it.
Disclosure. The benefits and value of disclosure to the electorate are overrated and the harm to freedom of association and political privacy from disclosure underappreciated. The disclosure threshold in New York is $99.00, an outrageously and ridiculously low figure. Give a penny more than that to a candidate or committee in an entire year and your name, address and other identifying information have to be reported to the government and made available to the public. The amount isn’t even adjusted or indexed with the level of office in the way that certain contribution limits are. Whatever claimed value there is in knowing who gave that paltry sum to a politician is greatly outweighed by the harm to freedom of association and political privacy. Even some of the most ardent campaign finance regulation advocates believe that low-level disclosure thresholds like that in New York do much more harm than good.
Just as the depth of disclosure should be “smarter” than that, the breadth of disclosure should be limited to groups that engage in express advocacy of electoral outcomes. Any broader scope of disclosure, encompassing issue advocacy, poses a serious threat to such advocacy and should be resisted. One of the reasons the ACLU got into the campaign finance debate 40 years ago was to protect the right of itself and all other non-profits and similar issue groups to criticize politicians and public officials without having to disclose the identities of their supporters in order to do so. That should be the proper approach now as well.
So, in summary, here are my five suggestions for campaign finance reform in New York. First, contribution limits should be as high as possible, if not eliminated completely, and certainly not reduced. Second, public funding needs to be seriously rethought, be as simple and straightforward as possible, and not be limits-based. Third, disclosure requirements should be as focused and smart as possible. Fourth, likewise, they should be limited to express political advocacy expenditures. Finally, all of this should be guided by the realization that the best election reform provision ever enacted is the First Amendment. The more we follow its letter and spirit, the better off we will be.
The views, opinions and positions expressed within this guest post are those of the author alone and do not represent those of Genova Burns Giantomasi & Webster. This post has been published as provided by the author, without any substantive edits; GBGW makes no representations of any kind as to the content of this post.