The future of campaign finance: A morning-after constitutional? | The ...

IF, AS the saying goes, ?a conservative is a liberal who has been mugged?, then perhaps an advocate of stricter campaign-finance laws is a newly-elected congressman or senator who has weathered months of negative ads funded by third-party groups freed from spending limits or disclosure requirements. That, at least, is the hope of many both inside and outside Congress.

This was the first presidential election since the Supreme Court ruled nearly three years ago, in Citizens United v Federal Election Commission (FEC), that the First Amendment prohibits restrictions on campaign spending by companies, unions and independent groups. (The court had already established, 34 years earlier in Buckley v Valeo, the principle that campaign contributions, that is to say the giving of money, is a protected form of expression.) Before the Citizens United ruling, the Bipartisan Campaign Reform Act of 2002 had barred corporations and unions from funding ?issue ads?, which discuss a candidate?s position on an issue without directly advocating that candidate?s election or defeat. The Supreme Court struck down that ban, and in this cycle such groups, unconnected with any party or candidate, spent more than $1 billion, including more than $600m on the presidential race. Although most of that came from super-PACs, which must disclose both their donors and spending to the FEC, much of it also came from politically active non-profits, which need disclose nothing at all. The total spending exceeded $6 billion?more than in any previous election cycle.

Such spending was expected to benefit Republicans, who oppose stricter campaign-finance laws more than Democrats do. And indeed Mitt Romney received far more help from outside groups than Barack Obama did, while the four most generous individual donors?Sheldon Adelson, Harold Simmons, Bob Perry and Joe Ricketts?collectively showered Republican candidates and super PACs with over $111m?more than four times the amount Democratic candidates got from the four most generous liberal donors.

But Messrs Adelson et al ended up with little to show for all that money. Indeed, outside money generally had a bad election day: the Centre for Responsive Politics (CRP), a non-partisan group that tracks the influence of money on politics, found that the candidate with the outside-money advantage lost in seven of the ten Senate and House races that attracted the most outside spending.

Some Republicans have become worried that such a torrent of outside spending may reduce the influence of political parties. Even before the election John Cornyn, a senator from Texas who heads the National Republican Senatorial Committee (NRSC), which is charged with helping elect Republicans to the Senate, advocated ?strengthening the political parties [by] revisiting the federal fund-raising restrictions and co-ordinated limits on both parties? as a way to increase ?transparency and accountability in politics?. That may not sound like much, but this year Senate Republicans filibustered the relatively innocuous DISCLOSE Act, which would have required groups spending more than $10,000 on a campaign to disclose donors who gave more than $10,000. Mr Cornyn?s statement at least provides an opening to discuss new disclosure rules.

The Citizens United ruling does not ban such laws; it actually endorses them. It argues, very sensibly, that disclosure allows ?shareholders [to] determine whether their corporation?s political speech advances the corporation?s interest in making profits, and citizens [to] see whether elected officials are ?in the pocket of so-called moneyed interests?.? Nancy Pelosi, the House minority leader, has promised to push for passage of the DISCLOSE Act again, though with Republicans controlling the House this may be more symbolic than effective. Sherrod Brown, a senator from Ohio who survived a withering barrage of outside-funded negative ads, has suggested laws preventing government contractors and bailout-fund recipients from spending money on elections, as well as laws requiring corporations to get shareholders? permission for such spending.

Advocates of reform could also strive for stricter enforcement of the rule that super-PACs must be independent. The Citizens United ruling defines ?an independent expenditure? as ?political speech presented to the electorate that is not co-ordinated with a candidate?. Priorities USA Action?the super-PAC that backed Mr Obama?is headed by Bill Burton, Mr Obama?s former deputy press secretary. Former aides to Mr Romney ran the super-PAC backing him. Big bankrollers of the super-PACs backing Newt Gingrich and Rick Santorum enjoyed access to both candidates far beyond what a small-dollar donor could have expected. Trevor Potter, a former Republican FEC commissioner, contends that the ?only entities entitled to unlimited spending are those that are wholly and truly independent of candidates?, and blames the FEC for failing to regulate properly. Five of the FEC?s six commissioners are holdovers whose terms have expired, and Mr Potter contends that a more robust FEC could do better.

Certain politicians have adopted a more extreme approach to reform, among them Jim McGovern, a liberal congressman from Massachusetts, and Tom Udall, a liberal senator from New Mexico. Both have both introduced resolutions to amend the constitution in order to overturn the Citizens United ruling, as have 11 other senators and congressmen in the past two years. But such an amendment requires a bill to pass both the House and Senate by a two-thirds majority in each, and then be approved by three-quarters of the states. Success is very rare.

Mr McGovern is a realist; he believes that ?if there are any kind of reforms, it will be in the area of disclosure.? Though the Republican leadership has opposed anything further, he also suspects that ?if you did a secret poll among Democrats and Republicans, rank-and-file members, I think overwhelmingly people would say they would love to get money out of politics.? Similarly, Mr Udall hopes that ?after this election [reform advocates] may gain some real momentum? among Republicans. He cites the same fundamental problem implied by Mr Cornyn: outside money has diluted the power of both candidates and parties in campaigns. Threaten politicians? power, and they just might bite back.

(Photo credit: AFP)

Source: http://www.economist.com/blogs/democracyinamerica/2012/11/future-campaign-finance

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