A Brief Exploration of Potential Campaign Finance Reforms
We have recently explored several of the core issues surrounding campaign finance that undermine accountability and transparency in our elections. After learning about (i) the disproportionate impact of very wealthy Americans on policy outcomes, (ii) the Citizens United case and consequent rise of super PACs and dark money, and (iii) the challenges with regulating online political ads, it is easy to be disheartened and feel pessimistic about the possibility of change.
But the truth is, many Americans of diverse political ideologies support campaign finance reforms. If we work together, small acts of advocacy could go a long way in encouraging elected officials to make change happen. In this final piece, we’ll take a look at pros and cons of a variety of campaign finance-related reforms. (But just as a heads up: This discussion is intended for education and doesn’t mean MWEG is endorsing any particular legislation mentioned here.)
Increasing transparency of political spending
One of the legislative changes people want to tackle involves various ideas about how we can better disclose to the public who is spending money in elections. There are lots of ideas about how to do so, but one of the more popular proposals at the national level is the DISCLOSE Act, which would require organizations (i.e., super PACs, nonprofits, unions, corporations) that donate $10,000 or more in “campaign-related disbursements” to disclose the names of donors who give $10,000 or more to them. This “trace back” requirement is intended to help combat the influence of dark and gray money by revealing the original source of large political spending to voters.
The DISCLOSE Act was first written and introduced in 2010 soon after Citizens United. Not everyone was a fan of this proposal, starting with Sen. Mitch McConnell (R-KY), who argued that the bill would unfairly expose corporations to harassment and intimidation from consumers who disagreed with their political spending. People in support of the bill responded that existing disclosure laws already protect against harassment and disclosure requirements treat corporations and unions identically.
More recently, along with several conservative groups, the ACLU opposed the DISCLOSE Act in a 2019 letter, arguing that it would “chill the speech of issue advocacy groups” and could “expose nonprofit donors to harassment and threats of violence.” In contrast, nonpartisan advocacy organizations that endorse the DISCLOSE Act, including the Brennan Center and Campaign Legal Center, argued that “voters have a fundamental right to know who is spending money to influence our elections” and that “it’s misleading to characterize transparency measures as a significant restriction on freedom of speech.”
While this type of debate continues, it appears to have substantial public support, with a 2019 Campaign Legal Center poll finding that 83% of voters support public disclosure of political donations to organizations that spend money on elections.
Strengthening the power of the FEC to enforce campaign finance law
Not all proposed reforms involve passing new campaign finance laws. In fact, some experts suggest the most obvious first step is making sure existing laws are actually enforced. The unfortunate truth is that in the campaign finance world, many things that are already illegal still happen, because these laws have not been vigorously enforced by the Federal Election Commission (FEC).
The FEC is the independent agency of the federal government in charge of enforcing campaign finance laws. It is made up of six commissioners who are appointed by the president and more than 300 employees. The commissioners are evenly divided between the two major political parties (three Republicans, three Democrats). Unfortunately, because of this partisan makeup, there have been several instances of gridlock in recent years. Additionally, presidents have left commissioner vacancies unfilled, meaning the commission lacked a quorum and could not enforce the rules. This inaction leads to poor transparency for voters, limited accountability for political spending, and a culture of permissibility among candidates that increases the likelihood of corruption. “Unenforced rules can be worse than having no rules at all.”
So, how can this be fixed? Well, the Brennan Center for Justice recommends reforming the FEC with the following changes: 1) reducing the number of commissioners from six to five, with at least one political independent, to prevent gridlocks; 2) establishing a bipartisan vetting process to identify potential nominees; 3) designating one commissioner as the chair of the group, with supervisory power and accountability; 4) limiting commissioners to two terms and not allowing commissioners to remain indefinitely past the end of their term; and 5) strengthening the FEC’s civil enforcement process by creating an independent enforcement bureau, limiting their ability to ignore serious allegations, establishing a legal pathway if the commission does not act on a complaint within a year, and increasing their budget to allow timely enforcement.
These sorts of changes to the structure of the FEC would have a substantial impact on its ability to enforce the law and hold campaigns and super PACs accountable for violations. Notably, a 2020 survey by the Campaign Legal Center found that 71% of voters support the FEC taking a more proactive role in enforcing campaign finance law.
Putting a stop to illegal coordination between outside groups and campaigns
So, here’s a more specific example of something illegal that still happens to some degree. Under current campaign finance law, super PACs are not allowed to coordinate their spending with campaigns. As discussed in this previous article, super PACS and other outside groups can spend unlimited funds in support of or against a particular campaign, but this money must be spent independently, without coordination with the candidate or campaign in question.
You may be wondering what, exactly, illegal coordination looks like. One example is through the use of third-party advertising vendors. The FEC has rules that dictate what a particular vendor can or cannot do if they are employed by both a candidate and an outside group, so that insider information cannot be shared through a third-party vendor to facilitate illegal coordination. Unfortunately, there is substantial evidence of illegal coordination in recent years from across the political spectrum. For example, there was alleged illegal coordination between two super PACs and two Democratic Senate campaigns in 2020 (where a common advertising company was used by the PACs and campaigns to strategically align $8 million of ads) and alleged illegal coordination by the NRA with many federal campaigns in 2016 and beyond (where shell companies and a common advertising vendor were used to coordinate political ads for both NRA and the campaigns).
If illegal coordination is indeed occurring, this political spending is not independent and should be reported as donations directly to a candidate’s campaign and subject to the appropriate limits.
However, it is difficult for the FEC to enforce the rules. Structural reforms to the FEC mentioned above would make a huge difference on this issue. In addition, the H.R. 679 – Political Accountability and Transparency Act has been proposed as a way to ensure that spending by outside groups is truly independent. It would further define coordinated expenditures and subject them to the necessary limits and disclosure requirements. This bill was most recently introduced in the House in 2019 with bipartisan co-sponsors, but it was not passed and has not been reintroduced in recent sessions.
Public financing of campaigns, small-dollar donations, and voucher programs
At this point, you may be thinking: Alright, transparency is great. Voters should definitely know where the money comes from. But how do you overcome the influence of wealthy donors in the first place? What about all the average Americans who can’t give tons of money to their favorite political candidate? If you have these questions, you’re not alone. Unfortunately, there are no easy solutions. Fortunately, there are lots of ideas.
One strategy to attempt to counter big money in politics is the public financing of campaigns. Some challenges with implementing publicly funded campaign financing are related to a court decision in 1976 called Buckley v. Valeo, which ruled that the FEC could not require participation in the presidential public financing program. Similarly, states cannot require candidates to participate in a public financing program, meaning candidates often opt for private fundraising because they are not subject to the same spending limits.
As it currently stands, there are 14 states that have some form of public financing program. Many of these state programs are created for governors’ offices, while a few apply to state legislative offices or the state Supreme Court. Additionally, these programs generally come in one of two main forms: either “clean election” programs that provide full funding for a campaign (following a specified number of small donations to demonstrate public support) or matching fund programs that provide a certain amount of matching public funds during the general election (following the fundraising of enough qualifying contributions during the primary election).
Some people may think public financing of campaigns is a new, untried strategy, but it’s actually been around for a long time! A presidential public financing program has existed since 1976, known as the Presidential Election Campaign Fund (PECF). Every major party candidate who won their party’s nomination used it until 2008. However, in recent years, the 1-1 match ratio and the strict limits on how much a candidate can spend have been insufficient to meet the rising costs of campaigns, and no candidate has opted to use it since 2012.
Proposed reforms in the For the People Act (FTPA) were intended to improve its effectiveness by increasing the match to a 6-1 ratio on small-dollar donations of $200 or less, while removing the spending limits that have made it an uncompetitive option. Funding for the updated program was intended to come entirely from assessments on criminal and civil penalties, as well as fines and settlements levied on corporations, corporate officials, and individuals convicted of tax fraud. (In other words, not from an increase in taxes!)
A similar publicly financed match program has been proposed for U.S. House candidates who meet the appropriate eligibility criteria. The intent would be to enable candidates to rely on small-dollar fundraising from everyday Americans instead of depending on wealthy interests to finance their campaigns. Some experts argue this would increase accountability of candidates to the needs of their constituents and reduce the influence of big money in our democratic processes.
However, another scholar maintains that small-dollar match programs may actually be more vulnerable to the impacts of hyperpolarization on the internet (i.e., candidates with the most media coverage are the most successful) than traditional public financing programs, because people who donate to campaigns tend to be more ideologically extreme. These findings bring into consideration the important role that political parties play as accountable actors for the management of campaign funds.
You may still be wondering, What about people who can’t afford to make small donations but still want to be part of the campaign funding process? That’s a fair question. Another possible reform that is designed to provide a voice for marginalized Americans is a voucher program, where eligible Americans are provided a voucher worth a small amount of money that they can give to a candidate of their choice. These types of programs are intended to allow low-income Americans to have their voices heard in the campaign fundraising process despite being unable to otherwise afford to make political donations. A My Voice Voucher pilot program was proposed in the For The People Act, which would have given individuals a $25 voucher that could be divided up among candidates of their choosing in increments of $5. This bill did not pass. At the city level, Seattle implemented a Democracy Voucher Program where voters receive $100 in vouchers, in increments of $25, and preliminary evidence suggests it has increased voter engagement.
A constitutional amendment
We have considered quite a few possible reforms so far, but stick with us while we look at one more idea! Because the Supreme Court has ruled so definitively on campaign finance in the past, some people believe a constitutional amendment must be adopted in order to make any campaign finance reform durable. Otherwise, the fear is that the Court will continue to strike down legislative reform from Congress as unconstitutional. Since the Citizens United decision in 2010, several constitutional amendments have been introduced in Congress that would reform campaign finance in various ways.
Recently, the Democracy for All Amendment was reintroduced in the House in January 2023 by Rep. Adam Schiff (D-CA) (who first introduced the amendment in 2013). This amendment would allow Congress to impose reasonable contribution and expenditure limits and enact public campaign financing systems. In December 2021, Sen. Jeanne Shaheen (D-NH) introduced another version of the Democracy for All Amendment in the Senate. This bill does not mention public financing systems but does include authorization to distinguish between real people and artificial entities (like corporations) when it comes to political spending.
The group American Promise suggests the For Our Freedom Amendment, which affirms the people’s interest in self-government, clarifies that Congress and states may impose limits on political spending, and declares that Congress and the states have the power to enforce this amendment with appropriate legislation and by differentiating between people and artificial entities.
The specific texts of these proposed amendments may differ, but the overall purpose of them is the same. American Promise is pursuing the goal of a constitutional amendment through a candidate pledge program, where advocates ask candidates and elected officials to pledge to promote such an amendment. You can keep track of potential constitutional amendments in Congress (like these mentioned above) and resolutions to support them from the state level at the website United4thepeople.org.
Opposition to these types of constitutional amendments are centered on the First Amendment, with arguments that allowing Congress to limit political spending is the same as limiting free speech. They also suggest that the right to corporate speech is required under the First Amendment and that influence is not corruption. In contrast, supporters maintain that such an amendment would “level the playing field” so that more Americans have the ability to engage meaningfully in the type of free speech that is understood to be political spending. They also argue that unlimited political spending allows wealthy interests to “set the political agenda,” to the detriment of majority public interests.
What will you do?
Now that we have explored some of the major challenges and potential solutions in federal campaign finance, take a moment to think about what you could do to advocate for more transparency and accountability in our elections. Will you consider a candidate’s position on money in politics when you decide how to vote or look up which super PACs are funding them? Will you be an informed consumer of online political ads and teach others how to do the same? Will you write to your elected officials to advocate for bipartisan consideration of any specific reforms?
The volume of change that is necessary may seem staggering, but pessimism perpetuates the weaknesses of the status quo. Hope is born in action. Follow along with MWEG’s social media accounts and share how you intend to make a difference and encourage others to do the same!
Part 1: “An Introduction to Federal Campaign Finance”
Part 2: “A Deeper Dive: Citizens United, Super PACs, and Dark Money”
Part 3: “Navigating Political Ads: How to Be an Informed Citizen When Lying Is Legal”
Part 4: “A Brief Exploration of Potential Campaign Finance Reforms”
