Cure for Campaign Finance Ruling?

| Thu Feb. 11, 2010 4:29 PM EST

On Thursday, three weeks after the Supreme Court eviscerated campaign finance laws by ruling that corporations can spend unlimited amounts of money in political campaigns, the Democratic leadership in Congress finally unveiled a legislative response. Scattered Democrats, like Rep. Alan Grayson (D-Fla.) and John Hall (D-N.Y.) had been criticizing the decision and suggesting legal remedies for weeks. But today's effort has the backing of Chuck Schumer (D-N.Y.), a top Senate Democrat, and Chris Van Hollen (D-Md.), Nancy Pelosi's right-hand man, making it as close to an "official" Democratic response as we've seen so far. The legislative framework proposed by Schumer and Van Hollen doesn't call for public financing of elections, but it's a pretty solid response* that includes the following:

  • Ban on expenditures from foreign interests;
  • Ban on expenditures from Federal contractors;
  • Ban on expenditures from TARP recipients;
  • Disclosure to the public through enhanced reporting through the Federal Election Commission and Lobbying Disclosure Act;
  • Disclosure to shareholders directly and through the Securities and Exchange Commission;
  • Stand By Your Ad (CEO and donor disclosure);
  • Lowest Unit Rate (air time for candidates and party committees);
  • Coordination Rules (tightened between outside groups and candidates).

The ban on expenditures by Federal contractors and the public disclosure requirements (including Stand By Your Ad, which would require CEOs and donors to say "I'm ____, and I paid for this ad") are probably the most important parts of this. Lots of companies do business with the Federal government, and a blanket ban on expenditures by that group would prevent, for example, defense contractors from banding together to oppose candidates who wanted to cut military spending. And most companies don't want to get too publicly involved in political controversies—so disclosure requirements might be a somewhat-effective deterrent. Still, the companies that are absolutely determined to spend money on political campaigns aren't going to be stopped by any of this. That would require a constitutional amendment. Lawrence Lessig says that's exactly what America needs. What do you think?

*UPDATE, 4:45pm EST: I tend to respect Lessig's judgment on a lot of these issues, and he just sent out an email calling the response "In a word: hopeless." The Schumer/Van Hollen package "is filled with ideas that either won't work or that, if they worked, would only invite the Supreme Court to strike again," he argues. Full text after the jump.

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Friend—

The Democratic leadership in Congress just announced its response to the Supreme Court's decision in Citizens United, the case that struck down limits on independent corporate campaign expenditures.

In a word: hopeless.

The package the Democrats are proposing is filled with ideas that either won't work or that, if they worked, would only invite the Supreme Court to strike again. (For a description of the proposed changes and my reactions to them, click here or scroll to the bottom of this email.)

Congress had a chance to do something real here, but rather than supporting a bold reform that would make our democracy function better, they failed; they changed nothing. And as a result, our representatives' dependency on campaign funders -- the central corrupting force acting on our government -- will continue for another day.

You know why it happened this way. Members of Congress have every incentive to preserve a system that keeps them in office by keeping their campaign coffers full. So the very same funders who've blocked progress on issue after issue for decades have now conspired to block a reform that would have made those other reforms possible.

What we need to do is show members of Congress that they're also dependent on another constituency: the voters. We're following this issue. We know the difference between fake reform and real reform. And come November, we'll make our decisions based on who had the courage to stand up to the funders, and who tried to sell America a bill of goods while protecting the status quo.

The Fair Elections Now Act is the reform we need, and we still have the chance to push Congress to pass it. So far, 135 Members of the House have signed on as co-sponsors, but we must continue to urge all of our representatives to support this crucial bill. You can use our simple tool to email your members of Congress and tell them that this issue won't fly under the radar in 2010:

http://fixcongressfirst.org/email

If the Democratic Party wants to lead, then they need to show us they're ready to lead. And if the Republican Party wants to rise back to power, they need to prove they'd use that power to enact the will of the people.

Please take action today to make real reform possible.

-- Lawrence Lessig


P.S. These are the changes the Democratic leadership proposes, and my view about each. As you read these, ask yourself: Will this change reform the fundraising Congress? Will it really make Members of Congress any less dependent on special interests?

(1) Ban foreign corporations from influencing elections.

This is a fine idea. Problem is that it is completely unclear how under the Supreme Court's reasoning this change would be constitutional. The Court said the First Amendment doesn't care who is trying to exercise the right to speak -- that the First Amendment simply limits the government's power to regulate speech. So how will it find foreigners have less freedom than corporations?

(2) Stop government contractors or TARP recipients who haven't repaid from political spending.

This selective regulation is Supreme Court bait: it wasn't imposed on TARP recipients when they took the money, and my bet is the Court views the government contractors limitation as too broad.

(3) Impose new disclosure requirements, so that the ultimate funder is exposed.

A perfectly fine regulation, but to what effect? Will the disclosure really make Members less dependent on the funders?

(4) Impose new disclaimers on TV ads.

Same point as above.

(5) Require candidates to have reasonable access to air time.

This is promising and important, though the Court has signaled increasing impatience with this sort of regulation. So again, an uncertain reform of limited effect.

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