May 242017

Not too long ago, my friend Warren wrote an article proposing some campaign finance reforms. This got me thinking about whether or not there’s a reliable to way of dealing with monetary donations to political candidates that both encourages integrity once a candidate reaches office, and can stand up to legal challenges. Personally, I think there is, but to do so we’re going to have to approach the situation from a different angle.

Warren’s proposals will sound pretty familiar to most people who have heard libertarian-leaning campaign finance proposals (which, full disclosure, I’m personally sympathetic to) – heavy on transparency and disclosures while still leaving the door open for people and groups to contribute to the politicians they support. Warren also includes some political advertising limits that, while certainly likely to be welcomed by almost everyone, probably wouldn’t survive a legal challenge. Personally, I’d give the longer advertising windows to more local elections to try to emphasize greater local political participation, but that’s now squabbling over personal preferences more so than dealing with the main issue at hand.

All in all I like the idea, and while I don’t think the campaign contributions are the heart of the problem in our elections, there’s no denying a perception problem when it comes to campaign contributions and political voting patterns. Ultimately, it’s a chicken and egg problem – are these politicians getting their contributions because they’re already staking out positions that the people donating money agree with, or is the money causing them to take the same positions as the people writing the checks (either directly or indirectly through donations buying lobbying access/face time)? I generally think it’s the former, but if we’re looking to increase the perceived integrity of government, something has to be done to assure people it’s not the latter.

Personally, I think we can solve this issue with a simple law – Congressional representatives can not take any action on any bill impacting an industry they have received money from. This applies whether a company contributed directly, or they got the money from a trade or lobbying group representing a particular industry. If you got money from any business, or group of businesses, you’re effectively recused from the issue. This solves the problem of having what appears to be corruption – the people getting money from businesses are no longer able to do anything to benefit those businesses, or prevent action that hurts them.

The ban lasts 2 * the longest Congressional term (currently 6 years) from the most recent contribution you received. It’s triggered by corporate-related donations only, individual donations would be exempt under this system. Remember, the emphasis here is on the perception that businesses and trade groups are unduly influencing legislation. Obviously, the ban only kicks in if the contribution is accepted – politicians who refuse to accept the contribution, or give it away within a short enough timespan (for the sake of this being the initial idea – let’s define “short enough timespan” as “within 30 days of the donation being made). Politicians will still be allowed to case show votes on the legislation in question, but the votes don’t count towards passage of the bills, and they still aren’t allowed to do anything else (like propose amendments, or put the bill on hold).

Campaign finance reform efforts are generally focused on either stopping the contributions from reaching politicians in the first place, or limiting what people can do during campaigns. This hasn’t stood up to court challenges because political contributions and advertisements are considered political expression, which falls under the First Amendment, not to mention tighter legal scrutiny simply because we as a country are particularly sensitive to the idea of limiting political speech (it’s also why I think at the very least the advertising limits Warren suggested won’t hold up). On the other hand, my proposal still lets people contribute towards political candidates and/or agendas that they wish. The difference is that now corporate and lobbying donors have to weigh the benefits or supporting political candidates financially against the loss of their votes on legislation that impacts them the most.

Under this system, the only thing being impacted when a company contributes to a political campaign is the politician in question, and that’s only when they to take the money. That’s not impeding anyone’s right to support a political candidate they want, which is the main issue campaign finance efforts run into in court. There’s no Constitutional right saying that representatives and senators  have to be allowed to cast votes on legislation (and judging by how the Senate works, you’d almost think not voting was actually the goal).

Obviously, a recusal system targeting businesses and lobbying groups isn’t going to impact PACs, or individual contributors, no matter how synonymous those individuals may be with a particular company. The reasoning here is that PACs generally aren’t industry-specific, and limiting the contributions of individual citizens is what got previous campaign finance laws overturned in the first place. I’m not saying this system is perfect, but it’s a good start at targeting what looks to some like a crony capitalism in Congress.

As for the categories not covered by this recusal system, rich individuals and PACs – donations from a single individual can be pretty readily outweighed by multiple donations from other citizens, as was clearly intended the way individual donation laws are currently written. That would leave elected representatives with no choice but to make sure they’re responsive to the concerns of the population at large in their districts, which is the general goal of representative politics. As for PACs, the issue isn’t a lack of bans on donations, but rather the paper-thin “independence” rules for PACs. The real solution to that issue is a stricter definition of what constitutes a committee being “separate” from a candidate.

While everyone likes to fixate on campaign finance reform, there are probably bigger reforms that should be pursued first. The aforementioned PAC issues being one, but even bigger would likely be gerrymandering. The overwhelming majority of Congressional seats aren’t competitive and it’s because they’re engineered that way. Curing gerrymandering would force Congressional representatives into less blindly (and rabidly) partisan policies simply because their districts won’t be one-sided enough to support it.

Remember, the issue at hand in the Citizens United case wasn’t monetary donations to a political candidate – it was the production and promotion of a movie critical of Hillary Clinton in the 2008 election cycle. Attempting to regulate that type of activity is what led the court to conclude that political contributions and electioneering are Constitutionally-protected speech. It also creates a strict legal test that has to be passed for any attempt at campaign finance changes to stand up to a legal challenge. Strict disclosure requirements pass that muster, but don’t do anything to address the perception that there’s pay-to-play going on in politics, or counter people’s insistence that corruption is rampant.

If we can’t deal with this at the donation end of the spectrum, perhaps we can address this perception at the legislating level instead. This settles the legal issue presented by Citizens United, mostly by not bothering to add any regulations to political contributions, and instead focuses on an area where there isn’t established case law limiting our options. This proposal emphasizes individual donations, as opposed to lobbyist contributions. Just keep in mind that whatever campaign finance reform proposal you support, none of it addresses the bigger problems of gerrymandered districts and the fact that PACs, while allegedly independent, issues-focused groups often times act like an additional bank account for politicians and their campaigns. Those are problems that will need to be solved separately, preferably before trying to deal with money in politics.

 Posted by at 1:28 AM