In our post-television age, a new opening for campaign finance reform

This blog originally appeared on January 27,  2018 in The Hill.

The current laws on campaign finance and money and politics are dead. Dead not because of rulings by the Roberts Supreme Court which have overruled much of the current laws in place since the 1970s. Their death is a result of the United States moving into a post-television era where the assumptions that defined much of the law on money in politics are rapidly losing or have lost their validity. This suggests a rethinking what campaign finance reform should look like moving forward.

The constitutional framework structuring the role of money in politics was articulated in the Supreme Court’s Buckley v. Valeo, 424 U.S. 1 (1976) decision. In ruling upon the constitutional validity of congressional post-Watergate reforms, the Court declared that while money was not equivalent to speech, its use in politics nonetheless “implicate(s) fundamental First Amendment interests,” such that limits on contributions or expenditures were only permissible if the government could show that contributions either corrupted or lent the appearance of corruption.

While the Court was willing to say that contributions to candidates and other entities met this standard, it did not see how expenditures by candidates, political parties, or other groups did.

In reaching that conclusion, the Court drew upon a famous analogy — the gas tank. Drawing an equivocation between how much money a person or group can spend and how much political speech they have, the Court said in the famous footnote number 18 that:

“Being free to engage in unlimited political expression subject to a ceiling on expenditures is like being free to drive an automobile as far and as often as one desires on a single tank of gasoline.”

Money was analogized as political gasoline. This happened at a time when the Court noted the “electorate's increasing dependence on television, radio, and other mass media for news and information.” Money in 1976 in fact might have been correlated with political speech.

But when the Court made this argument, it was in the middle of the television-centric era of American politics, especially at the presidential level. Writers such as David Haven Blake in “Liking Ike: Eisenhower, Advertising, and the Rise of Celebrity Politics,” argued that Dwight Eisenhower’s presidency was the advent of the merger of television and presidential politics, with it perhaps not really starting until 1960 with the Kennedy-Nixon debates or even 1964 with Lyndon Johnson’s famous “Daisy” ad. Television, especially network level, was the place to go for politics, news, and political advertising. It was a limited forum in terms of time and space to run political ads and therefore money was essential to buying and allocating scarce time.

By the time Buckley was decided in 1976 the television-centric era of American politics was in full swing. But already it was being eclipsed by what media scholar Elana Levine labels a post-television or at least a post-network television era with the rise of cable. And then in the late 1990s and 2000s the rise of the Internet and the social media moved America even further beyond the television-centric era.

We know now that network television viewership is down, that Millennials are not watching it, and that candidates, parties, and political organizations are increasingly moving into Facebook, Twitter, and other on-line or cell phone modes of connecting with people.

Buckley thus came near the halfway or high water mark between the rise of the television-centric era of politics and its coming demise. These alternative forms of reaching voters do not suffer the same scarcity problems as network television did. The longer-term cost curves for communicating ideas to voters, or fundraising, is dropping, with candidates such as Bernie Sanders and even Donald Trump showing the changing dependence on money and traditional television. Over time, television will simply be less important to politics.

What does it mean then to be in a post-television era? The assumption that Buckley made in drawing an analogy between money, gasoline, and political speech is less viable now than it was in 1976. One could question whether such an analogy ever made sense back then but soon, at the presidential and perhaps at the state and congressional level, the television-centric world is ending. The central claim, then, that campaign donations implicates First Amendment interests may be less the true today, and rests on unstable grounds.

If the above is true, the core premises of Buckley that provided the framework for the linkage between the First Amendment and money in politics have eroded and the precedent might be overturned, as it is no longer empirically or conceptually valid.

That decoupling of money from the First Amendment does not mean the former is not still important in politics or that it does not influence campaigns and elections. Instead it suggests that if money is no longer connected to free speech in the way it was during the television-centric era, then perhaps it would be possible to regulate it in ways consistent with this new reality.

Di Thao, Politics, and the Problem of Political Corruption

A thin line distinguishes legitimate political contributions and solicitations from bribery and
extortion.  Assuming all the allegations are true, St Paul Council member Dai Thao and his campaign manager crossed that line when they tended votes for money.  Yet even if they did nothing illegal,  this incident should not blind us to the bigger problem of how money corrupts politics and how political influence is leveraged, and, how contrary to what the Republicans are currently doing in the State Legislature, why we need more restrictions on the use of money for political purposes.
The Dai Thao example is what is called quid pro quo corruption–the offer or exchange of money for the performance of an official governmental act such as a vote on legislation.  This is what most people think of as political bribery or extortion and it is illegal under the federal bribery and gratuity statute, 18 U.S.C. § 201, or Minnesota Statutes § 609.42.    Some will contend that the offer or exchange of money for political influence is really what all political fund raising is about, so why should not all that be illegal?  The answer is yes...and no.
First, the critical legal line possibly crossed in the Thao incident is the explicit or implied exchange of money for the performance of an official act.  Bribery laws require a showing of criminal intent, and thanks to a recent Supreme Court decision, it must be an exchange of money for an official government act.  Smart politicians correctly and legally avoid bribery by never promising to alter a vote or perform an official act conditioned upon the payment or receipt of money.  They may tell supporters that they need their money so that they can continue to do their job or protect their interests but there is not an explicit promise to change a vote.  Moreover, elected officials generally also build fire walls that separate campaign from government staff to further make sure lines are not crossed.  All these are subtle but important distinctions that at least in theory contrast bribery or extortion from legitimate fund raising.
Yet quid pro quo corruption is the thinnest and perhaps most rare example of political corruption.  Many believe that corruption is more than bribery; it also has a more structural  aspect.  The issue is not just the explicit exchange of money for an official government act, it is how money is used to by not just access but repeated access.  In theory elected officials should return all phone calls or meet with all their constituents.  However, the names of big donors are recognized and are called back first or seen  more readily.
Corruption is when some interest groups can spend large sums of money in order to lobby and gain access to decision makers.  It is when lobbyists or big donors also serve as fund raisers to help solicit money for incumbents and candidates and then are rewarded for their efforts.  It is when, as in Minnesota, the legislative caucuses and political parties and their subunits are allowed to solicit and accept in the aggregate  unlimited amounts of money from individuals, political action committees, and lobbyists.  This is a problem because the parties set the political platforms and the caucuses the legislative agenda.  Money thus influences what parties believe and what legislation is heard.
The real issue is that money should not be the mechanism that determines how political power and influence are allocated.  Money might be a great way to allocate sailboats but it should not be the medium for handing out political influence and making political decisions.  Years ago Justice Rehnquist declared in  First National Bank of Boston v. Bellotti, “It might reasonably be concluded that those properties, so beneficial in the economic sphere, pose special dangers in the political sphere.”  Similarly, in  Federal Election Commission v. National Right to Work Committee the Court declared that it was legitimate to worry that “substantial aggregations of wealth amassed by the special advantages which go with the corporate form of organization should not be converted into political ‘war chests.’” At one time the Court aligned with public opinion, recognizing a broader sense of corruption tht extended far beyond what one sees in the Thao situation, suggesting that even if what he and is campaign manager did was not actually illegal, it was still inappropriate political behavior.
Yet under Chief Justice Roberts, the Supreme Court has all but gutted political corruption laws.  In McDonnell v. United States the Court overturned the former Virginia’s bribery conviction, ruling that official acts did not extend to an exchange of gifts and money in return for arranging meetings and calling other public officials to discuss a donor’s business.  And in  McCutcheon v. Federal Election Commission, Roberts seemed to endorse the idea that purchasing influence is permissible when he declared:

Spending large sums of money in connection with elections, but not in connection with an effort to control the exercise of an officeholder’s official duties, does not give rise to such quid pro quo corruption. Nor does the possibility that an individual who spends large sums may garner “influence over or access to” elected officials or political parties.

Contrary to Roberts, many of us do think that seeking access or influence is political corruption, and the current ways that we finance our campaigns and elections is a legal form of bribery and corruption.  The solution in part is to make candidates and parties less dependent on large donations, and to encourage more disclosure.  Unfortunately, the Republican majorities in the Minnesota legislature are eliminating the system for public financing of elections in the state, and are trying to restrict the power of the state to regulate money in politics.  Such an effort if successful, will only  fuel more behavior such as what we see with Dai Thao.

The Lessons of Town of Greece v. Galloway for Campaign Finance Laws

    The Supreme Court’s recent Town of Greece v. Galloway ruling upholding invocation of a prayer before the start of a local town board meeting is not a decision that one would think would be of significance to election law, but it is.  Specifically, the Court’s discussion about coercion and religious beliefs has potential importance to those arguing against campaign finance laws, especially rules mandating disclosure of political contributions.
    At issue in Galloway was a practice of town board to begin its monthly board meetings with a prayer delivered by a local clergy member.  Clergy were selected by local congregations listed in a local directory.  It so happened, according to the Court, that most of the local congregations were Christian and therefore most of the prayers were Christian.  Citizens attending the board meeting objected, claiming such prayers constituted an endorsement of Christianity, in violation of the First Amendment Establishment clause.  The Supreme Court disagreed.  In ruling against them the Court offered several reasons, including the fact that starting legislative deliberations with a prayer is a long-standing practice that goes back to the first Congress.  But more importantly, the Court keyed in on the notion of coercion.
    One of the arguments made by those objecting to the prayer was that it “coerces participation by nonadherents”–in effect, it forces those who do not wish to participate in the prayer to go along with it in order to please board members from whom they are asking a favorable ruling on a particular matter.  Justice Kennedy, writing for the majority, acknowledged that the First Amendment bars the government from forcing individuals to participate in any religious exercise.  But nonetheless, Kennedy disagreed. Noting that the issue of coercion is fact-intensive, Kennedy  stated first that the prayer was not directed at the public but it was for the board members to help guide them in their duties.  Moreover Kennedy said there was no evidence that the town board had singled out any member of the public because it refused to participate in the prayer.  Requests to stand for prayer came not from the board members (the government) but from local clergy.
    But more significantly while some objected that prayers made them feel unwanted, Kennedy  distinguished that feeling from coercion.

    [R]espondents stated that the prayers gave them offense and made them feel excluded and disrespected. Offense, however, does not equate to coercion. Adults often encounter speech they find disagreeable; and an Establishment Clause violation is not made out any time a person experiences a sense of affront from the expression of contrary religious views in a legislative forum, especially where, as here, any member of the public is welcome in turn to offer an invocation reflecting his or her own convictions.

Exposing individuals to ideas that they would rather not hear is not coercion, especially when those ideas a brought up are not by the government but private citizens, in this case, members of the local  clergy.  For the Court, it is not coercion to be exposed to ideas one objects to unless in some way the government (my emphasis) does something more, such as retaliates.  Justice Thomas and Scalia in their concurrence reinforce this notion, stating that coercion only occurs when religious orthodoxy is enforced “by force of law and threat of penalty.”
    So how and why is all of this significant to campaign finance laws?  Central to a host of recent decisions, such as McCutcheon v. F.E.C, Davis v. Federal Election Commission, Citizens United v. F.E.C, and  Federal Election Commission v. Wisconsin Right to Life, Inc is the concept  that particular laws “chill political” speech.  The existence of some type of campaign finance laws, especially in the case of Davis, where candidate contribution limits would be raised to offset spending by wealthy donors, were seen to chill or discourage individuals from spending or contributing money because of fear that others would be able to contribute more to offset their spending.  In McCutcheon, aggregate contribution limits were seen as chilling free speech, in Citizens United bans on corporate independent expenditures were deemed censorship.  In all these case laws were viewed as coercive, either directly or indirectly discouraging individuals from donating.
    Now one can have a serious debate regarding whether all of these regulations really chilled or intimidated individuals from giving money.  In many of these cases the issue was not really not be able to give, but how much or how, but to read these cases one would think that the challenges came from a bunch of political wallflowers, fearful of what others may think about them.
    The best example of this comes in Doe v Reed where challenges came to an Oregon law arguing that the disclosure of the names of individuals who signed ballot petitions chilled their speech.  The Court rejected the claims, noting no record of real intimidation or retaliation.  The Court–with Chief Justice Roberts writing–rejected assertions that the mere posting on the Internet of the names of the petitioners along with maps indicating their locations is not enough of a showing of intimidation and harassment to void on First Amendment grounds their disclosure.  Scalia, pushes the issue even further, declaring that we should have the courage of our convictions.

    Requiring people to stand up in public for their political acts fosters civic courage, without which democracy is doomed. For my part, I do not look forward to a society which, thanks to the Supreme Court, campaigns anonymously and even exercises the direct democracy of initiative and referendum hidden from public scrutiny and protected from the accountability of criticism. This does not resemble the Home of the Brave.


     The First Amendment protect us from the government, but not the dirty looks and approbation of others.  The government cannot persecute individuals who hold minority or dissenting positions, but nothing in the First Amendment protects dissidents from what John Stuart Mill described in book IV of On Liberty calls the “unfavorable judgment of others.”  Taking unpopular positions comes with criticism and no one should expect that the people relinquish their right to criticize.
    Thus what Greece v. Galloway states when it comes to religion is that the First Amendment does not protect individuals from being shunned or criticized by the public.  Feeling offended is different from being coerced.  And it when it comes to campaign finance laws, especially disclosure, Galloway declares that short of real proven harassment and intimidation, being shunned, criticized, given dirty looks, or being subject to public judgment is not chilling but part of what should be expected when one takes political positions.  The standard regarding what constitutes coercion in Galloway has precedential implications for disclosure laws, suggesting that more than mere offense or unpopularity of a viewpoint is necessary to implicate First Amendment concerns.

Grading the 2013 Minnesota Legislative Session: C+ for DFL but F on Reform and Bipartisanship

Students across Minnesota are finishing their exams and awaiting their final grades. The 2013 Minnesota legislative session is over and now it is time also  to assess the performance of one-party rule in Minnesota.  So how did the DFL do?  If the legislative session were to be graded, it earned an overall C+ but F grades when it came to working together and in making structural reform.
    Republican State Representative Steve Drazkowski, of Mazeppa, stated it well:  "We had an election back in November. And yes, Minnesota, elections have consequences."  Had Tom Emmer rather than Mark Dayton been elected governor in 2010 Minnesota might well be a state that looks different today with more restrictive laws on voting, abortion, taxes, and perhaps on same-sex marriage.  But Dayton did win and Republicans overreached with the marriage and elections amendments and in precipitating a government-shutdown.  They were ousted, yielding the first one-party rule in Minnesota in 20 years. 
    DFLers promised a lot.  They pledged a balanced budget with no gimmicks, a bonding bill, and a host of other pieces of legislation addressing economic development, bullying, guns, minimum wage, and unionization for day-care workers.  The governor also pledged to solve the funding formula for the Vikings stadium, raise income taxes on the wealthy, invest more in schools, give some property tax relief to homeowners, and transform the sales tax system to include clothing and more services.  All this the Governor and the DFL pledged to do in a bipartisan fashion.  Such a pledge was made out of fear of overreach if they were to purse issues such as legalization of same-sex marriage.
    No matter what post-mortem is written up, this will forever be the session as the one known for legalizing same-sex marriage.  It did so largely along partisan lines and it did so in part because of intense lobbying from supporters of same-sex marriage who unleashed a drove of lobbyists at the Capitol.  It also passed because of the perfect storm of shifts in national public opinion and state views that even if not supportive of same-sex marriage they were not opposed.  Passage of it should relieve Republicans of advocating a losing issue for them, but its legalization may also give DFLers little bonus point in the 2014 House elections.
    Democrats largely delivered on Dayton’s tax pledge for the  wealthy will pay more, but largely abandoned the reform of the sales tax system, opting instead for the safer option to go after smokers with $1.60 more per pack.  This tax will be used for general revenue and to help finance the Vikings stadium.  In do the latter, the governor and the legislature are essentially using tax dollars to finance the stadium, and there is no clear indication that these revenues will be enough to offset the miserable pull-tab revenues.  The State is addicted to addiction, counting on smokers to continue to smoke and not using the new revenue to offset smoking-related expenses.
    The budget was done on time barely, and DFLers displayed terrible time-managed skills and the ability to reach consensus among themselves, revealing what came close to single-party gridlock. But whether the budget was done gimmick-free and balanced is a matter of debate.  Originally pledging to pay back the K-12 shift, that was abandoned by the DFL.  Additionally, the  nearly $800 million borrowed off the tobacco bonds last session should have been paid back, and that too is not reflected in the balanced budget.  The State failed to make any real changes in any tax law to make it more stable–such as a change in property taxes to help in-state businesses, or adjust sales taxes.
    Single-party rule also produced a stripped-down bonding bill to pay for capitol renovations,  money for Rochester and the Mayo Clinic, tax credits for Mall of American expansion, more money for K-12, a freeze of public university higher education for two years, a daycare unionization law, and some property tax relief for home owners.  One should also not forget that the health care exchanges were created to allow state implementation of Obamacare.  All of these are significant accomplishments.  The DFL failed on enacting anti-bulling legislation, a new minimum wage bill,  and significant gun legislation.  For all of these changes the DFL deserves an overall C+ grade–it delivered on many of its promises.
    Yet the legislative session failed to produce much in terms of bipartisanship.  Too many of the votes followed party lines, revealing a state largely divided.  Both the Democrats and Republicans will go to the voters in 2014 telling their side of the story, leaving Minnesotans the final  verdict regarding whether the Democrats deserve to hold on to the governorship and House majority  control.
    Finally, where the DFL really failed was in terms of structure reform.  There was no comprehensive sales or property tax reform.  There was no major reform of the way government does business.  But more sadly, the biggest story the media has taken a pass on is how this is a legislative session that not only failed to take the chance to make structural reforms but actually moved in the wrong direction and caved into lobbyists and special interests on a range of issues.  The legislature passed campaign finance un-reform legislation that would increase contribution and spending limits dramatically, allow for lobbyists to give more gifts to legislators, and also increase the level of disclosure for contributions, thereby making it easier for many, including lobbyists, to give more money but with less disclosure and transparency. To a large extent, this is a dismantling of the remaining vestiges of the Marty reforms from the 1990s and a giant step back in government integrity.  Minnesota has already had shrunk and fallen from its heyday when it was national leader in political ethics, earning failing and near failing grades from the non-partisan Center for Public Integrity in these areas. The new changes do nothing to reverse that trend.  For these reasons, the session deserves an F when it comes to structural reform, doing little to change the way the State does business for good.

Beyond Citizens United: Fixing the American elections system

Note:  Today's blog originally appeared in Minnpost on November13, 2012.

In post-election statements, both Sen. Amy Klobuchar and Rep.-elect Rick Nolan called for campaign finance reform. They singled out the role of big money and negative ads in campaigns, demanding among other things, an overturning of the Supreme Court's 2010 Citizens United v. Federal Election Commission. Campaign-finance reform is needed, but the American election system is broken, demanding even broader changes beyond reversing Citizens United. These changes extend to the role of money in politics, voting, and the quality of political debate and information.

Money and politics

Citizens United is one of many Supreme Court decisions that try to define the role of money and speech in American elections. Concern that money corrupts the political process goes back to the 19th century. Beginning in 1907 with the Tillman Act, federal law made it illegal for corporations to make direct political contributions to candidates for federal office. In 1947 the Taft-Hartley Act did the same for labor unions.

Many states have similar laws. The concern, especially with corporations, as Chief Justice Rehnquist once stated in First National Bank of Boston v. Bellotti (1978) is that the government might reasonably fear that a  "corporation would use its economic power to obtain further benefits beyond those already bestowed."  The task is now to prevent the conversion of resources amassed in the economic marketplace from corrupting the political marketplace.

What Citizens United actually did was to say that corporations (and unions) have a First Amendment right to make direct expenditures from their treasuries to make independent expenditures to advocate for the election or defeat of a candidate for office. The decision did not overturn the ban on direct contributions to candidates, but it overturned laws  that made it illegal for corporations to spend money independently to support a candidate for office.

Is Citizens United responsible for the $6-8 billion election cycle spending that just concluded? Yes and no. Prior to Citizens United, corporations already had lots of ways of getting around the law. They could do issue ads that attacked candidates but did not expressly urge their election or defeat. They could set up political action committees. They could fund get-out-the-vote, voter-registration, and voter-education programs. Individual corporate officers could give money. There were many ways around the law.

Citizens United did not necessarily mean that more money would go into elections; instead it meant that money would enter in different ways and with less transparency. Given that it was illegal for corporations to make express advocacy independent expenditures before Citizens United, when the Supreme Court declared that ban unconstitutional there were no laws in place to force corporate disclosure.  The intensity and closeness of the 2012 elections probably explains how much money was spent; Citizens United tells us about why, in part, we do not know who spent it.

In addition the Citizens United decision was built upon in a 2010 Court of Appeals decision, SpeechNow.org v. Federal Election Commission, that allowed for the creation of Super PACS that could accept unlimited political donations from corporations, unions and individuals to engage in independent expenditure express advocacy. With limited disclosure and often innocuous sounding names, these groups provided another outlet for money.

Finally, the transparency problem with money was exacerbated in 2012  by the misuse and hijacking of nonprofits. Basically, there are two types of nonprofits under the federal tax code. Entities classified as 501(c)(3)s are prohibited from engaging in partisan politics as a condition of donations to them being tax deductible. But contributions to nonprofits classified as 501(c)(4)s are not tax deductible, and they may engage in partisan politics  and endorse candidates for office so long as that political activity is not a major purpose of their activity.

There is extremely limited disclosure required on nonprofits in terms of donors, and there are no contribution limits to them. Corporations and wealthy donors used them as laundering mechanisms to escape disclosure requirements.

So what could be done on campaign finance? More disclosure is needed and efforts to pass the Disclose Act to force that is a first step. But partisan opposition to it in Congress has prevented that. Overturn Citizens United? That requires a constitutional amendment and that means two-thirds vote of both the House and Senate and ratification of three-fourths of the states. Little chance there. The Supreme Court could reverse itself, but unless President Obama can replace a conservative Supreme Court Justice, that option, too, looks unlikely.

Yet President Obama could act on his own to mitigate some of the problem. He could issue a procurement rule barring corporations from making express advocacy independent expenditures  above a certain dollar amount as a condition of bidding on federal contracts.  Here the issue is about conflict of interest.

Additionally, he could direct the Securities and Exchange Commission to engage in rule-making to require shareholder assent before expending money for political purposes. The issue here is protecting the First Amendment rights of shareholders not to have their money spent for political causes they do not support.  This rule would parallel those already found with unions and their members.

Third, Congress could change the tax code to require more disclosure for nonprofits that use money for political purposes. The president alone might also be able to direct the IRS to do that.

Voting

The defeat of the voter ID amendment is a rare victory in the battle to fight the second great wave of disenfranchisement in American history. The first wave was after the Civil War and when  Reconstruction ended. It ushered in the Jim Crow era and a 100-year effort to prevent African-Americans from voting.

Voter ID, based on the erroneous claim of widespread voter fraud, is one part of this disenfranchisement. Across the United States in the last few years many states have enacted voter ID and other laws such as cutting back on early voting and restricting voter registration  drives. Pre-election voting-rights litigation was significant in 2012. The United States effectively has 50 different state laws regarding voting. Were it not that Obama won the 2012 presidential race so decisively, problems this year in Florida would be holding up the election results yet again.

One solution is to use federal voting rules and procedures. The Constitution gives Congress the authority to regulate federal elections. Congress could construct rules regarding voter eligibility, ban voter ID, allow for early voting, or whatever else it wants to do. Uniformity and fairness across states in elections too.

Political speech and rhetoric

The final critique is that political campaigns have become too negative and nasty. Maybe. They are tame by comparison to the 19th century. But there are limits regarding what can be done to regulate political speech.  The Supreme Court correctly in its 1964 New York Times v. Sullivan gave broad First Amendment protection to speech that criticizes public officials and candidates. A free society should encourage robust political debate, and it should be the people and  not judges or government officials who decide what is true. Moreover, attack ads will continue to be used so long as they are effective and voters respond to them.

The bigger problem now is that voters have developed partisan choices when it comes to the consumption of news. The world is increasingly divided between FOX and MSNBC. It seems all of us want our own truth now. The rise of the new and social media has done little to encourage voters to seek out alternative information.

One solution to this would be to reinstate the fairness doctrine and vigorously enforce the equal time doctrine, requiring television and radio to offer opposing viewpoints. The public has a First Amendment right to a diversity of viewpoints and broadcasters, as a condition of holding a license, should be required to honor this.

Overall, Klobuchar and Nolan are correct that the American elections system is a mess.  But the causes are varied and the fixes more complex than they realize.