A Note on Federal Campaign Finance Reform: Limiting the Right to Make Campaign Contributions Without Violating the First Amendment

7/29/2019 A Note on Federal Campaign Finance Reform: Limiting the Right to Make Campaign Contributions Without Violatin

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A Note On

FEDERAL CAMPAIGN FINANCE REFORM

Limiting The Right To Make Campaign Contrib11tionsWithout Violating The First Amendment

William G. Grigsby*

April2013

Professor Emeritus, City and Regional Planning, University [email protected]


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I would like to thank Professor Richard Hasenfor his very generous advice and encouragement --commencing well before the Citizens Uniteddecision - in helping me formulate this newapproach to federal campaign finance UHaRUP


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EXECUTIVE SUMMARY

The Supreme Court's decision in Citizens United v.Federal Election Commission 130 S. Ct. 876 (2010),spawned an almost immediate outpouring of campaigndonations by corporations, unions, and wealthy individualsto Presidential and Congressional .candidates. The bulk ofthese new contributions are made through so-called SuperPACs and non-profit social welfare organizations(501(cX4)s that run campaigns supporting particularcandidates while maintaining, at least on paper, theirindependence from the campaigns of hese candidates.Even i f the large contributions unleashed by CitizensUnited do not lead to quid pro quo corruption or theappearance thereof (and they clearly do the latter) theyhave a devastating impact on America's representativedemocracy by enabling a relatively few wealthy individualsand large corporations and unions to have overwhelminginfluence over elected officials and election outcomes, andin the process to substantially weaken the influence of thepeople that candidates and office holders are supposed torepresent. According to one reputable study, in federalelections the candidate with the largest war chest wins 94percent of the time. It is not simply the size of somecontributions that is a problem, it is equally or more so thefact that the large donors, can vote with their dollars forcandidates anywhere in the country. In so doing, they areundermining this country's representative democracy andreplacing it with a political system best characterized asgovernance by the wealthy few - an unvarnishedplutocracy.Most regrettably, none of the remedies which have beenproposed to address this problem would do very much tosolve it. They leave the Citizens Unision largelyuntouched, and they only peripherally address the federalcampaign finance excesses that were already in place priorto Citizens United.I f representative democracy in the United States is to besaved, five changes in current law must be made:

1. The right to make financial contributions in afederal election campaign, whether directly to a candidateor through a PAC or Super PAC or a 50l(cX4)organization, must be restricted to eligible voters in the

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political jurisdiction in which the election is being held.Rephrased, the right 'to make contributions must bco-terminus with the right to vote. Voters inCongressional District should not have the value of the:franchise diluted by donations coming from outside theDistrict or by non-natural persons domiciled within theiDistrict. Placing boundaries on voting speech but not ocontributions speech - the need for which exists onlbecause of the prior right of citizens to exercise votinspeech- makes no sense either Constitutionallyor in termof simple logic.

2. For this proscription not to violate the freedom ospeech portion of he First Amendment, the Supreme Courmust abandon the legal fiction that political donations are form of speech no different from ordinary speech. Likconstruction loans that enable a home to be built, money iusually needed ifpolitical speech is to be heard, bu t it is nosynonymous with that speech. To argue otherwise is grievous error in logic.3. Contributions that are made through the Super PACindependent-expenditure campaigns (IECs , and 501(c X4)

by persons and entities that are ineligible to cast a ballomust also be prohibited because they are not functionallydifferent from either direct contributions or contributionmade through PACs despite their presumed independencfrom the campaigns of he candidates they are assisting.4. With respect to contributions to Presidentiacandidates, both the primary campaigns and the generaelection must be treated as 51 separate campaigns becausthat is exactly what they are. In the primaries, the generarules and regulations vary hugely from state to state, and inthe general election, the electoral college in effect makethat contest a collection of individual state elections, not asingleQDaRQDne.5. In order to prevent the above restrictions from beingcircumvented through the mis-use of so-called issue adsany such ad that includes the name ofone of he candidatefor office should be treated as electioneering and subject tothe same rules as those for campaign contributionsgenerally.

Absent these reforms, we can kiss the great Americanexperiment in representative democracy good-bye.


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BaekgroudThe Supreme Court's 5-4 decision in CitizensUnited v. Federal Election Commission (FEC) 130S. Ct. 876 (2010), has ushered in a new era in thefinancing of federal election campaigns. Inremoving almost all limits on campaigncontributions, this decision, as expanded upon inSpeech Now v. FEC, 599 F.3d 686 (D.C. Cir.2010), has intensified, rather than settled,controversies over what are appropriate rulesregarding donations to candidates for federal office.Partially overturningaRecent Court decisions-Austin v. Michigan Chamber ofCommerce. 494U.S. 650 (1990), and McConnell v. FEC. 540 U.S.93, (2003) -- as well as century-old campaignfinance law, the Court majority concluded that theFirst Amendment to the Constitution:(a) gives organizations the same rights asnatural persons with respect to their financialinvolvement in fedel election campaigns(upholding First National Bank of Boston v.Bellotti. 435 U.S. 765 (1978); and

(b) permits corporations to make expendituresfrom their general treasuries for electioneeringcommunications i f these activities are notcoordinated in any way with those of he candidatebeing supported.This new freedom spawned, not surprisingly, thecreation of a number of independent-expenditurepolitical action committees (Super PACs) thatpoured huge amounts of money into the 2010Congressional races and then again in the 2012campaigns. There has also been an expansion ofactivity by social welfare non-profit organimtions(S01(cX4)s) which are allowed to use up to 49percent of heir contributions for political advocacywithout revealing the identity of their donors. Inan effort to reduce this torrent of dollars flowinginto federal election campaigns, several proposalshave called for a Constitutional amendment givingfree speech protection only to natural persons. 1

1 Jeffrey Clements, C01p01'8tions Are Not Pewle(San Francisco: Berrett-Koehler, 2011 ).

In addition, several legislative remedies have beenproposed in Congress, particularly:(a) The Disclose Act requiring full andprompt disclosure of the names of the individualsmaking contributions through Super PACs,whether they have done so directly or throughdummy organizations. Although it was theopinion ofeight of he nine Supreme Court justices(Justice Thomas excepting) in the Citizens Uniteddecision, 130 S.Ct. at 913-914, that Congressshould legislate such a disclosure requirement, theproposed Act has languished in Congress largelybecause ofstrong resistance in some quarters on thegrounds that such a requirement would have achilling effect on advocacy speech.

(b) The Fair Elections Now Act (FENA) whichwould provide partial public funding ofCongressional campaigns, mainly throughmatching grants to candidates who were able toraise funds through small donations. 2 Thisapproach has been resisted for ideological reasonsand perhaps also because opponents feel that itwould result in even more of the same low qualitypolitical advertising that already alienates so manypotential voters.Two otlier proposals pre-dating Citizens United bya number of years also have gone nowhere. Thefirst, which would give voters a voucher thatcould be used to make campaign donations. Thesecond, in anticipation of the current FENAproposal would require that the names of allcontributors be kept secret from candidates,removing the possibility ofquid pro quo coiTUptionor appearance thereof. 3

2 Lawrence Lessig, Rej>ublic Lost: How MoneyCorrupts Congress and a Plan to Stop It. (NewYork: Twelve/Hatchette, 2011 ). Adam Skaggs andFred Wertheimer, "Empowering Small Donors inFederal Elections" Brennan Center For Justice(2012). '3 Bruce Ackerman and Ian Ayres, Voting WithDollars: A New Paradigm For Campaign Finance.New Haven: Yale University Press, 2002.

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An Unexplored Facet Of The ProblemPossibly because Citizens United involved aPresidential campaign, not a Congressionalcampaign, none of the discussions or suggestionswhich were precipitated by the decision haveaddressed an equally or more important questionwith respect to current campaign finance law.Why should any entity - whether it be acorporation, union, PAC, Super PAC, 501(c)4),nformal group, or person - not having the right tovote in a particular election still have the FirstAmendment right to influence the outcome of thatelection through direct or indirect financialassistance to one of he candidates?Dlustrative of the critical importance of thisquestion is the 2008 election campaign ofMontanaSenator Max Baucus. In this campaign, SenatorBaucus received a mere 15 percent of his $8.4million in campaign contributions from individualsand organizations domiciled within the Grizzlystate.4 Eligible voters in Montana provided aneven smaller proportion of the financial supportfor his successful re-election effort Theiraggregate contributions did not even equal theaggregate contributions from the health industry'spolitical action committees (PACs) alone. 5Indeed, Montanans were barely in the Baucusre-election game at all. And this was well beforeCitizens United.Equally disturbing, Montanans did not have anadequate voice in the selection of the Senatorialcandidates they would get to vote on. Outsideinterests not only overwhelmed eligible Montanavoters during the campaign itself, they almostcertainly deterred possible candidates for theBaucus seat from even getting into the race. Afterlooking at the Senator's huge, largely out-of-statefinanced war chest, these potential opponentswould reasonably have concluded that it made nosense to challenge him.

4 Compiled from a list of contributor names,addresses, and contribution amounts filed with theFederal Election Commission.' Ibid3.

The financing of Senator Baucus's campaign is notan isolated example. All Congressionalcampaigns are funded to a large extent, bothdirectly and indirectly, by those who are noteligible to vote in the election whose outcome theyare seeking to influence. As would be expected,the proportions vary with the closeness of the raceand other factors, but in nearly all elections,contributions by persons and entities who areineligible to vote play a pivotal role in the outcome.According to the Center For Responsive Politics,the largest fund raiser wins Congressional elections94 percent of the time. The Citizens Uniteddecision merely opened up new sources of support.Money is, of course, not only necessary to enablepoliticians to be heard by potential voters, it is alsofrequently necessary if politicians are to bepersuaded to listen. In this latter sense, moneydoes indeed talk. I f contributions were unableto "talk'' to candidates, they would soon dry up, anda First Amendment issue regarding campaignfinance support would not arise. This is especiallytrue with respect to contributions from thoselacking voting eligibility because donations aretheir only tool of potential influence.Congressional candidates should be expected,therefore, to do their best to represent theirnon-conStituent contributors as vigorously as theydo potential voters, because both groups areinstrumental to the success of their campaigns.Through their donations, non-constituentcontributors, not just voters, become constituents tobe served.The legitimacy of non-constituent campaigncontributions is so much an accepted fact ofpolitical life that it is not questioned in discussionsof campaign finance reform. Only the rules forsuch contributions are debated. But allowingcontributors who are not eligibleYRao becomeconstituents of a successful candidate on an equalfooting with eligible voters . automaticallydiminishes the First Amendment rights of theeligible voters. The money-speech rights of thenon-eligibles lessen the ballot-speech rights of theeligibles. They do so by offsetting to varyingdegrees the efforts of eligible voters to affectelection outcomes and to influence the views of


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their elected representatives. The speech ofeligible voters is often not even heard by those atwhom it is directed. I t is blocked out by themoney speech of hose who are barred from castinga vote. This is unavoidably so, even i f he outsidemoney does not talk too much; that is, lead to quidpro quo coJTUption.Nevertheless, in several of its decisions, theSupreme Court has concluded that it is only thedanger of quid pro quo corruption or the possibleappearance of such coJTUption that constitutessufficient reason for narrowing First Amendmentprotection of contributions speech. In CitizensUnited the Court stated that "the fact that speakersmay have influence over or access to electedofficials does not mean that these officials arecorrupt'' and also that "ingratiation and access ..are not corruption" (130 S. Ct. at 910).Even in the absence of provable or apparent quidpro quo coJTUption, however, allowing campaigncontributions to be made to PACS or to SuperPACs or to 50l(cX4)s or directly to candidates bythose who are not eligible to vote COJTUpts the corestructure of America's system of representativedemocracy in at least five ways. It does so by:

(a) shaping some legislation in ways that favorthe interests of those whom the office holders havenot been elected to represent at the expense of theirvoter constituents;(b) almost fully nationalizing some

&RQJUHVVRalections with a corresponding shiftofpolitical power away from state electorates;

(c) breeding disillusionment among eligiblevoters about our political system;(d) discouraging well qualified persons fromstanding for office.

(e) creating, in effect, government by a wealthyfew, an unvarnished plutocracy.

In addition, and critically important, using FirstAmendment protection as the argument forallowin those who are ineligible to vote the rightto make contributions to candidates, either directlyor through independent expenditure campaigns,defies simple logic. The right to express one'sopinion through voting is highly circumscribed,being provided only to persons who are eligible tovote by reason of age, place of residence, andcitizenship. Since the right to make campaigncontributions emanates from this right to vote (i.e.without the right to vote the need for campaigncontributions would not arise), it makes no sensethat the right to influence the outcome of anelection through contributions speech is extendedto a broader segment of society than is the right tovote itself.This point may have escaped the Court majority inits Citizens United decision. Following the Courtplurality in Buckley v. Yaleo. 424 U.S. 424 (1976),and Justice Scalia's dissent in McConnell. 540U.S. at 250-255, in which he argued that theproposition that ''Money Is Not Speech" isfallacioUs, even the majority on the Court treatedcontributions speech and speech qua speech asvirtually synonymous. Throughout its opinion,"speech" and "contributions" are usedinterchangeably, and the fact that money speechand speech qua speech are different is mentionedonly in passing in Justice Stevens' dissent. Yet asthe Court itself has recognized in allowingrestrictions on the size of campaign contributionswhile simultaneously upholding the right ofeveryone to speak out on any political matteranywhere at any time, the two types of speech arequite different even within the context of the FirstAmendment. This difference, which has beenpersuasively argued elsewhere, should be reflectedin campaign finance law.6

6 Deborah Hellman, "Money Talks But It Isn'tSpeech", Minnesota Law Review, vol. 25, 2011.4 .


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Possible Solution To The Campaign FiDaaeeProblemI f one accepts the fact that speech in the form ofcampaign donations is different from ordinaryspeech and that the right to make donations derivesfrom the right to vote, then it follows thateligibility limits with respect to contributionsspeech (though not actual speech) should beco-terminus with eligibility limits for voting speeckIn federal elections, candidates should be allowedto accept financial contributions only from eligiblevoters in their state or Congressional district.In keeping with the Court's reasoning in CitizensUnited that individuals usually must join togetherin organizations if hey are able to amass the dollarsnecessary to get their message heard, anyorgani:ration ofany type should be allowed to makedonations to its PAC (Donations to Super PACsand 501(c)(4)s are dealt with in the next section)for use in support ofa Congressional candidate, butwith one key caveat. Since an organization shouldnot have broader contribution speech rights thanthose of he persons who make up the organilJJtion,the donations which the organi:mtion or its PACmakes to candidates should come only frompersons pre-identified as eligible to vote in theelection being contested. Thus, i fGoldman Sachswished to make a $25,000 contribution to SenatorBaucus through its PAC, all of he funds that werebundled together for that donation should comeonly from persons having a voting residence inMontana.Allowing only eligible voters to make campaigncontributions extends a principle alreadyestablished in law. Just as British citizens andBritish organizations are not allowed (at least onpaper) to fmancially support candidates for federaloffice in America, Californians and Californaorganizations using money raised outside Montanawould no longer be allowed to similarly interferewith Congressional elections in Montana. Also,Montana organimtions could not make politicalcontributions in Montana elections using fundsobtained from out-of-state members, employees,stockholders, customers, or other supporters.Even though the persons whom Montanans elect s.

may be expected to support or oppose legislation inwhich people in other states have a keen interest (orthis contribution issue would not even arise), this isnot sufficient reason to allow contributions thatwould serve to weaken the political influence ofMontanans over their own elected representatives.By permitting only HLJaRH voters to makecontributions, the electoral playing field wouldbecome less unequal as between political interestshaving no right to vote in a particular election andthose who do have that right. And corporationsand other organizations would not be totallyprevented from making campaign contributions butrather would simply be put on an equal footing withnatural persons.The Super PAC ud 501(e)(4) ProblemUnfortunately, by allowing contributions that aremade to the independent expenditure campaigns ofSuper PACs and 501(c)(4)s to be treated as notcontributions to candidates, the Citizens Uniteddecision (following Buckley) totally vitiates thejust described eligible-voter route to campaignfmance reform. By decreeing that these donationsare not the equivalent of direct contributions tocandidates even though their avowed purpose is thesame, Citizens United makes it possible fordonatiot;s to be made in unlimited amounts toindependent expenditure campaigns. The Courtmajority's argument for this treatment is that i findependent expenditure campaigns are indeedtotally independent of the campaigns of thecandidates whom their sponsors are supporting,neither the incentives for quid pro quo corruptionnor the appearance of such corruption are likely tomaterialize, as they might in connection with directcontributions to candidates or contributions that arefunneled through ordinary PACs.The only way to remove this barrier to campaignfinance reform is to persuasively rebut thisreasoning so that PACs, Super PACs, 501(c)(4)sand individual donors would all be treated equally.I f that were done, contributions regardless ofsource could come only from eligible voters, andwould be capped at the same level or possibly not atall. (In the latter case, wealthy donors couldremain king makers in their states but not


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elsewhere.) Four arguments support such arestriction on Super PAC and 50I(c)(4) donations.First, even though independent expenditurecampaigns are required by Citizens United to_ becompletely separate from the campaigns of thecandidates they are supporting, in practice most ofthem are functionally a part of candidates'campaign apparatus. The two campaigns haveprecisely the same objective. Their key staffmembers have often worked together before. Andanecdotal evidence indicates that some of theseemingly separate campaigns do interact witheach other. In brief, the notion that independentexpenditure campaigns are more than rarely trulyindependent is a bit of a sham, as is now widelyacknowledged. Yet corrective legislation has notbeen proposed.Second, the assumption of the Court majority thatquid pro quo corruption or the appearance thereof sless likely in the case of independent expenditurecampaigns than it is in connection with directdonations to candidates could not be more wrong.The persons who donate to these campaigns arewell known to the candidates. The huge sumsinvolved are embossed invitations to quid pro quocorruption and foster the widespread perceptionthat the invitations are usually accepted. Indeed,the concerns about such corruption that werevigorously expressed by Justice Stevens in hisCitizens United dissent do appear to havematerialized in the 2012 Presidential andCongressional campaigns.Third, since contributors to Super PACs and50l(c)(4s) have the same objective as those whomake contributions directly to candidates or toPACs, i.e. to elect a particular candidate, theyshould be subject to the same voter-eligibilityrestrictions. The way in which they make theircontributions should be irrelevant.Fourth, and consequentially the most important, thehuge flow of contributions into independentexpenditure campaigns :from other than eligiblevoters, just like contributions from ineligiblevoters that go directly to candidates, is underminingAmerica's system of representative democracy by

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sharply diminishing the ability of eligible voters toinfluence election outcomes and the contours offuture legislation. Even in the absence of thepotential for quid pro quo corruption, thisdiminishment of franchise value should be acompelling reason to curtail such contributions.It is important to emphasize that the voter eligibilityrestriction would apply only to speech qua speech.It would in no way diminish the First Amendmentright of an ineligible voter to contribute to acandidate's campaign by speaking out directly forthe candidate. The ineligible voter would beprohibited only from hiring someone else to do thespeaking or from contributing to a Super PAC orSO I (c)(4) for that purpose. Ordinary speech by theineligible voter would be unconstrained. To explainby example, Nebraskan Warren Buffett using hisown money and speaking for himself could carpetMontana with TV ads endorsing Senator Baucusfor re-election, but he could not contract out theelectioneering to others.Because under Citizens United. political speechmay not be suppressed on the basis of he speaker'scorporate identity, Mr. Buffett's BerkshireHathaway firm would have the same right to speakout as does Mr. Buffett himself. And just like Mr.Buffett, ib.e firm CQuld not under this proposal hiresomeone else to do the sPeaking, because thatwould be functionally the same as simply givingthe candidate the money necessary to hire a speakeror to put together an ad. Berkshire Hathawaywould somehow have to do the speaking itself.Consistent with such reasoning, the only allowableWa.y for the firm to do so would be by having itschief executive officer (in this example, Mr.Buffett) be the person making the presentation.This bit of inconvenience is unavoidable i forganizations are to be placed on equal FirstAmendment footing with natural persons and i f aFirst Amendment difference between speech quaspeech and contributions speech is to be given legalrecognition.Although requiring that those who are not eligibleto vote but who wish to speak out must do so intheir own voice may impose an inconvenience, it isnot a Constitutionally impermissible restriction of


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speech since it affects only the manner ofexpression, not speech itself. Potential small-sumdonors would not, of course, be able to reach alarge audience in their own voice. But in returnfor not being able to make donations anywhere theywished, they would be assured that their ownelections would not be similarly corrupted. .The Question OfPresidential CampaignsAlthough the Citizens United case arose within thecontext of a Presidential primary, the bulk of thispaper has focused on the financing ofCongressional campaigns. The reason for doingso is that the residency requirement which isproposed here with respect to contributors toCongressional candidates would not be applicablein Presidential campaigns, since under current lawboth the state-by-state presidential primaries andthe general election are treated as single nationalcontests. As a consequence, the campaigncontributions to a Presidential candidate could,even under this proposal, be spent by the candidateanywhere in the country regardless of the place ofresidence of he contributor.Because the Presidency is a national office, treatingthe Presidential primaries and general election asnational campaigns has a certain internal logic, butit is a logic that disappears on closer examination.The primaries are clearly state-by-state affairs.Not only are they held sequentially, theirparticipatory rules vary widely, as do their rulesgoverning the ways in which the delegates aredivided up between winning and losing candidatesand also the legal responsibilities of he delegates atthe party conventions. The general election might.seem, by contrast, to be truly a nationalreferendum, but since this election is decided in theElectoral College, not by popular vote, it too isreally an amalgamation of 51 separate contests inthe states and District ofColumbia.Given that our Presidential elections are designedso as to reflect state-wide, not nation-wide,preferences, regulations regarding campaigncontributions should conform to this ammgement.Only persons eligible to vote in a particular stateshould be allowed to make contributions to the

campaigns of Presidential candidates in that state.And their contributions should be spent in that stateor not at all. Under such a restriction, candidateswould be unable to concentrate their spending inswing states while ignoring most of the rest of thecountry. Presidential candidates using their ownwealth to finance their campaigns would not berestricted in their expenditures in their own state,but in other states, they could use their own moneyfor ads only i f hey did the narration.The Proposal Summarized And RephrasedThis proposal focuses on a central but indefensiblefeature ofcurrent federal campaign finance law thathas been ignored by the Supreme Court in CitizensUnited and prior decisions - the right of personswho are not eligible to vote in a particular electionto affect the outcome of that election throughcampaign contributions. This right has not beenquestioned because the Court has mistakenlydeemed contributions speech to be equivalent tospeech qua speech for First Amendment purposes.It is this Court-declared equivalency that is at theroot of the misguided Citizens United decision.Contrary to the Court's opinion, importantFirst-Amendment relevant differences betweencampaign contributions and campaign speech doexist. The notion that proscriptions on contributionswill correspondingly constrain speech is simplywrong. And much of the mischief in the CitizensUnited decision arises from that notion.In order to preserve the country's system ofrepresentative democracy and prevent it frombecoming a plutocracy with governance exercised,in effect, by the wealthy few, four changes incurrent law are needed: These changes wouldapply to Congressional and Presidential electionsalike.

1. Only persons who are eligible to vote in thepolitical jurisdiction in which a federal election isbeing held should be permitted to makecontributions to the campaigns of candidates inthat election either directly or. through a PAC orSuper PAC or 50l(c)(4).7.


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2. Persons who are not eligible to vote in aparticular federal election and therefore notpermitted to make contributions to candidates inthat election should, nevertheless, be permitted tospeak out for or against a candidate. They should,however, be required to do so with their ownresources and in their own voice, not pay someoneelse to present their views for them.

3. Corporations, unions, and other associations,should also be permitted to support candidates i fthey do so either by using only funds provided byeligible voters or by speaking in their own voice. Inorder for an organi:ration to speak in its own namein a manner that would be in conformance with thisproposal, the chief executive officer of theorganization would have to make the presentationpersonally. An advertisement in which the CEOwas not the lead participant would be deemed to bea contribution and not permissible unless it hadbeen funded by eligible voters. Llike the CitizensUnited decision, this restriction would serve totreat natural persons and corporations equally.

4.While individuals would continue to beallowed to fonn Super PACs and 501(cX4)s, theseorganizations would be subject to the samerestrictions as those for PACS. Theirelectioneering communications would have to befunded by eligible voters. Otherwise theircontributors would have to speak in their ownvoice. In addition, contributions to PACs, SuperPACs and 50l(c)(4)s would be capped at the samelevel.Tile Maddy Road AheadEnactment of either this campaign finance reformproposal or any of the others that are presentlybeing discussed would not end the federalcampaign financing problem entirely. In the caseof this proposal, campaign contributions in theform of ordinary speech by the donor couldpossibly also lead to quid pro quo corruption.With respect to the other leading proposals, allwould be helpful but none of hem offer much hopeby themselves for significant change. To elaboratebriefly on this pessimistic conclusion:

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1. Partial public financing of federal electioncampaigns: Although this approach did not offersufficient funds to the Obama campaign in 2008 forhim to take the public funding route, i f he amountof needed campaign funding were estimated byCongress with reasonable accuracy, a high rate ofcandidate participation could be expected. Still,other possible barriers to its success would needattention. First, without companion legislation,the refonn would leave independent expenditurecampaigns untouched, as one of the HDGQaproponents of this reform himself conceded.Second, since political campaigns are aboutwinning, not educating, tax payers might findthemselves paying for the same objectionablerhetoric which they now criticize. And i f thathappened, would they stand for it? Onepossibility would be to allow public dollars to beused only for debates, but whether that would beboth feasible and helpful is open to question.

2. Full and timely disclosure of the names ofcontributors: More transparency with respect tothe sources ofa candidate's campaign funds shouldcause at least some donors to think more carefullyabout what the content ofads that are funded in partwith their money, and this added attention mightraise the average quality of political advertising.Greater transparency would also, according toopponents of his idea, reduce the dollar volume ofdonations through its chilling effect on those whowould fear reprisal i f hey spoke out. That is notnecessarily an outcome not to be desired. Themain problem with greater transparency is that it isnot a game changer. Indeed, more disclosure isprovided by the proposal outlined in this paper thanby the revised Disclose Act now before Congress.

3. A Constitutional amendment declaring thatthe freedom of speech portion of the FirstAmendment is applicable only to natural persons:Since this widely promoted refonn would leavewealthy contributors untouched, domination ofCongressional elections by outside interests wouldcontinue at a lower but still unacceptable level.

7 Lessig op. cit. p. 271.


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4. Uncapping of campaign contributions with arequirement that contributions in excess of aspecified amountnand make independent expenditures campaignunnecessary. Ironically, it would also likely causean even greater drying up of largedonations thanwould full disclosure, confirming beliefs that theentire system of federal campaign finance iscorrupt.8 So anonymous giving might have to besupplemented by public subsidies with their ownset ofproblems.It seems clear from this quick review of federalcampaign finance reform proposals that despitewidening concern over the consequences of theCitizens United decision, significant reform is notnear at hand. There is absolutely no way thatcurrent excesses and also those which precededCitizens United will be eliminated unless the rightto make campaign contributions in a particularelection is restricted to eligible voters in thatelection. And there is little likelihood that thisrestriction will be imposed unless the SupremeCourt makes a legal distinction between actualspeech and speech in the form of campaigncontributions.Even i f what is proposed here were to become lawand restore some integrity to the federal electioncampaign process, there are at least two reasonswhy one should still not be sanguinDMGONIMDVONGMIOstreason has to do with so-called issue ads. Sincethese ads are not regarded as electioneeringcommunications i f they do not endorse anycandidate, they are exempt from meeting thedisclosure requirements and campaign contributionlimits of the Federal Election Campaign Act of1971. I f he ads do not use what have been termedthe "magic words", such as "Vote For Smith", theyare deemed to be in compliance with the Act.Through clever wording, issue ads have been ableto clearly support particular candidates withoutusing the magic words. And their apparenteffectiveness has been sufficiently worrisome to1 Lessig, op. cit. pages 262 and 263.

result in Congressional hearings. Yet nothing hasbeen done about the problem, partly becauseCitizens United has made the ads unnecessary. If,however, restrictions were placed on contributionsto independent election campaigns, as is proposedhere, there would be an immediate rush back to theuse of issue ads both by various interest groups andby CEOs who would rather express themselvesthrough such ads than through their own voice.And this would effectively eviscerate anylegislation based on the proposal outlined here.It is essential, therefore, that putting an end to thegross mis-use of issue ads be part of the reformpackage. Contrary to what one might think,particularly given the failure of Congress to dealwith the "magic words" problem, it would berelatively easy to craft rules for issue ads that wouldprevent disguised electioneering and also befeasible to administer. For example, there couldbe a simple requirement that within 90 days of afederal election, advertisements that referred in anyway to that election or to any of the candidateseither indirectly or by name would be presumed tobe intended to influence the outcome of he electionand therefore to be treated as electioneering.The second reason to withhold one's optimismabout the extent of the improvement that could beaccomplished by this proposal is that some of thepower relationships in Washington which are soimportant in shaping legislation would be largelyunaffected. The many widely reported ways bywhich political influence is exercised, eitherthrough long established networks or throughsophisticated lobbying strategems such as thosedescribed in recent books by Lessig, Abramoff, andSchweizer, would continue. 9 Nevertheless,because it would remedy fundamental flaws both inthe Citizens United decision and in prior federalcampaign finance law, enactment of the federalcampaign finance reforms proposed here would bea key first step in preserving our system ofrepresentative democracy.9 Lawrence Lessig, op. cit.; Jack Abramoff, Capitol Punishment (Wash. DC: WNDBooks, 2011); Peter Schweizer, Throw ThemAll Out (NYC: Houghton Miftlin Harcourt, 2011).

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Documents

A Note on Federal Campaign Finance Reform: Limiting the Right to Make Campaign Contributions Without Violating the First Amendment