Coming off the most expensive election in history costing a staggering $6 billion, with nearly one dollar in six coming from outside and "independent" groups you might think the time is (once again) right for campaign finance reform. That may be so. However, in recent terms, the US Supreme Court has substantially limited the options for meaningful reform. In particular, in the areas of independent expenditures and publicly financed matching grants, the Court shot down efforts to rein in money's corrosive effects on politics all in the name of free speech. Still, despite these rulings, the First Amendment continues to leave room for some regulation. If the political stars align in Congress or the states, we could and should see meaningful reform coming out of this election.
The Court's most recent, infamous ruling is, of course, Citizens United v. FEC. In that case, the Court ruled that restrictions on independent corporate campaign spending violated free speech. Then, in Citizens United's wake, the US Court of Appeals for the District of Columbia Circuit ruled in SpeechNow.org v. FEC that a cap on contributions to independent organizations violated free speech. The two cases helped spawn super-PACs and 501(c)(4) organizations, which so effectively aggregated unlimited individual contributions for use as independent campaign speech in the 2012 election.
But the 2012 election revealed two key problems with these organizations (in addition to the sheer amount of money that they spent). First, the organizations are hardly independent. Their messages often seemed closely coordinated with those of the candidates; and even their people often had links to the official campaigns. Indeed, the election showed that truly independent political expenditures may be just a fantasy in today's politics. Next, the organizations shielded the identities of their donors. Federal law allowed these organizations to keep their donors out of public sight, and so we often did not know who was bankrolling the organizations' messages. (This was particularly disturbing when the organizations used out-of-state money to deliver campaign speech in state elections.)
Most recently, the Court put an exclamation point on Citizens United when it summarily reversed the Montana Supreme Court's ruling upholding that state's campaign spending limits. The Montana court said that the state's singular problem with political corruption justified its limits under strict scrutiny, even under Citizens United. But the Supreme Court reversed, effectively ruling that no amount of political corruption could justify limits on campaign spending.
In addition to halting efforts to rein in campaign spending, the Court has also moved in recent years to limit creative efforts to level the spending playing field through public finance systems. Thus, it ruled in Arizona Free Enterprise Club v. Bennett that Arizona's matching system violated free speech. That system provided a participating candidate an initial grant plus a dollar-for-dollar match for any money that a nonparticipating opponent spent above the amount of the initial grant. It was designed to encourage candidates to use the public finance system and to equalize spending in elections between two candidates with grossly unequal resources. The Court overturned the system, saying that the matching grants for participating candidates discouraged nonparticipating candidates' speech.
These rulings undoubtedly limit the range of options for campaign finance reform. But they do not foreclose reform altogether. In particular, there are three key areas for reform that remain viable, even after Citizens United, its progeny and Free Enterprise Club.
First, the Court has left untouched the basic public campaign financing framework. Even under Free Enterprise Club, Congress and the states are free to offer public grants to participating candidates in exchange for certain restrictions on fundraising and expenditures. They can offer public financing systems that encourage participation and level the playing field so long as the grants are not tied to a nonparticipating opponent's expenditures and thus do not stifle an opponent's speech under Free Enterprise Club.
The problem, of course, is that the basic public campaign financing framework is fast becoming obsolete. With the vast amounts of money in our campaigns today, Congress and the states would seem to have to offer super-sized grants to create any meaningful public financing system. (The 2012 presidential election was the first in which neither major party candidate participated in the presidential public financing system.) Still, this option remains fully available. And there are some creative alternatives that at least partially address the problem of scale. For example, the so-called "Fair Elections" proposals, which tie public financing to a participating candidate's small donations, offer a way to support participating candidates, level the playing field, and encourage broadened political participation. One such proposal, the Fair Elections Now Act, lingered, and soon will die, in the 112th Congress.
Second, the Court has left untouched campaign contribution limits, so long as they are designed to attack political corruption or the appearance of political corruption. In fact, the Court recently underscored the continued availability of this option when it rejected an application to vacate the US Court of Appeals for the Ninth Circuit's stay of a district judge's ruling that Montana's campaign contribution limits violated the First Amendment. (This was a different case than the Montana case on expenditure limits.) While we do not have a final ruling in this case, it appears that tighter contribution limits remain a fully viable option for Congress and the states.
Finally, the Court left untouched disclosure and disclaimer requirements for contributors. In addition to upholding disclosure and disclaimer requirements in Citizens United, the Court underscored its view that disclosure requirements do not violate the First Amendment in another context. Thus, in 2010, in Doe #1 v. Reed, the Court rejected a First Amendment challenge to the disclosure of names on a petition for a controversial ballot initiative. In Citizens United, Doe and other cases, the Court has left open the option of stricter disclosure requirements for contributions to campaigns, corporations and independent organizations. As with the Fair Elections Now Act, one such proposal, the DISCLOSE 2012 Act, lingered, and soon will die, in the 112th Congress.
There may be other options, too. For example, Congress could clamp down on putatively independent organizations and enforce true independence. Congress and the states could also move to limit foreign spending funneled through corporations and independent organizations. But these and other options may be harder politically, practically, institutionally than the three simple and common-sense options above. The First Amendment allows creative public finance systems, tighter contribution limits, and greater disclosure, and we already have sound policies and proposals in these areas. Now we need to get serious about them.
Steven D. Schwinn is an associate professor of law at The John Marshall Law School in Chicago. He teaches and writes on constitutional law, comparative constitutional law, and human rights. He was previously assistant general counsel for the Peace Corps. Schwinn also maintains a website dedicated to constitutional law.
Suggested citation: Steven D. Schwinn, What's Left for Campaign Finance Reform?, JURIST - Forum, Dec. 11, 2012, http://jurist.org/forum/2012/12/steven-schwinn-campaign-finance.php.
This article was prepared for publication by David Mulock, an associate editor for JURIST's academic commentary service. Please direct any questions or comments to him at firstname.lastname@example.org