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Tonight, Netroots Nation is hosting its 5th regional salon featuring Professor Lawrence Lessig. On tap, a discussion of his latest project, Change Congress, a non-partisan reform initiative working to fight the influence of money in politics. A live stream will be broadcast (streamed) here, and anyone can submit questions via twitter. The event begins at 7:15pm PST.
His Netroots Nation keynote is posted on the right.
In these voluntary public financing systems, candidates who choose to participate collect a certain amount of small contributions from constituents to qualify for a public grant. Once qualified, candidates agree to abide by strict expenditure limits and forego all private contributions. Public funding programs are currently available for legislative and executive candidates in Arizona, Maine and Connecticut, for judicial candidates in North Carolina, and for municipal candidates in several cities.
Given the recent slew of politicians being caught and investigated for accepting inappropriate donations and favors from special-interests, it is no surprise that the presidential candidates' fundraising strategies are getting a closer look. Large donations—and the motives behind them—are a murky issue, though hardly a partisan one; for every billionaire hedge-fund manager who raises more than $100,000 for Sen. Obama, there is an oil-trading company owner who bundles over $50,000 worth of contributions for Sen. McCain.
With bundled donations, special-interests can sidestep the contribution limits in campaign finance laws by allowing one individual to collect money from a variety of sources, thereby "bundling" the small donations into one large sum and delivering it to a candidate. It is no surprise that the collector in this scenario (or what the New York Times in an important editorial today aptly called the "hunter gatherer") can use this method of fundraising to their advantage, bringing in the usual suspects of special access and favors to the world of campaign finance. By controlling the contributions of many different donors, the bundler has more power (and a larger sum of money) than if he or she donated alone.
An edited version of this posting appeared as a guest post on the Anderson Cooper 360 blog June 20.
Barack Obama's decision to opt out of public funding for the general election is not a surprise. It was so well telegraphed, he should take out a patent.
The presidential public funding system worked well for three decades after it was enacted in the early 1970s. It leveled the playing field, boosted competition and reduced corruption. Think of it this way: in the first five elections under presidential public funding, a challenger beat an incumbent president three times. There's no congressional district in America with that much competition!
But the presidential system needs repair, for reasons among those prompting Obama to turn away the federal funds. Principally, candidates simply don't get enough money to mount a fully strong race in a modern election. The amount, when it was set, was about two thirds of the amount spent by the McGovern campaign of 1972—in other words, two thirds of the least successful presidential campaign in modern history!The real question is what will Barack Obama—or John McCain—do to reform the system when one of them takes office?
As Bert Brandenburg noted earlier this week, the Fourth Circuit delivered some good news for public financing advocates last Thursday by unanimously upholding North Carolina's system of public funding for judicial campaigns. This is a major victory for citizens concerned about fair and impartial courts.
The North Carolina decision is one of multiple recent developments on the public financing front. On the same day that the Fourth Circuit issued its decision, plaintiffs in Arizona filed an amended complaint against the matching funds provisions of that state's public funding program for statewide and legislative races. The case is back in the District Court after going up to the Ninth Circuit and then getting remanded.
Finally, in late March, a federal district court judge dismissed the core challenges to Connecticut's public financing law, ruling that the matching funds provided by that system do not violate the free speech rights of non-participating opponents and independent spenders.
Read the rest of this post here.
Cross-posted from The Nation web site.
The US Supreme Court heard oral arguments Tuesday in a campaign finance case, Davis v. FEC. This Court has had a rather ominous track record on campaign finance reform since the appointment of Chief Justice John G. Roberts and Justice Samuel Alito, and the Court's reactions to the argument do not bode well for those who care about limits on the role of money in politics.
The lawsuit concerns an obscure area of a major federal law enacted in 2003, the Bipartisan Campaign Reform Act (BCRA). But given the Court's considerable hostility to rules on campaign finance, demonstrated by two recent, closely decided decisions on contribution limits in Vermont and issue advertising in campaigns, the argument was yet another important sign of where the Court is headed on campaign finance matters.
A two-time-losing federal "millionaire" Congressional candidate, New York businessman Jack Davis is challenging the so-called "Millionaire's Amendment" section of BCRA, which relaxes various contribution limits for opponents of candidates who intend to spend more than $350,000 of their own money on a campaign for federal office....
More information emerged yesterday about the scope and scale of the "small donor revolution." The Campaign Finance Institute released data on individual donations to presidential candidates—large and small—which suggests that despite the fanfare surrounding small donors, "the cumulative bottom line for all campaigns so far has shown only an incremental, though significant, change in the overall balance between small and large donations." In other words, if you take all presidential candidates from both parties into account, not just Clinton and Obama, this election has not dramatically tipped the scales towards small individual donations after all.
From January 2007 to March 2008, 34% of donated dollars came in amounts less than $200, versus 27% for the same period in 2003–4. It's a significant increase, to be sure, but perhaps not the "revolution" that many have suggested—and certainly not the "parallel public funding system" that Obama has described.
This is not to say that small donors are not an asset for campaigns. For example, a full 52% of McCain's individual donations come from $2300 contributions (the limit), whereas they make up only 8% of both Clinton's and Obama's totals. This means that a large chunk of McCain's donors have "maxed out," while the Dems can continue to return to their donors for more support. This allows donors to stay engaged throughout their chosen candidate's campaign. Says one Obama supporter quoted in the National Journal, "Every time my husband and I are going to go out to dinner, we figure the average cost is about $80, so we just donate it to Barack instead."
McCain, who is expected to accept public financing for his general election campaign, will have to depend on his supporters making donations directly to the RNC, which has a whopping individual contribution limit of $28,500.
CFI also provides comparisons to previous elections. It's interesting to note that in 2000, 40% of McCain's individual donations came from small donors, while in this campaign small donations account for only 23%.
We have a lot to learn still about what this data means as campaigns play out. Remember that CFI is counting donations, and not donors. And on Election Day, every vote counts the same, whether it is cast by a small donor or large.
Cross-posted from the ACS Blog
April 22, the Supreme Court will hear oral arguments in a case testing the constitutionality of the so-called "Millionaires' Amendment" of the Bipartisan Campaign Reform Act ("BCRA," also known as "McCain-Feingold"). The Millionaires' Amendment passed in 2002 as part of a reform package to update and improve the nation's campaign finance laws.
The Millionaires' Amendment, somewhat levels the playing field for opponents of self-financed candidates who plan to spend $350,000 or more of their own money on their campaign for federal office. Once a candidate for federal office spends more than $350,000 of personal funds on a campaign, their opponent will be allowed to raise private funds in amounts that are triple the normal limits—up to $6,900/person/election—and can coordinate additional expenditures with his or her political party, up to a cap. The Amendment also requires certain financial disclosures from both candidates so that the FEC can monitor when the cap has been reached. In all cases, the self-financed candidate can spend as much money as he or she desires.
The law was challenged by Jack Davis, of New York, who alerted the FEC that he intended to spend $1 million dollars of his own money in his 2006 run for Congress. In the case, he argues that it is unconstitutional under First and Fifth Amendments, and claims that the additional benefits for his opponents chilled his own speech.
Mr. Davis lost on all counts in the lower court, which found that the Millionaires' Amendment did not burden his speech since it "places no restrictions on a candidate's ability to spend unlimited amounts of his personal wealth to communicate his message to voters, nor does it reduce the amount of money he is able to raise from contributors."
Instead, the court
held, the statute merely "provides a benefit to his opponent, thereby
correcting a potential imbalance in resources available to each candidate." Thus, the statute "preserve[s] core First
Amendment values by protecting the [opposing] candidate's ability to enhance
his participation in the political marketplace." The court also rejected Mr. Davis's equal
protection argument, because he had failed to show that Section 319 treats
similarly situated persons differently. It
is this opinion that Davis
seeks to overturn in the Supreme Court. The Brennan
Center for Justice submitted
an amicus brief in support of the FEC's
position.
The Davis case has its roots in the seminal case of Buckley v. Valeo, which (in)famously stands for the proposition that money is speech. What Buckley actually says is,
A restriction on the amount of money a person or group can spend on political communication during a campaign necessarily reduces the quantity of expression by restricting the number of issues discussed, the depth of their exploration, and the size of the audience reached. This is because virtually every means of communicating ideas in today's mass society requires the expenditure of money.
242 U.S. 1, 19 (1976). Buckley stuck an uneven balance that we have been living with ever since. It is constitutional to regulate political contributions but it is unconstitutional to regulate expenditures, including expenditures by a wealthy candidate on his own candidacy. Despite the fact that most self-financed candidates end up losing their elections for lack of a strong base of support among voters, post-Buckley, self-financed candidates, who can make a huge media buy with a single check, have often had a demonstrable funding advantage over other candidates, who must gather hundreds of small contributions before making a similar advertising purchase. As races for Congress have grown more expensive over time, parties have increasingly turned to candidates who can afford to self-finance to run for election. This trend could discourage candidates of lesser means from running for office. The Millionaires' Amendment was a response by Congress to this Buckley-inspired doctrinal inequity.
This case will be a key test of how hostile the Roberts Court has actually become to campaign finance regulation on the heels of 2006's Randall v. Sorrell (striking down $200-$400 contribution limits as being too low and invalidating expenditure limits in Vermont) and 2007's FEC v. Wisconsin Right to Life II (invalidating the application of BCRA's electioneering communications regulations to a political ad by a nonprofit. BCRA defines "electioneering communications" as television and radio communications that refer to a clearly identified candidate for federal office, that are publicly distributed within 60 days before a general election or 30 days before a primary election, and are targeted to the relevant electorate.)
Mr. Davis and his amici have argued that disclosure under the Millionaires' Amendment is particularly burdensome. This is the first chance since the 2003 decision in McConnell for the Court to opine on disclosure burdens, a subject which at that time garnered 8 supportive votes from Justices on the Court. Disclosure is widely viewed as the least restrictive tool in the campaign finance toolbox.
This case is also an opportunity for the Court to clarify (1) whether the specific $350,000 "trigger" provision in the Millionaires' Amendment is permissible, and (2) whether generally mechanisms to equalize funding among candidates with different financial resources are allowable. While the endorsement of such a mechanism has been adopted by lower courts in the public financing context, the Davis case is the first time that the Supreme Court will entertain this type of argument when both candidates are using private funds.
If the Court would like to rid itself of this case on mootness grounds, it certainly has the opportunity, since the 2006 election is undoubtedly over. If the Court would like to avoid the merits it could also punt based on Mr. Davis's failure to establish an actual injury since although Mr. Davis spent significant sums of his own money in his 2006 race for Congress, his opponent did not utilize of any of the Millionaires' Amendment's benefits.
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