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How to Empower Non-Wealthy Americans Without Going to Court

As Justice Kennedy’s retirement renews focus on how the Supreme Court has enabled unlimited special interest spending and endangered voting rights, law professor Abu El-Haj urges reformers to seek empowerment solutions that do not rely on the courts. Scholars should study relatively robust sites of civic engagement and legislative responsiveness to identify what works, she argues.

  • Tabatha Abu El-Haj
July 18, 2018

The news of Justice Kennedy’s retirement is the latest reminder that we need to marshal more resources to achieve political, not merely legal, solutions to our democratic dysfunction. A key resource is research: To advance a reform agenda that centers on empowering the majority of Americans in politics, including through institutional and legal reform, will require different kinds of data than those we currently possess.


Justice Kennedy was not a moderate about money in politics. In fact, he authored the majority decision in Citizens United v. FEC, which narrowly interpreted precedent to conclude that preventing quid pro quo corruption (effectively, outright bribery) could be the only court-accepted reason to regulate campaign finance. Still his retirement is a reminder that the Supreme Court likely will block efforts to regulate super PACs and other independent political spending for the foreseeable future, even if the Republicans lose their hold on Congress this fall.


The silver lining is that few experts believe that efforts to take money out of politics have ever been all that effective. In theory, legislation like the 2002 McCain-Feingold law that limits money in politics, seems like a good way to decrease the influence of donors. In practice, however, money has an uncanny ability to find its way into the political process. Devising legislation that effectively controls the flow of money from big donors into elections is remarkably difficult. And the history of campaign finance regulation has largely been one of plugging leaks.


Money is just the most visible of the many sources of our current democratic dysfunction. There are many other points of entry for good-governance reformers. Beyond the usual suspects — the state of our political parties, the near extinction of competitive elections, and low and unrepresentative voter turnout, especially during party primaries — one stands out: The demise of civic associations, from private-sector unionism to class-integrated, mass-membership associations, capable of mobilizing and representing the interests of ordinary Americans.


The electorate today is disorganized and uninformed in ways that significantly contribute to the outsized influence of moneyed elites. In fact, many political scientists attribute the solicitude of government officials for the preferences of wealthy citizens and donors results to their increasing organizational advantage as compared to the middle class.


Efforts to empower ordinary Americans in politics, thus, offer an alternative approach to combating the distorting influence of big money on politics — one that has already made a beachhead with efforts like Seattle’s new public campaign financing system, called the Democracy Voucher Program. Public voucher programs, like small donor-matching programs, are efforts to empower non-wealthy constituents by incentivizing candidates to turn to them for support and, in turn, seek to make it possible for individuals without a network of big donors to run for office.


But empowerment strategies need not stop at campaign finance. As a recent New York Times editorial, “Kennedy Is Gone. Now Vote,” reminded readers, in the 2014 midterms “only 36 percent of Americans cast ballots…Had more people showed up, the Senate may well have remained in Democratic control, Mitch McConnell would not be the majority leader and Judge Merrick Garland would now be Justice Garland.”


A reform agenda centered on political empowerment, sadly, is not as easy as simply increasing voter turnout and broadening the donor base. The path from political participation to policy responsiveness is not straightforward. Even putting aside the structural features of American democracy that stand in the way — the Senate, the Electoral College, and the fact that we elect officials in single-member districts in winner-take-all elections — electing one’s preferred candidate hardly guarantees the policy responsiveness that many Americans are craving.


Efforts to broaden the donor base and increase turnout on election days are a critical first step, but empowering ordinary Americans in politics will also require allocating resources to rejuvenating the kinds of civic associations that are the organizational basis of active and informed participation.


For participation to have any chance of producing responsiveness, voters need to be organized and informed and to remain so when the campaign lights go out. Civic associations — from unions and churches to veterans’ groups and women’s literary societies — used to do this work. But since the 1970s, these membership-based groups have radically declined in numbers. Meanwhile, the groups that have emerged in their place are not well positioned to promote broad, informed electoral participation. Based often in Washington, D.C., and largely financed by foundations, contemporary civic associations tend to lack a broad network of actively engaged citizens.


It is no wonder that reformers have sought easier paths, but now that those are no longer available, the heavy lifting must begin. The good news is that there is reason to believe in the virtuous circle of association, participation and democracy. A few years back, Robert J. Sampson published findings from his research with Douglas McAdam, on Chicago. The research found that civic participation is strongest in neighborhoods with the highest concentration of nonprofit organizations, other than Black churches. Moreover, as with most historical trends, there is significant geographic variability. There are still places — places like Durham, North Carolina and Lancaster, Pennsylvania — where civil society seems to be working.


The bad news is that our myopic focus on campaign finance reform as the solution to the outsized influence of moneyed interests in politics has led to a dearth of data on a range of issues relevant to developing an alternative reform agenda. There is just a lot we do not know, even about reforms that seek to encourage the share of money in politics coming from small donors.


Starting with our beachhead — public financing to encourage small donors: Does increasing the proportion of campaign funds that come from local constituents produce more policy responsiveness? The evidence that candidates using Seattle’s new program raised significantly more money from local residents as well as women, people of color, and lower income earners is certainly encouraging, notwithstanding the inequality that persists. But we still need to know whether those candidates govern differently. Will they be more responsive to the interests and preferences of the constituents who supported them? If they are, why? Do small donors get access to their elected officials just like big donors? Or is the causal path more indirect? Perhaps such public spending requires them to spend more time electioneering with constituents? On the other hand, we should be careful: It is equally possible that candidates that volunteer to participate in such programs are somehow distinct.


Similarly, while a review of the recent literature certainly supports the hypothesis that higher and more representative turnout in decisive elections would improve our politics, here too many unresolved questions remain. Few studies focus on the relationship between voter turnout and policy responsiveness in places where voter turnout is high. Given how expensive efforts to increase turnout are, it would be good to know whether we see more policy responsiveness in states and localities with consistently high-levels of turnout, such as, Minnesota, Wisconsin, and Maine, compared, for example, to those with consistently low-turnout, such as New York, Georgia and West Virginia. Once again, if the answer is yes, why? Are individual voters in these

states more informed about policy and thus more capable of holding their officials accountable? Or is the high turnout a product of other institutional characteristics — a history of progressivism, strong unions, a robust civil society — that enhance democratic responsiveness in their own right?


Finally, while many studies have looked at how a variety of election procedures — mail-in voting, same day registration, voter-identification requirements — influence turnout, few, have considered how other institutional features affect both elections and policy responsiveness. Even Sampson and McAdam, who concluded that the density of nonprofit organizations out-predicted both social ties and individual memberships in civic groups, did not think to ask whether the

resulting civic participation also led to increased policy responsiveness. Most of the research that has followed in their footsteps has looked to demonstrate how the density of civic organization leads to urban renewal — as if policy responsiveness and economic growth were synonymous, without considering if that is what a more representative cross-section of the local community seeks from government.


One approach to conceiving empirical studies that go beyond financing and participation would be to focus on the outliers — places where American democracy is looking good.  These spots are states and localities where voter turnout is high across elections, where ordinary Americans are better organized, and where legislatures are functioning to address the needs and preferences of their constituents. Researchers might start with jurisdictions where elected representatives have passed legislation supported by significant majorities — raising the minimum wage, independent redistricting, campaign finance reform, gun control — and ask what can we learn about how a state’s or locality’s civic landscape encourages responsiveness. Alternatively, researchers might start with jurisdictions that are known to have robust civil societies — cities like Lancaster, PA and Durham, NC — and ask whether the preferences of the non-wealthy majority (not just the business elite) are better accounted for by policy makers. Eventually, such research might get down to the granular level, asking how much the structure of those civic groups, not just their presence, matters.


Tabatha Abu El-Haj is Associate Professor of Law at Drexel University Thomas R. Kline School of Law, and a member of the Scholars Strategy Network.

Purchasing Power: The Conversation

This post is part of the special series designed to provide well-informed commentary, fresh questions, and new answers about the facts of money in politics. Dive in to 'Purchasing Power: The Conversation’ here. 

The views expressed by blog contributors are the authors’ own and not necessarily the views of the Brennan Center.