There are two important things in politics. The first is money, and I can’t remember what the second one is.
So said Mark Hanna, political kingmaker of the late 19th century. Twelve decades later, the old maxim seems true as ever. Today’s politics are awash in money, much of it untraceable. Campaign spending continues its relentless upward spiral. And fundraising burdens consume candidates and officeholders alike. All while campaign finance regulations fall, one-by-one, before the Supreme Court. Randall, Davis, Citizens United and McCutcheon (to name only a few) – the parade continues with no end in sight.
Yet hope remains.
For as long as there have been elections in the United States, we have debated how electoral campaigns should be financed. For as long as there have been campaigns to be financed, we have debated campaign finance reform. The issue is as old as the republic itself, and its progress – brisk at times, halting at others – is an enduring feature of our civic discourse.
Happily, that discourse continues with the NYU Law Review’s Online Symposium, which follows an extraordinary convening of legal scholars and practitioners hosted by the Brennan Center. Faced with ongoing judicial hostility toward campaign finance regulation, this gathering was challenged to reconsider the jurisprudential foundation upon which such regulation rests. Entitled Money in Politics 2030: Toward a New Jurisprudence, the name itself reflects the movement’s long march of progress, and its long road ahead.
Indeed, the history of campaign finance counsels patience. Gone are party-produced open ballots, patronage assessments and (for the most part) the spoils system. Before 1910, there was effectively zero disclosure of campaign finance in elections. And the Federal Election Commission celebrates 40 years this month. The integrity, transparency and credibility of our politics have improved greatly, albeit over an equally great timeframe.
The history of campaign finance also counsels creativity. The motive, means and opportunity for reform have varied widely. From the federal government’s post-Civil War expansion came civil service reform. From Teddy Roosevelt’s bully pulpit came the first federal contribution limits. And from Watergate came the modern era of campaign finance, with its panoply of disclosure requirements, contribution limits and public financing. How and when the next galvanizing moment will arise can only be guessed. But for those hoping to seize that opportunity, now is the time to prepare.
The Brennan’s Center’s convening and the NYU Law Review’s symposium showcase a range of creative and promising paths toward a new campaign finance jurisprudence. Within the familiar First Amendment framework, Yasmin Dawood proposes elevating ordinary citizens’ participatory rights above those of a wealthy few. Kate Andrias sees in McCutcheon an opportunity to reinvigorate ordinary political associations to compete with the extraordinary influence of big money. And Ned Foley looks beyond the Bill of Rights to empower individual voters through technology. Among the more innovative – and thought-provoking – approaches sound in contract law (holding corrupt agreements unenforceable), the internal revenue code (making small contributions tax-deductible) and the Guarantee Clause (deeming enthralled governments unrepublican). Many other intriguing possibilities are explored and developed on these pages.
These conversations make remarkable progress toward a new theory of campaign finance regulation. But to ensure success, this movement must ultimately transition from doctrinal theory to practical policy. Work continues at both ends of this intellectual endeavor. Undoubtedly more progress will be made. For so long as money remains the most important thing in politics, efforts to divorce the two will persist.
This entry is part of an ongoing blog series responding to an online symposium collaboration with the NYU Law Review, considering the future of money in politics in the post-Citizens United legal landscape.