The Brennan Center for Justice submitted the following letter to members of the U.S. House of Representatives urging them to oppose a bill that would terminate the Election Assistance Commission and end the presidential public financing system.
November 30, 2011
The Brennan Center for Justice at NYU School of Law urges you to oppose H.R. 3463, a newly-proposed bill which would eliminate the U.S. Election Assistance Commission (the “EAC”) and the presidential public financing system. Terminating these institutions would jeopardize the integrity of our elections right before a major presidential election cycle. That would be a serious mistake. We should be working to strength our democracy, not weaken it.
The Brennan Center for Justice is a nonpartisan think thank and legal advocacy organization that focuses on issues of democracy and justice. Among other things, we seek to ensure fair and accurate voting procedures and systems and to promote policies that maximize citizen enfranchisement and participation in elections. We also strive to reduce the real and perceived influence of special interest money on democratic values, including by promoting the public financing of federal elections.
The EAC Should be Preserved and Expanded
There is nothing more vital to the health of our democracy than our citizens’ trust and confidence in our elections. The EAC is the only federal agency devoted to ensuring that our elections work. To this end, the agency provides a number of vital functions, including: (1) setting national standards for new voting systems through its certification program; (2) tracking and correcting problems with those systems through its quality monitoring program; (3) conducting research into election management and improvement; (4) collecting and disseminating data through National Voter Registration Act reporting and Election Day surveys; (5) providing a clearinghouse of information for local officials; (6) issuing compliance guidelines to help states uphold federally-protected voting rights; and (7) improving the accessibility of voting for the millions of Americans with disabilities. Over the past few years, the EAC has developed substantial expertise in these areas, particularly with regard to the certification and dissemination of information on voting systems.
The EAC was a bipartisan creation, conceived to fill an identifiable void. Past elections showed how the disparate application of registration requirements, provisional voting guidelines, and polling place procedures—as well as persistent and widespread equipment failures—can have a damaging effect on public perception of election integrity, especially when exacerbated by close and highly politicized contests. These problems highlight the need for a central body devoted to protecting the right to vote.
No other federal agency has the capacity or the experience to effectively handle the EAC’s important mandate. Certainly not the Federal Election Committee (the “FEC”), as proposed by H.R. 3463. As has been widely recognized, that agency is unable to fulfill its own duties—there is little hope that it could perform additional, and unrelated, election administration tasks. In fact, the FEC was previously tasked with many of the EAC’s current duties, and failed in critical areas. For instance, as the U.S. General Accounting Office reported, the FEC’s voting systems standards did not address a number of security concerns as well as “requirements for voting equipment usability, taking into account human capabilities and limitations, or the use and accessibility of the voting equipment by persons with disabilities.” Given the FEC’s current dysfunctions and its past failures in this area, tasking the FEC with the EAC’s duties would be a grave mistake.
Policy makers should instead focus their energy on reforming and strengthening the EAC. For instance, Congress should empower the EAC to require states to collect and share uniform election and voting data; expand the agency’s ability to gather comprehensive data with a specific focus on emerging technologies in election administration and effective list maintenance processes; increase the agency’s authority to mandate accessibility at polling places; and prioritize a national clearinghouse on voting machine technology. These reforms would strengthen the EAC, and would increase its cost-effectiveness and efficiency.
Election administration at the state level has become increasingly politicized. A wave of state voting law changes in the last year has increased barriers to voting nationwide and will likely make the challenge of administering elections even greater in 2012. At a time when Americans need to be reassured of the integrity of our electoral process, Congress would send a terrible message by dismantling the only federal agency devoted to improving the way our elections are run. We urge you to reject H.R. 3463 and instead take this opportunity to strengthen the EAC and our county’s election administration.
The Presidential Public Financing System Should be Preserved, but Repaired
H.R. 3463 also seeks to abolish the presidential public financing system, the most important reform to come out of the Watergate scandal. While legislative action is needed, it should be to repair, rather than to eradicate, the system.
The principles behind public financing of elections are as sound today as they were over 35 years ago. In its landmark Buckley v. Valeo opinion, the Supreme Court praised the presidential system, calling it “a congressional effort . . . to use public money to facilitate and enlarge public discussion and participation in the electoral process, goals vital to a self-governing people.” Years of experience has shown that public financing promotes a number of important goals, all key components of a healthy democracy.
First, public financing protects against corruption and its appearance. Since Watergate and the implementation of presidential public financing, there have been no corruption scandals involving a U.S. President. Citizens also have greater confidence in their government, knowing that presidential campaigns were not primarily funded by powerful wealthy interests.
Second, millions of individuals have been able to directly engage in the electoral process by contributing to the presidential financing fund through an income tax check-off. Participation is further encouraged by the structure of the primary financing model, where small campaign contributions are matched with public dollars, thereby supercharging the effect of regular citizens’ donations.
Finally, public financing facilitates more competitive elections by empowering challengers. Over the years, candidates as diverse as Ronald Reagan, Bill Clinton, Pat Buchanan, and Jesse Jackson have all accepted public funds to help finance their campaigns. In fact, public financing was vital to Reagan’s 1976 almost-successful attempt to challenge incumbent President Gerald Ford for the Republican nomination: an infusion of $2.5 million in public funds allowed Reagan to complete his campaign. Though Ford ultimately won by a hair, the electorate had the opportunity to fully evaluate both candidates.
While the presidential financing system has worked well for most of its existence, there is little doubt that it needs repair—the program is woefully underfunded and its current model is outdated. But, as the White House recently urged, “it is critical that the Nation’s Presidential election public financing system be fixed rather than dismantled.” This Committee should heed the President’s words and search for ways to modernize the presidential public financing system, not demolish it.
We strongly urge the Committee to refuse the invitation to weaken our democracy, and promptly reject H.R. 3463.
Deputy Director, Democracy Program
 U.S. Accountability Office, Report to Congressional Requesters, Status and Use of Federal Voting Equipment Standards 9 (2001), http://www.gao.gov/new.items/d0252.pdf.
 424 U.S. 1 (1976). The Court recently reaffirmed its support of public financing in Arizona Free Enterprise Club v. Bennett, saying “governments may engage in public financing of election campaigns and . . . doing so can further significant governmental interests such as the state interest in preventing corruption.” 131 S.Ct. 2806 (2011).
 Press Release, Executive Office of the President, Statement of Administration Policy (Jan. 25, 2011), http://www.whitehouse.gov/sites/default/files/omb/legislative/sap/112/saphr359r_20110125.pdf.