Remarks delivered by Governor Janet Napolitano on April 10, 2008 at the Harvard Club of New York as part of the Brennan Center’s first ever Living Constitution lecture, a project sponsored by the former law clerks to Supreme Court Justice William J. Brennan.
Following the Governor’s remarks, New York Times editorial page editor Andrew Rosenthal moderated a public conversation.
Thank you for joining me this evening.
I want to thank the Brennan Center for the special honor of delivering this first “Living Constitution” lecture. I would also like to thank the group of Justice Brennan’s former clerks who made this possible. It’s always a challenge to be the first to do anything—especially when you’re in a room full of lawyers and legal scholars who are, naturally, looking for some kind of precedent.
I’ve been asked to discuss how my experiences have shaped my views of the many dynamic and evolving ideas within the Constitution. Well, let me tell you: I had a lot of potential material for this. My professional life has given me plenty of experiences with the day-to-day application of the Constitution. I’ve dealt with constitutional issues as a lawyer in private practice, as a U.S. Attorney, and as a two-term Governor. As Arizona’s Attorney General, I had the privilege of arguing a case before the U.S. Supreme Court. Now, the judgment in that case didn’t go our way. But we did get the votes of the two Arizona justices on the Court at the time, Justices O’Connor and Rehnquist—which makes me think we were on to something.
I’d like to speak tonight both as an attorney and as a person who has run for office. I want to address a constitutional issue that is both timely and dynamic: money in politics, and the public financing of elections. When you talk about a “Living Constitution,” it hardly gets more alive than this. It’s an issue that stands at the heart of the American people’s concern with our political system today.
It is also an issue on which the Constitution is largely silent. The Founders devised an ingenious system of government for the new nation. But, for better or for worse, the Constitution did not seem to anticipate at all what an American political system—as opposed to a government system—might look like. The rules for partisan politics, campaigns, and elections were left for the people to figure out later.
Reading the Constitution or the Federalist papers, it’s clear the Framers saw the Republic as subject to a few big threats: the tyranny of a strong central government; the tyranny of the majority; or the menace of a foreign enemy.
But if you ask Americans today what most threatens our democratic values, many will say that it is the special interests or the high-dollar donors—those who can play king- or queen-maker, can rent time at a candidate’s ear, or can buy their ticket into an expensive fundraiser.
People worry that their votes are less important than someone’s money. They hear, for instance, about pharmaceutical lobbies donating to campaigns, and then they see nothing getting done on health care. They observe powerful oil interests bankrolling candidates, and then see America make insufficient progress on energy.
I have seen the political process close up, and I can tell you that it’s more complicated than that. But I can also tell you that there are real drawbacks to the current interplay between money and politics. Perhaps more than overt corruption, the current system breeds cynicism and apathy—two enemies of participatory democracy. If Americans feel like they don’t have a voice, then all sorts of people—potential voters and potential candidates alike—don’t get involved because they don’t think they can matter. Important policy differences are obscured by the patina of campaign contributions. And candidates are forced into a never-ending cycle of fundraisers and chicken dinners, which, especially at the federal level, greatly favors incumbents over even the most worthy challengers.
You’re never going to get money completely out of politics—but there is a better way to do it.
The voters of Arizona helped move in the right direction by voting for an initiative known as “Clean Elections” ten years ago. Under Clean Elections, Arizona is one of 14 states that have a form of direct public financing for candidates in some elections—and is one of only two that has a comprehensive funding, fundraising and matching formula.
Let’s begin with some Clean Elections 101.
It is a voluntary system. Candidates who choose to “run clean” receive full public funding for their campaigns if they agree to adhere to the fundraising schemata and the spending limits of the act. To qualify for public funding, clean candidates must collect a certain number of $5 contributions along with the nominating petitions signatures required of all candidates.
The number of $5 contributions required of candidates varies with the office sought: 200 for a legislative position, 4,000 for a gubernatorial candidates. Once candidates collect enough $5 contributions to quality for funding, they turn this money over to the state’s Clean Elections Commission. After the qualifying period is over, clean candidates may not accept any more private donations. From then on out, the campaign is publicly funded.
In the rules I ran under in 2006, a “clean” gubernatorial candidate received about $450,000 in public financing for the primary and about $680,000 for the general election. If my opponent had opted not to participate in clean elections, as a clean candidate, I would have received a “match” for every dollar my opponent spent beyond the initial limits, up to three times the original cap. For governor, this cap was roughly $3.4 million, including both the primary and general election.
This matching formula creates an interesting dynamic. In my 2002 race, my opponent, former Congressman Matt Salmon, did not run clean and spent a lot of time raising money the traditional way. In 2002, you may recall, President Bush was quite popular, and Matt invited the President to Phoenix to do a fundraiser, which was quite successful.
At the next debate, I pulled Matt aside and thanked him, because under the Clean Elections match, his event raised $750,000 for my campaign. I am quite certain that I am the only Democratic Governor in the country for whom George Bush has held a fundraiser.
Where does the money for Clean Elections come from? None of it comes from the state’s General Fund. Instead, almost two thirds of Clean Election funding derives from surcharges on civil penalties and criminal fines like parking tickets, and about one third comes from voluntary check-offs on the state’s tax return.
Arizona is a place of tremendous growth and dynamism, which gives us big challenges, but even bigger opportunities. These elements of Arizona are on display in our Clean Elections law.
It is a good example of the tremendous success, frustrating shortcomings, and intense acrimony—the good, the bad, and the ugly—that come with any good frontier.
Let’s start tonight with the good. I strongly believe in the principle of public financing. It’s opened up the political process for thousands of voters and encouraged more people to get involved as candidates.
To look at the upside of public financing, you have to be realistic about what it can do. Public financing does not—and cannot—get the money completely out of campaigns. You need money to reach voters and inform them of where you stand. Try doing that on a shoestring.
Apart from this basic necessity, there’s this fact:
When it comes down to it, people who want to contribute lots of money to causes they care about will find some way to do it. Our Clean Elections system in Arizona, for instance, effectively limits individual contributions to campaigns to $5. But a Clean Elections candidate always runs the risk of an opponent who can simply self-fund at an unlimited level. Moreover, anyone can give a lot of money to political causes simply by donating to the state political party, an advocacy organization, or an independent expenditure committee. Everyone should be familiar with this phenomenon: In 2004, we saw it on a national level, when donors responded to new campaign finance laws by funding 527 groups, which are much less regulated than campaigns or political action committees.
I strongly believe that these types of organizations should be held to strict and more timely reporting requirements for income and expenditures, so that voters can see what’s going on. These would be positive steps, considering the fact that independent expenditure committees and 527s are going to be with us for a very long time.
Public financing will not rid politics of money. What public financing can do is make the role of money in politics more equitable and more transparent. Public financing helps erase the big mysteries about campaign funding—it takes away the question of who the big donors are, and requires clear reporting of expenditures and incomes. It also levels the field for candidates in a way that breathes life into grassroots democracy.
Clean Elections has led to a different type of campaign: As a candidate, you focus on meeting voters, instead of dialing for dollars.
I ran for Attorney General in 1998, before the Clean Elections system was passed. I’ve successfully run for Governor twice—in 2002 and 2006—as a Clean Elections candidate, choosing a clean campaign over a traditionally financed run. I can tell you: The system makes a world of difference.
In my Attorney General campaign, I spent a lot of time talking to donors just so I could have the resources to get my name out there. Running for Governor, I spent a lot less time doing that, and a lot more time talking to voters. In 2006, I collected 10,000 of the $5 contributions I needed to qualify for public funds. Compare that to the fewer than 3,000 donors I had while running for Attorney General without public financing.
Talk about opening the process up to more people. It gives voters a sense of ownership in the campaign—and they know their portion isn’t bigger or smaller than anyone else’s.
In this way, people giving their $5 have a lot in common with the everyday people who’ve formed the base of recent presidential campaigns built on small donors—such as Barack Obama’s campaign. Everyone can play, and Obama’s supporters know that their support lets the candidate bypass the influences that make many people cynical about politics. People can take ownership in the campaign and know their voices matter.
But you shouldn’t have the benefit from a once-in-a-generation presidential candidate armed with a world-class Internet fundraising operation to foster this kind of democratic participation. Public financing allows a similar sense of citizen ownership—the feeling that everyone can play—across all levels of campaigning, even without the public limelight surrounding Obama.
As a candidate, I vastly prefer the Clean Elections model. I get to spend a lot more time talking to everyday Arizonans about the issues facing them during “$5 parties,” which are common in clean campaigns. These events range from neighborhood dessert parties held in someone’s living room to a hike put together by grassroots supporters and led by the candidate. To me, this is what campaigns are really about—bringing together the people you want to represent, talking about important issues, and rallying behind common cause.
Public financing is also a good way to rein in expensive contests. In Arizona, Clean Elections has kept the cost of running way down. Candidates’ ideas aren’t inhibited by the obstacles of a big-money campaign, and instead compete on level ground.
Just look at the numbers. My 2006 campaign received $1.3 million in public funds, and my opponent got about the same amount. So, together, we spent about two and a half million dollars in that Governors’ race. Now look at another statewide contest in Arizona that wasn’t eligible for public financing—the race for U.S. Senate. Combined, the two candidates spent nearly $30 million. Same year, same voters—but Clean Elections cut the cost of running by more than 90 percent. When you make it cheaper to run, you democratize the process. This is also true of what kind of people end up running with public financing in place.
Clean Elections has opened the doors for many more people to run for office in Arizona, because you don’t have to worry about a money advantage. We’ve seen a 35 percent increase in the number of candidates running for Clean Elections-eligible offices from 1998 to 2006. Clean Elections, combined with term limits, has brought us a 140 percent increase in the number of contested state Senate races. Only 10 of our 30 state Senate districts were contested in 1998—24 of them were in 2006. This kind of competition is a sign of a robust democracy.
And better yet, Clean Elections candidates are winning. Forty-seven percent of all state and legislative offices are now held by candidates who ran clean, including 9 of 11 statewide office. In 2006, 38 of the 90 legislators elected were Clean Elections candidates—including nearly half the House of Representatives.
And clean candidates come from both major parties. Of the 47 clean candidates elected in 2006, 21 were Republicans and 26 were Democrats. In 2004, it was 28 Republicans and 18 Democrats. So public financing is far from a Democratic Party ploy: It’s a boon for all sorts of candidates.
So we can see all the great benefits of the Clean Elections system, and how they enhance some of the living, evolving democratic ideals that go back to the founding of our country. But there’s another side to this system—some problems that we can call “the bad.”
Public financing in Arizona is relatively new, which means there are real glitches that still have to be figured out.
First, let’s talk about the amount candidates get to run. Through the base amount given to Clean Elections candidates, as well as through matching funds generated by independent expenditures made against me, I received $1.3 million in 2006. That’s not a whole lot—but in comparison, candidates for other statewide offices received a pittance. Candidates for Attorney General and Secretary of State received only about a quarter-million dollars to reach the same number of voters. Candidates for other statewide offices like Treasurer and Superintendent of Public Instruction received even less.
This problem was even worse in state legislative races. Clean legislative candidates do win, but many are hampered by the paltry amount the Clean Elections system gives to them—in 2006, about $29,000 for districts that have, on average, about 100,000 voters. I signed a bill last year that raised these limits by marginal amounts, but the numbers are still far too low.
One benefit of Clean Elections is keeping down the cost of running—but you have to make some concessions to reality and provide enough money through public financing to actually reach voters. And if you keep the maximum donation very low, you also accelerate that flow of money to the other organizations, which I spoke about earlier—a phenomenon that’s unavoidable, but should be controlled for the sake of transparency.
There’s also a cumbersome bureaucracy that faces Clean Elections candidates. Especially for first-time candidates, this can make running for office frustrating and confusing.
The fundamental problem with our Clean Elections law is that it was written by people who had never run a campaign before. This issue is compounded by the fact that anybody can file a complaint against a campaign. This overbroad idea of standing leads to some frivolous charges, meant to score political points and eat up an opposing candidate’s time.
And once your complaint is heard, judgment can be a crapshoot. The Clean Elections Commission is new, and doesn’t have much precedent to go on—so its rulings can arbitrary.
And too often, its decisions are split according to the partisan ties of the commission members.
For a candidate, the consequences are potentially grave. If you spend money outside the law’s limits, the Commission can fine the candidate—not the campaign, the candidate —up to 10 times the amount of the alleged infraction. In one case, the Clean Elections Commission removed a state legislator from office due to some serious breaches in the campaign that got him elected to his seat. I don’t mean to say those penalties are never appropriate. But combining potentially stiff sanctions with unpredictable decision making does not make for confidence in the system.
Worse yet, the law’s requirements don’t match up with how campaigns—or, for that matter, businesses—actually function.
You can get caught up in a deep and inescapable Clean Elections bureaucracy for some pretty silly reasons.
Here’s an example from my last campaign. Early in the running, we launched a web site and signed a contract to pay a monthly fee to our web site vendor. But our opponent filed a complaint alleging that we didn’t have sufficient funds on day one to pay the vendor’s full contract—even though the idea, common to campaigns and to business, was to pay over time.
The complaint was ultimately dismissed, but only after a six-month audit that tied up campaign staff and resources, and which generated headlines—exactly what my opponent wanted.
This is not to complain about the ultimate result—after all, I prevailed on the complaint, and I won the election.
But in a different situation, this could have made a big difference on the outcome of a campaign. The Commission doesn’t provide a perfect avenue for recourse—it can make decisions on instinct, rather than precedent; it can act too slowly; and it can apply its force unevenly. You can see flaws in the Clean Elections system that dampen the many benefits I spoke about earlier. After those stellar upsides I pointed to, you may wonder why not all Arizona candidates were running clean. Well, flaws like these are a big reason.
So we have that balance between the good and the bad. I believe that balance weighs toward the good. Now if I can discuss the acrimony and the litigation surrounding public financing—a.k.a., the “ugly”—and also, what we may be able to do to get past it.
We’ve seen multiple legal challenges to Arizona’s system, many of them based in fundamental constitutional questions. The Brennan Center is a veteran of these cases, and has dedicated a truly admirable amount of energy to support public financing in Arizona. I want to take this moment to recognize all the important work that the Brennan Center has done to preserve this system.
The challenges, faced by the Brennan Center and others, often strike at the core of important Constitutional questions, and attempt to pit campaign finance reform against free speech. One of the basic questions that always arises when you limit campaign contributions is a familiar one that we recognize from Buckley v. Valeo: What about a person’s right to express him or herself by donating a fortune to a candidate?
My perception of what our Constitutional principles mean today has changed with my experience as a candidate. Anyone who thinks that the marketplace of ideas is hurt by public financing should just take a look at how many people get involved under a public financing system in Arizona. In my state, the political discourse is more lively and robust because of public financing. In a system that values everybody’s voice, you get many different types of candidates putting their ideas before voters, and a lot of people expressing themselves at a grassroots level.
Ugly legal battles are part and parcel of any new, pioneering system. But Clean Elections is not perfect, and has some ugliness that I think we can act to expunge.
So, I’d like to close with a call to action aimed at maximizing the good, minimizing the bad, and getting around the ugly:
In public financing, Arizona has done its job as a laboratory of democracy. We’ve seen enough positive results to broaden the experiment. In my state, you have a real-life public financing system that has changed the landscape of politics.
My suggestion to the students and scholars here today is: Use the Arizona example to create a model code for public financing, which could be used by other states and the federal government Like I said earlier, Americans are worried about money in politics. Yet too few states have public financing, and presidential candidates are stepping away from using public money in their elections.
In our Arizona test case, you can see what has worked and what hasn’t, and you can move forward from there. When discussing a “Living Constitution,” it can be easy to talk in just terms of big principles. But particulars matter. The details are often at the heart of putting those big ideas to work—and this is very true in public financing.
If we can work through these particulars, we can give candidates a way to run for office that’s equitable and transparent. Greater use of public financing can give citizens a greater voice, and greater confidence, in our democratic system. I urge you to go forward, take a realistic approach to the problem of money in politics, and to contribute in this meaningful way to our nation’s evolving campaign finance laws—and to do so in real time.
Aim to have a model code for states to emulate before the election of 2012—the next presidential election and the first general election after the next census and reapportionment.
If you do this, and if states and the federal government adopt your recommendations, you will have contributed in a meaningful way to the electoral framework underlying our democracy. And that, my friends is a legacy that Brennan Center could be very proud of.