Poison Pill Amendments To Campaign Finance Reform: Hazards To The Health Of Democracy
Opponents of campaign finance reform are seeking to kill the Shays-Meehan bill (H.R. 417) by attaching poison pill amendments that no true supporter of democracy should swallow. The two amendments described below, for example, are calculated to reduce participation in the political process – by denying legal permanent residents the right to make federal campaign contributions and by forcing congressional candidates to raise at least 50 percent of their campaign funds from in-state sources. Those measures have been portrayed as efforts to give control of elections back to ordinary citizens, but the sugar-coating cannot disguise the amendments’ venomous effect: discrimination against and disempowerment of vulnerable and under-represented constituencies. The antidote lies in the hands of lawmakers on both sides of the aisle, who can restore public trust in government by opposing all poison pill amendments – and by speaking forcefully in favor of fair and inclusive government.
Discriminatory Poison Pill Amendment #1:
DENYING LEGAL PERMANENT RESIDENTS THE RIGHT TO MAKE FEDERAL CAMPAIGN CONTRIBUTIONS
Sponsors: Reps. Doug Bereuter (R.-Neb.) and Roger Wicker (R.-Miss.)
This amendment revises current law – which permits legal permanent residents of the United States to make campaign contributions – so that only citizens and U.S. nationals will have that right in federal elections. The amendment is being portrayed as an effort to prevent foreign individuals from making such contributions, but it really affects only legal permanent residents. Contributions from foreign nationals are already illegal.
This is not the first time that opponents of campaign finance reform have attempted to derail the Shays-Meehan bill by proposing amendments that would deprive legal permanent residents of the right to make campaign contributions. Last year, Rep. Bereuter defended a similar amendment introduced by Rep. Vito Fossella (R.-N.Y.) as a means to protect against “undue foreign influence in electing our government.” (144 Cong. Rec. H5471)
But the Federal Election Campaign Act (“FECA”) already protects against foreign influence on American elections. It is illegal under FECA for foreign nationals to make contributions in connection with the selection of candidates for political office. The prohibition applies to foreign governments; foreign political parties; corporations, partnerships, associations, or other groups organized under the laws of another country or maintaining their principal place of business there; and individuals living abroad who are not United States citizens. The contributions are illegal whether they are made directly, through another person, or in another person’s name. And it is illegal for a candidate to accept such contributions. In other words, even if Reps. Bereuter and Wicker were genuinely concerned about the funneling of money from “foreigners” (to quote Rep. Bereuter) into federal elections, there would be no need for this amendment.
Moreover, the amendment is not merely redundant; it is also grossly unfair and constitutionally questionable. It is unfair to the millions of legal permanent residents who make valuable contributions to their communities and to this country. Legal permanent residents are required to pay taxes just as U.S. citizens do. Legal permanent residents are also subject to the military draft, and thousands of them are veterans or active members of our armed forces. Some of them can even vote in certain local elections. Many of them are simply waiting until they can fulfill the requirements for full citizenship, and all of them have a personal stake in the governance of the country they have made their home.
And House Members should know better than to treat legal permanent residents of this country as corrupt “foreigners” who present a threat to the integrity of our elections. Indeed, invoking campaign finance abuses by a few people (including some U.S. citizens) who happen to have ethnically identifiable names to justify action against millions of legal permanent residents smacks of stereotyping and scapegoating of the very worst kind. Citizens who cynically seek to exploit loopholes in the campaign finance system are the real threat to our government, not legal permanent residents drawn here by the promise of American freedom and democracy.
Finally, it is telling that opponents of campaign finance reform, who piously invoke freedom of speech and association when defending soft money, have so little respect for the First Amendment when the rights of legal permanent residents are at stake. The expressive power of a political contribution, although symbolic and indirect, does not depend upon the contributor’s status as a citizen or a legal permanent resident. In fact, campaign contributions may represent an even more important avenue of political expression and association for legal permanent residents than for citizens, because such residents generally cannot vote or hold public office. Members of Congress who care about the First Amendment – including even those who oppose campaign finance reform on alleged First Amendment grounds – should therefore resist any effort to ban contributions from legal permanent residents.
Discriminatory Poison Pill Amendment #2:
REQUIRING 50 PERCENT OF CAMPAIGN FUNDS TO COME FROM IN-STATE SOURCES
Sponsors: Reps. E. Clay Shaw, Jr. (R.-Fla.), Ken Calvert (R.-Cal.), and Elton Gallegy (R.-Cal.)
The effect of this amendment is to limit the spending of candidates who do not have wealthy supporters in-state. The amendment is an improvement over last year’s – which would have required House members to raise half of their funds from within their own district – but it is still irrational, discriminatory, and constitutionally questionable. It is irrational because the amount of money candidates can raise from in-state sources does not necessarily correlate with the extent of their in-state support. To give a simplified example, a candidate with 10,000 in-state supporters who could afford only $10 contributions (for a total of $100,000 from within the state) could raise no more than $200,000 overall, whereas a candidate who could extract the maximum legal contribution of $2,000 from each of his only 100 in-state supporters could raise a total of $400,000; the candidate with 100 times the support would thus be left with half the campaign funds. Contrary to the sponsors’ suggestion, there is thus no reason to believe that the 50 percent requirement will give state residents more influence over their federal representatives, but it will certainly offer a great advantage to wealthy candidates or those with wealthy supporters in their state.
For that reason, this amendment is also discriminatory. Because people of color are disproportionately poor, the amendment will have a disproportionate impact on minority communities. Candidates from those communities will be restricted in their ability to reach across state lines to those who know them well – friends from college or military service, for example – and thus will be less able to compete with candidates who have wealthy in-state backers. The amendment will thus make it even harder than it already is for people without access to money to run for office. Friends of democracy should not be creating such barriers to participation in the political process.
Finally, the amendment may not be constitutional. One federal appellate court has already struck down a state law limiting out-of-district contributions as a violation of the First Amendment rights of contributors. The Alaska Supreme Court took a different view, because Alaska’s distinct history and geography, as well as testimony from two former Alaska governors, provided a substantial factual basis for concluding that out-of-state contributions carried a “potential for distortion.” But the proponents of this poison pill have offered no evidence that a large number of small out-of-state contributions carry the potential for disproportionate influence on federal elections. Without such evidence, the amendment serves only to limit electoral competition and to perpetuate under-representation of minority communities. Supporters of H.R. 417 should strenuously resist the 50 percent requirement.
Conclusion
Nothing in this analysis should be construed as an endorsement of private financing of political campaigns or as an argument for raising or lifting contribution limits. The First Amendment value of private donations, while real, cannot trump the far more compelling state interests served by contribution limits and voluntary public funding systems. The critiques presented here simply argue that, under the current system of private financing, the government should not discriminate against vulnerable or under-represented populations.