14 October 2012

What If Colorado Ballot Issue 65 Were Adopted?

Colorado Ballot Issue 65 directs Colorado's state and federal legislators to draft and advocate for a campaign finance constitutional amendment. While it would not be binding even if it was passed, at least some of Colorado's legislators would feel some obligation to at least try to comply with the voter's wishes if it did pass.

What kind of language could someone like me who is very concerned about protections for political speech as a core of our democracy live with? I gave it a shot and came up with the language below as a starting point for discussing the kind of language that might reasonably balance the right to free political speech with concerns about the undue influence of monied interests in American politics.


The core ideas in the draft, which is set forth verbatim at the bottom of this post, are mostly designed to fairly narrowly constitutionally overrule the notion of corporate personhood in the context of campaign contributions, an issue embodied in the controversial Citizens United case decided by the U.S. Supreme Court.

Sections 1 and 2 provide that a law may constitutionally insist that campaign contributions be traceable to specific, disclosed natural persons and may impose reasonable, uniform, per contributor limits on their contributions to any given political race.

Note that the draft amendment allows any natural person to make contributions in any U.S. political race, even if the person isn't personally allowed to vote in that particular political race or any political race. By implication, however, this language authorizes governments to prohibit of campaign contributions by corporations, unions, non-profits and governments, although it does protect the right of entities to act as intermediaries who bundle contributions from disclosed U.S. voters.

It does not apply prior to the point in time at which a candidate gains ballot access, and does not apply to political speech that does not advocate for particular candidates or pertains to ballot measures. The distinction between ballot measures and candidate races flows from the notion that ballot language can't be "bribed" or influenced by campaign contribution money after it is adopted and show favoritism, while candidates may. Also, the distinction between generally policy discussion and advocacy for ballot measures is muddier than the distinction between advocacy for political candidates.

Section 3 provides political opinion made at a disclosed person or entity's own expense in their own publications, or at no expense financed by a contributor, may not be regulated, even if that person is not otherwise entitled to vote in any election.

This key definitional distinction between contributions and one's own speech is a safe harbor for such traditional political speech forums such as newspaper opinion pages, op-ed columns and letters to the editor, and for church and entity newsletters, websites and blogs.

The existence of this exception largely turns the limitations on campaign finance into time, place and manner restrictions. The distinction between media speech and "corporate" political speech is inherently problematic. There is no obvious reason that Rupert Murdock's media empire should benefit from a safe harbor, while Ben and Jerry of ice cream fame should be highly restricted in the extent to which their corporation may have a political voice.

Section 4 provides that campaign finance law violations may not be used to change electoral results or deprive someone of their political rights.

Fines for campaign finance violations must be proportionate to the office and incarceration for a campaign finance violation must be short. Thus, they must be purely collateral matters whose enforcement can not effectively be used to suppress political dissent or add uncertainty to disputed elections.

A lurking issue here that is not addressed concerns issues related to selective enforcement by winners of elections. For example, a President or state Secretary of State who wins an election might vigorously enforce campaign finance laws after the election against violators who opposed members of his political party while ignoring violators who support members of his political party. Colorado's current Secretary of State, Scott Gessler, has been accused of precisely this kind of behavior. Yet, in general, illegal contributions to election losers who are most at risk of prosecutions for campaign finance violations, are categorically people who made contributions that won't have an ongoing detrimental impact on the political process, while illegal contributors to election winners who are categorically more likely to pose the very kinds of risks that campaign finance laws were designed to address are likely, on average, to be the subject of more lenient and less diligent enforcement efforts. 

The institutional arrangements which might mitigate this important risk are too intricate to include in an amendment to the U.S. Constitution.

Sections 5 and 6 address federalism issues.

Section 5 clarifies issues of subject matter and long arm jurisdiction of courts where campaign finance laws are enforced. Section 6 provides that campaign finance laws for elections to offices and ballot issues in a particular governmental entity may only be enacted by that governmental entity and are subject to any constitutional limits established by that governmental entity's constitution.

I don't expect that either of these sections are particularly controversial beyond the controversy over the substance of the limitations allowed. These provisions are common sense rules of the road that are helpful because there are a number of other alternative rules of the road that could also be fought over if an express statement weren't included.

Is this good policy?

Is it good to suppress anonymous political speech?

One aspect of this proposal, about which I am ambivalent, is that it effectively criminalizes a significant chunk of anonymous political speech. Yet, this kind of speech, in the form of documents like the Federalist Papers, that was pivotal in our country's founding and is also very important to the political arm of any revolutionary political movement.  One of the important features of the free political speech and democracy is to make democratic processes more attractive than extra-legal action and these proposals have the potential to bias political movements against buying into the democratic process.

This harm is mitigated by the fact that it applies only once the choice to proceed via the democratic process has been made by candidates and advocates of ballot measures and the candidates and proponents of the ideas behind the ballot measures have thus already escaped the most obvious routes by which they could be suppressed. A call for a revolution or new set of policies that wasn't on a ballot anywhere isn't governed by this amendment. Neither is an expression of opinion about specific pending legislation that voters do not have a direct say upon. Hence, it has no impact on grass roots lobbying of already elected officials.

Is it good to suppress overt corporate or union political contributions?

Another aspect of this proposal is that it deprives entities, which already lack a right to vote of their own, of even the possibility of a meaningful collective voice. Why shouldn't what the Federalist papers called "factions" and specifically contemplated would play an important role in American politics, have a voice in their capacity as "factions" rather than merely through members of that faction.

Is it so bad that a union or corporation be able to use its economic power to express its opinion on a candidate or ballot issue?

Often a disclosed union or corporate campaign contribution will have practical value to a voter by helping a voter to evaluate which corporations and unions believe that they will be helped or hurt by a candidate or ballot measure, something that can help both supporters of the corporate or union position and opponents of the corporate or union position.

For example, in school board elections, knowing the institutional affiliation of donors to school board candidates is often the most informative way to learn the policy leanings of candidates whose public statements are often vague or indistinguishable from other candidates.

When contributions are made by natural persons who are affiliated with a corporation or union, people who want to trace the source of the money have to do large numbers of mini-private investigations to connect the dots that would otherwise be obvious if direct corporate or union contributions were allowed. Breaking contributions down to natural persons can be effective at limiting the capacity of wealth to give someone excess political power, but it can actually undermine the disclosure aspect of campaign finance regulation.

Do contribution limitations make politics cleaner?

A core belief that drives a large share of all campaign finance regulation is the belief that campaign contributions can be used to effectively bribe candidates who eventually do get elected to take legislative action on their behalf, thereby distorting the political process. Most campaign finance reform advocates (e.g. Common Cause) see campaign contribution limitations as just one form of anti-corruption legislation. The trouble is that the way that campaign contributions influence the political process is considerably more complicated.

For one thing, more often than not, campaign contributors use their money to back candidates who have already adopted political positions that favor them before they even considered running for public office.

The conventional notion of a bribe involves the use of money to change how someone would act, but in the case of campaign finance, the purported recipient of the bribe is getting money to do what he or she would have done anyway in most cases.

Requirements that campaign contributors be "independent" of the candidate in some situations and not coordinate with the candidate aren't all that effective at addressing the fact that monied interests often prefer one candidate to another and can use their funds to advance their preference effectively without any interaction with the candidate at all. Indeed, they may be able to take actions that are more effective when the candidate can truthfully deny any involvement in the actions of their proxies and even complain about those proxy actions, than they could have been if the candidate that they favor could be held more directly responsible for their advertising conduct.

Campaign contributions also don't bribe voters.

Generally speaking, campaign contributions are not used to provide personal gain to any outcome determinative number of voters. They may be used to hire a few sign making companies and pay money to television stations and newspapers (in both cases, the same companies and media outlets often receive money from both sides of many races), and to hire campaign workers who may feel some loyalty to the person who paid them money for their services but often supported the candidate or issue before they were hired anyway.

Direct bribery of voters as an important political tool pretty much died with progressive era civil service, government procurement, and anti-machine politics election law reforms by the 1920s at the latest, except for a certain amount of pay to play politics by construction companies looking for road building bids and municipal bond industry officials. Indeed, campaign contributions are generally spent on mailings and political advertisements that annoy the voters they are targeted at, even when they are effective. When it comes to imparting personal economic gain to voters, campaign advertisements (which is where most of the money goes) are almost "anti-bribes" that low the personal utility of a voter.

The impact of campaign contributions is almost entirely dervived from the content of the speech it directs at voters. And, one of the core ideas of American political theory is that voters should be making decisions influenced only by political speech.

Keep in mind also, that a great many voters actually have less information about the candidates that they will be voting upon than would be optimal.

While a considerable amount of money is spent on political campaigns, a lot of the spending by candidates themselves goes towards name recognition advertising that more often than not even deliberately fails to disclose or downplays the candidate's political party affiliation.

Almost no private campaign contribution funds are devoted to the kind of comprehensive, even handed evaluation of candidates and ballot measures (especially below the top of the ticket) that would be most useful to voters - non-profits good government groups (like the League of Women Voters), government agencies (like the bodies that prepare the information packets that Colorado voters receive), unpaid or minimally paid bloggers, and the mass media continue to have a near monopoly on this kind of analysis.

People who dislike unlimited campaign contributions also tend to dislike "negative campaigning" and "attack ads", despite the fact that this kind of advertising tends to be the most effective in swaying voters. The sense that too much money is spent on political campaigns is driven to a considerable degree by the feeling that these kinds of ads have negative value because they can be misleading and because the undermine the civility of the political process.

There is, of course, no necessary connection between misleading campaign advertising and the amount of money spent on political advertising.

Campaign contribution limits also have institutional effects that are the opposite of those intended from an anti-bribery perspective. They force candidates for public office to spend money time raising money and make candidates beholden to more contributors. Since almost all contributors have more money than the vast majority of rank and file voters, widening the necessary base of contributors makes all candidates more beholden to the wishes of the class of people affluent enough to make some kind of political contribution relative to the wishes of people who can't make any political contributions, since a contributor whose political views are at odds with the vast majority of people affluent enough to contribute at all can't contribute enough to allow a candidate to ignore other members of that affluent class of individuals.  Put another way, campaign contribution limits favor the upper middle class to the detriment of rich progressives whose views are at odds with most of the rest of the upper class and upper middle class.

There are other ways that campaign contribution limits are problematic, not least among them being how very hard it is to prevent loopholes from swallowing the general rules restricting campaign contributions and spending in any meaningful way consistent with any kind of even minimal protection of First Amendment rights related to political speech.

For all those reasons, I do not believe that campaign finance regulation, in general, and campaign contribution limitations, in particular, do much good. Narrower efforts to limit the political influence of big corporations are even more futile.

But, lots of people, particularly liberals, have personal political world views that see a class of politicians controlled by corporate money and power as the root of most of the world's social ills, and if you believe this, crude campaign contribution limitations and a ban on corporate campaign contributions is the natural lynch pin of any plan to achieve progress on any other issue by political means. To those people, I would say that while this makes lots of superficial sense, it simply is not an effective tool to achieve that end and there are lots of process tools that would be much more effective (like finding ways to dramatically increase the share of eligible voters who actually vote through changes in the political process).

Draft Campaign Finance Amendment Language

Section 1: The Constitution of the United States of America, as amended, shall not prohibit Congress, State or an elected governing body of a federal territory, commonwealth or district, from passing laws requiring all contributions to another, that are used to advocate for or against, in the name of anyone other than the contributor, a candidate who has been authorized to appear on the ballot in for any elective office in a specific election be traceable by members of the public to one or more publicly disclosed natural persons, subject to such exceptions or exclusions as are provided by such a law. This amendment does not apply to political discussion that does not advocate for or against a candidate who has been authorized to appear on a ballot for a specific election for a specific office.

Section 2: A law permitted by Section 1 of this Amendment may set a limit, which is uniform for elected to the same legislative body or the same legislative office, on the maximum amount of contributions subject to such disclosure requirements that a natural person may make in a single election cycle for that office, in connection with a particular elective office, provided that this limitation may not be unreasonable small relative to amounts spent to advocate for or against candidates of that kind before the law was adopted, and provided that the amount is adjusted for inflation accruing after the law is adopted in each new election cycle. In the case of any candidate for the United States House of Representative, the United States Senate, or a ticket of candidates for President and Vice President (and any electors pledged to such candidates), an initial limit on contributions shall be not less than $5,000 per person per election cycle for that particular elective office.

Section 3: Neither Congress, nor any State shall make any law that prohibits or require disclosure from any person, or for profit, non-profit or cooperative entity with a substantial existence and purpose apart from political advertising and advocacy, in connection with the any publication in a publication controlled by that person or entity, of that person or entity's own opinions regarding any candidate for any office, for which that person or entity does not receive separate payment from any contributor, which are disclosed as that person's opinion or as the entity's own opinions or as the opinion of a disclosed editorial board of an entity. Likewise, neither Congress, nor any State shall make any law that prohibits or require disclosure from a person or entity whose opinions regarding any candidate for any office are published with no expense to the person or entity stating the opinion, if the publication of this opinion is not paid for by any contributor.

Section 4: No penalty for a violation of a law authorized by this amendment shall alter in any way the outcome of any election. No fine or monetary penalty or forfeiture for any particular violation of such a law shall not be in excess of (1) the actual cost including attorneys' fees in bringing the action, (2) three times the amount of any contribution made in excess of the limits established by law, and (3) the full amount of any contribution which would have been lawful had it been disclosed. No one may be incarcerated prior to trial solely for a violation of such a law and any criminal penalty for a violation of such a law shall be more serious than a misdemeanor, shall not cause a forfeiture of the political rights of the person so convicted before or after conviction, and shall not be punishable by more than six months of incarceration.

Section 5: The federal courts of the United States of America with jurisdiction over all or part of the geographic area in which resident voters are entitled to vote on the candidate with respect to which a contribution is made, shall have jurisdiction over any action to enforce any such law against anyone, anywhere in the world, provided however that the courts of a State shall have exclusive jurisdiction over any action by a State or subdivision of a State or any natural person or any entity to enforce any such law enacted in that State against a resident of that State.

Section 6: This amendment does not pre-empt provisions in state or local or territorial or commonwealth or district organic documents or constitutions prohibiting such laws. No State, or elected governing body of a federal territory, commonwealth or district shall pass any law requiring the disclosure or, of limiting, contributions to advocate for or against a candidate for the United States House of Representative, the United States Senate, or a ticket of candidates for President and Vice President (and any electors pledged to such candidates), regulating in any way contributions to advocate for or against a candidates for elected office in any jurisdiction other than its own.

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