“Three Wrong Progressive Approaches (and One Right One) to Campaign Finance Reform”

I have posted this draft on SSRN (forthcoming in the Winter 2013 “Elections in America” symposium issue of the Harvard Law and Policy Review).  Here is the abstract:

These are tough times to be a progressive in support of campaign finance reform. Through a series of cases, most importantly Citizens United v. Federal Election Commission, the Supreme Court has taken key steps toward deregulating campaign finance law. Since Citizens United, outside spending in federal elections has increased markedly, such as a 245 percent increase in outside spending on presidential elections, a 512 percent increase in outside spending on House elections and a 1,438 percent increase in outside spending on Senate elections, raising dangers of corruption and increasing political inequality. The Court could well take further steps toward deregulation in its new term, when it considers the constitutionality of aggregate limits on campaign contributions. While Citizens United leaves ample constitutional space for the enactment of effective disclosure laws, disclosure is a poor substitute for more serious and effective campaign regulation including limits on outside spending and ample public funding. Even worse, Congress has not fixed holes in our disclosure laws exploited by clever campaign finance lawyers which not only increase the danger of corruption but also deprive the public of important information to make intelligent voting decisions. The prospect for legislative responses in the near term are bleak, when Democrats cannot get Republicans to sign on even to disclosure fixes. The Federal Election Commission has become mired in ideological struggle, with three Republican Commissioners marching lockstep to disable what remains of campaign finance enforcement. President Obama, who campaigned as a reformer, has done nothing significant to help the cause of reasonable campaign regulation, and in fact his own new 501(c)(4), Organizing for America, will push politics further toward deregulation.
The current reality is far from progressive ideal campaign finance regulation for the 21st century: strong protections for robust political debate, a free press, and multi-dimensional partisan competition; programs such as voucher-based public financing fostering the voice and power of all voters; a strong disclosure regime, deterring corruption and providing valuable information to voters; and sensible limits on contributions and spending to inhibit political corruption and promote political equality.
What are progressives to do to move from bleak reality closer to this ideal? In this short essay, I argue against three misguided approaches to reform: seek to amend the Constitution to overrule Citizens United; pay lip service to the cause of reform but take no concrete steps against the worst problems with the system; and throw in the towel, giving up the fight to limit money in politics. Each of these approaches likely will make things worse rather than promote the progressive ideal. Instead, I argue that progressives should seek to preserve and protect what remains of campaign finance law today, especially contribution limitations, public financing, and disclosure laws, and progressive thinkers and lawyers should lay the intellectual groundwork for effective campaign reform proposals and constitutional arguments to be presented to a future, more progressive Supreme Court majority.

Comments welcome!

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