Why we Need Public Financing of Elections.
At the outset, I need to mention that without attending a speech by Zephyr Teachout, I would not have realized just to what extent the corrupting influence money in politics has become. She does a fantastic job of succinctly explaining the problem of poorly regulated money in politics (1). Political campaign financing in New York State and across the United States has become a disaster. Our campaign finance system in New York State allows donations to political campaigns, both in primaries and general elections, in the tens of thousands of dollars (2).
I’m a trained historian. I graduated from Erie Community College and Buffalo State College. In both institutions, I was taught to read history critically and present it in a manner accessible to the lay reader. We need a thorough account of the history electoral politics and the financing of elections in order to solve the problem we face. My goal here is deal with the financing aspect as well as I can in a few thousand words. Im going to present a fairly representative history of the attempts to regulate the role of money in US politics and briefly explain why it didn’t work at the end.
The first real campaign for president, as we understand it, was in 1828. The wealthy traditionally ran for office and self-financed their campaigns. They believe it was “unseemly” to solicit money to run political campaigns. In the 1790’s, asking for campaign contributions was unnecessary – only 6 percent of the public met the qualifications of voting rights at the time: being a white male who was at least 21 years old and owned land. By 1812, six states in the west expanded voting rights to whites who didn’t own land (8). The expansion of voting rights to those who had no property set the stage for the 1828 election.
In 1828, Andrew Jackson ran for president and he actually campaigned for the office:
Jackson had earned a devoted following in Tennessee, having been a prosecutor, judge, congressman, senator, and general in the War of 1812. After losing to John Quincy Adams in the confused, 4-candidate 1824 presidential election, Jackson ran again four years later, enlisting local support like no candidate ever had. His staff maintained a whopping two campaign offices, and his powerful political friends distributed pro-Jackson pamphlets. Jackson still did not seek financial support on his own behalf — though he was an early practitioner of rewarding political loyalists with federal positions (4).
Following Andrew Jackson’s election, the era of paid political campaign managers began and voters were paid as much as 22 dollars for uncommitted votes (5). Money in politics gained in importance through the 1830s, 40’s and 50’s. Without digressing too much, the Liberty Party and Free Soil parties needed money as well as the Democrats and the Whigs. Their means of raising money was nothing like we encounter today. As we will see, the expansion of voting rights brought with it the expansion of money in the political process.
By 1864, Abraham Lincoln, one of the great Republican presidents of our time, said “a crisis [is] approaching” in a 21 November Letter… “As a result of the war, corporations have become enthroned, and an era of corruption in high places will follow.” He went on to describe how he believed the wealth of the country would be concentrated in the hands of the few to the point where the American republic was effectively destroyed (5). Lincoln’s concern was not directed primarily to the issue of big money in electoral politics, but his words certainly set the stage for what would come later.
It took 80 years following the signing of the US constitution to bring about our first campaign finance law. In 1867, the Congress passed a naval appropriations bill that banned military officers and federal employees from soliciting campaign contributions from Navy yard workers. Following the Naval appropriations bill, a guided era of campaign financing where pretty much anyone could finance campaigns as they wished followed. The later 19th century was the era of boss Tweed and Tammany Hall party machine politics. During this time the Republican party begin morphing into a party that strongly supported corporate interests. In 1883 Congress passed the Pendleton Act, which expanded the 1867 ban on political contributions from Navy yard workers to all government workers.
1896 was a real turning point for the role of money in politics. The 1896 election was the most expensive presidential race when the money raised is considered as a percentage of GDP. William McKinley won the presidency after outspending William Jennings Bryan by a factor of 11 to 1. McKinley spent 7 million dollars against Bryan who put up $650,000. It took 25 years for a candidate to surpass this spending limit.
President Theodore Roosevelt is a key player in the movement to implement the public funding of elections. Roosevelt believed “all contributions by corporations to any political committee or for any political purpose should be forbidden by law.” He also called for Public funding in 1905 while reiterating his demand for a ban on political contribution from corporations. The Tillman act of 1907 was an attempt on the part of Congress to ban bank and corporate giving. The ban was generally ignored because it lacked an enforcement mechanism (7).
The Federal Corrupt Practices Act (FPCA) of 1910 was the first comprehensive reform measure. Our first federal campaign spending disclosure requirements and spending limits were in this legislation. This was amended in 1925 to strengthen disclosure requirements and capped political spending. Like the Tillman Act, the Federal Corrupt Practices Act included no means to enforce the law or ensure compliance. The rise of Political Action Committees can be traced back the incentives created by the 1925 Amendments to the FCPA.
The FPCA remained basic campaign finance law until 1971. Between 1910 and 1971, the right to vote was expanded in the United States with the 17th Amendment (direct election of US Senators), the 19th Amendment (Women’s voting rights), the 1965 Voting Rights Act (bans racial discrimination in voting practices by the federal, state and local governments) the 26th Amendment (expansion of voting rights to those ages 18 – 21). With all these new voters came the desire on the part of those with money to influence their vote.
A series of measures were passed between the FPCA and the next attempt at large-scale reform in 1971. The Hatch Act was 1935 legislation that again banned federal contributions to federal candidates and it set a $5,000 per year individual contribution limit. The Smith-Connally Act of 1943 barred Union money from going directly to political candidates. The Congress of Industrial Workers (CIO) can be credited for establishing the first Political Action Committee (PAC) in response to Smith-Connally. The Taft-Hartley Act of 1947 had unenforced bans on donations to federal candidates from unions, interstate banks, and corporations (5).
The Federal Elections Campaign Act (FECA) of 1971 was an attempt on the part of Congress to consolidate all of its work from 1910 onward. FECA required full and quarterly disclosures, the income-tax checkoff that solicits public money to partially fund elections was implemented, again limited contributions and capped spending, and permitted Corporations and Unions to form PACS. Amendments to this legislation came in 1974, 1976 and 1979. The amendments dealt with establishing the Federal Elections Commission (FEC) and dealing with the fallout of the Supreme Court’s ruling in Buckley V. Valeo. They also addressed the issue of donating to political parties, among other matters.
Buckley v. Valeo is a landmark case for campaign finance law that could be the subject of a hefty scholarly text all on its own. The holding (ruling) in the case upheld limits on campaign contributions and affirmed the idea that money spent to influence elections is constitutionally-protected speech. Spending limits by candidates were struck down along with independent expenditures (money from groups not directly affiliated with a candidate or party) to political candidates and parties. A major aspect of this ruling is that the Supreme Court upheld the power of the government to fund political campaigns, but could not require candidates to forego privately-raised money. Even more significant, the government could set conditions on those who voluntarily accepted public campaign financing (9).
After Buckley, any meaningful campaign finance reform was blocked for nearly three decades. Among the proposals blocked were (5):
– A 1986 proposal for strict control of campaign fundraising
– An attempt in 1988 to override Buckley v. Valeo with a constitutional amendment
– A 1990 attempt to resolve voluntary PAC spending legislation in conference between the US House and the Senate
– A 1992 proposal to override a presidential veto of partial-public financing for Congressional elections and a ban on soft money in presidential election campaigns
– An attempt 1994 to get partial funding of congressional elections and spending limits on campaigns past Republican opposition
– A 1997 proposal by Senators John McCain and Russ Feingold to limit soft money in campaigns and regulate political advertising on television.
– Four bills in 1999 that failed to reach the floor of the house or the Senate for a full vote (5).
In the time these failed attempts to reform the system were proposed, general election spending on campaigns increased from 192 Million dollars to over 650 Million dollars.
In 2002, McCain-Feingold was passed by both houses and signed by President George W Bush. The legislation implemented the soft money ban and a ban on corporate or union spending for television ads. The TV ban was justified by defining TV political ads as “electioneering communications.” The new law raised individual contribution limits to Candidates from $1,000 to $2,000 dollars. Contributions to party committees were raised from $20,000 to $25,000 (10). The increased limits arguably helped challengers who were fighting to unseat incumbents while the soft money ban on TV advertisement arguably exonerated federal lawmakers from public scrutiny on their voting record. As much as the legislation intended to reform the campaign finance system, McCain-Feingold put a band-aid on a massive wound.
McCain-Feingold came with unintended consequences as well. The law was challenged in the Supreme Court, where the essential elements of the law were upheld. The Court upheld the soft money ban and the restriction on political ads in 2003. In 2006, the Supreme Court ruling in the case Right to Life v. FCC opened up exemptions to “electioneering communications.” The exemptions opened were so broad that most any issues ad funded by unions or corporations was again allowed on TV so long as they had reasonable relevance to legislative issues. Also in 2006, the Supreme Court struck down a Vermont law that implemented limits on campaign contributions to politicians. The Court did so on 1st Amendment grounds, which were a key issue behind Buckley V. Valeo in 1976. A 2007 ruling rolled back the limits on soft money TV ads even further.
In 2012, Citizens United V. FCC overturned the restrictions on Corporate and Union money in TV ads. It also overturned limits on indirect campaign spending by corporations, not-for-profits and unions. Its important to note that direct contributions from corporations and Unions are still illegal following Citizens United v. FCC. The modern super PAC was born of this ruling, becoming the vehicle by which corporations and unions can pour unlimited money into political campaigns. In theory, super PACs are not supposed to coordinate with candidates. In practice, a candidate can assess the field of donors and use their money strategically while depending on the super PACs to destroy their opposition.
In itself, Citizens United v. FCC is not the such the “disastrous” decision as Presidential candidate Bernie Sanders would lead us to believe, nor does it, as President Obama has said strike at our democracy itself (11). The real danger that came with Citizens United was the signal the court sent to those looking to overturn a century of legislation intended to limit and restrict the most egregious uses of money in the political sphere. In 2014, McCutcheon v. FCC effectively overturned aggregate contribution limits to political campaigns. The ban was overturned on 1st Amendment grounds (12). McCutcheon, in my opinion, did more actual damage than Citizen United did to our representative democracy. In practice, McCutcheon would not have happened had Citizens United been decided justly.
This summary gives a pretty good picture of the history of campaign finance. Now, lets talk about the problem at hand and the situation we’re in: limits on campaign contributions are being rolled back and both major political parties and special interests are benefiting from a system where incomprehensible amounts of money are spent annual to support and oppose candidates. The 1st Amendment has been interpreted in a way to assert that money is speech. Candidates for office and elected officials spend more time raising money and securing new sources of revenue for their campaigns than they do legislating or working on behalf of their constituents. Any measures we have put forward have either been ignored, circumvented by new forms of contributions and fund raising, weakened or Amended by the legislature, or overturned by the Supreme Court.
The general public is increasingly being left out of the democratic process because of all these factors. I agree with former President Jimmy Carter when he said unlimited money in politics
“violates the essence of what made America a great country in its political system. Now, it’s just an oligarchy, with unlimited political bribery being the essence of getting the nominations for president or to elect the president. And the same thing applies to governors and U.S. Senators and congress members. So now we’ve just seen a complete subversion of our political system as a payoff to major contributors, who want and expect and sometimes get favors for themselves after the election’s over (13).”
We no longer have a democracy in the sense our parents and some of our grandparents remember and participated in. The role of big money in politics has been a huge contributor to the lack of responsiveness of our lawmakers. That lack of responsiveness is a cause of both our increasing political apathy and political polarization. We are heading down a path that few of us want to travel – we’re going to a place where one will have to sell their soul or disregard the needs and will of their communities in order to attain and hold public office.
I believe the reason all our prior attempts to limit the role of money in politics failed because we repeatedly told donors what they weren’t allowed to do without at the same time giving them a blueprint for what they can do. The structure of our campaign finance laws limited abuses, they did not affirm a system that encourage democratic participation and a limited role of money in the political process. Had Barack Obama and Mitt Romney both accepted public funding in the 2012 general election effort, the total spent would have been around 92 million dollars. Instead, the 2012 Presidential campaign spending exceeded a billion dollars. As a country, we spent a billion fucking dollars on a presidential election. That should be a source of national shame.
We need public funding of elections to remedy the disastrous campaign finance system at the federal level. The Fair Elections Now Act is in the congress and sponsored by Senator Bernie Sanders. That’s a good start to solve the problem at hand. What we need first is state experimentation to show the feds how it can be done. New York State should lead the way in the public funding of elections. New York is well-situated to lead the way on this issue. New York City has already implemented a program that can be improved and extended to all of New York (14). From there, we can have other states pass public funding of elections.
In a follow up to this piece, I will go into more detail on exactly how we can implement public funding of elections and what the system will look like. We have a series of real problems in front of us: healthcare and education costs are out out of control, making those public services inaccessible for too many, wages and benefits are growing too slowly relative to worker productivity, our trade polices are causing real harm to our manufacturing sector, the criminal justice system is in need of a massive overhaul, we have no serious energy policy to deal with the end of oil and climate change, workers have less and less control over their working lives – being forced into part time work, work not compatible with their education, work that requires long hours or excessive “on call” status, and a financial system that is no longer serving the needs of working people or small businesses. We can not fix any of these problems in a major way unless we work on the role of money in politics.
Call your elected officials and know where they stand on public funding of elections.