Thursday, February 16, 2012

A new campaign finance system based on when contributors give

Here is my latest piece, which appears in the Los Angeles Daily Journal

This month marks the two-year anniversary of the U.S. Supreme Court’s much maligned decision in Citizens United v. Federal Election Commission, 130 S. Ct. 876 (Jan. 21, 2010). In that case, a bare majority of the Court found that for purposes of spending money in the political marketplace, corporations must be treated as identical to people. The Court also ruled that expenditures made independent of candidate campaigns – no matter how large those expenditures are – cannot be corrupting.

The result of the  Citizens United decision is that corporations can spend unlimited sums in elections. We have already seen the consequences in the Supreme Court’s handiwork with the advent of Super PAC spending in Iowa and New Hampshire. This is surely only the beginning.

Since the Supreme Court’s January 2010 decision, many have been scrambling to find new ways to limit the influence of money in politics. One largely unexplored way to limit the negative consequences of money in electoral campaigns is to institute temporal restrictions on campaign contributions. I recently published a law review article, entitled “Timing Is Everything: A New Model for Countering Corruption Without Silencing Speech in Elections,” in which I advocate for the imposition of limits on when money may be given and spent during campaigns.

Most jurisdictions seek to stem the pernicious influence of money on electoral processes by limiting the size of campaign contributions. Those jurisdictions have concluded that large campaign contributions may give rise to actual or apparent corruption and therefore place per election limits on the size of campaign contributions. However, other jurisdictions impose restrictions based on when those contributions are made and received. These temporal (or time-based) campaign contribution limits may take various forms, including pre-election, legislative-session, off-year, or post-election restrictions on contributions.

Temporal contribution limits are enacted with the understanding that money given candidates during certain time periods may pose a unique threat of actual or apparent corruption. To use but one example, a contribution given a few months after the election, and therefore at least a few years before a possible future campaign, may be given (or at least appear to be given) for access or influence, not to help a candidate wage a campaign that is years away. As another example, a contribution given during a legislative session can raise issues of corruption because the contribution may be given when a candidate is voting on an issue, which may directly affect that contributor. Members of the public should ask themselves why people are giving money to candidates, particularly incumbents. Quite obviously, elected officials should serve the interests of all of their constituents, not just those who can and do give or spend money in support of their candidacies.

Courts alternatively treat temporal limits on campaign contributions as either contribution limits or expenditure limits in disguise. On the one hand some courts view limits on when people can given money as akin to limits on how much money people can give. On the other hand, some courts view time restrictions on campaign contributions as expenditure limits, reasoning that if candidates cannot raise money during certain blackout periods then they are essentially prohibited from spending any money as well. This distinction makes a huge difference, as contribution limits are generally permissible while expenditure limits are not.

Many temporal contribution restrictions should pass constitutional muster. These restrictions allow candidates to amass the resources necessary to effectively advocate for themselves and serve to preserve the integrity of electoral and governmental processes by preventing money from flowing directly to candidates during time periods seen to be uniquely susceptible to corruption or its appearance.

Unfortunately, the majority of courts have found that the most effective temporal restrictions stand on constitutionally infirm grounds. Therefore I propose a novel legislative model in which jurisdictions could adopt variable contribution limits based on the time contributions are made and received. Under this proposal, per election contribution limits would remain the same, but contribution limits during the first half of an election cycle would be lowered to one third of the total limit. For instance, if the overall contribution limit for a four-year cycle is $3,000, a contributor could give a candidate no more than $1,000 in the first two years of the election cycle. The contributor could then give $2,000 in the last two years of the cycle.

This legislative model draws on two existing systems, found to be constitutional, for support. First, courts have already upheld variable contribution limits based on the identity of the contributor – for instance lobbyists can be subject to contributions limits to which other individuals cannot. Second, courts have also upheld variable contribution limits based on whether a candidate opts into a public campaign financing program. In both cases the purpose of the variable limits is to prevent corruption or its appearance.

This proposal would limit political fundraising when it is most likely to result in actual or apparent corruption and when it is least needed, in the beginning of an election cycle. This proposal would also allow contributors and candidates to give and accept the same per election contributions that they otherwise could. In sum, this new contribution limit structure would serve the government’s interests with minimal impact on the rights of contributors and candidates. At a time when public approval of elected officials is at an all time low, we must take steps to increase public confidence in electoral and political processes.

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