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Reddit AMA: FEC Chair Says Average Voters Don’t Control Elections

Campaign finance reformers and California based government transparency group Maplight held an AMA on Reddit Wednesday. The two-hour event addressed growing public concern over the high-profile Supreme Court case, McCutcheon v. FEC and the challenges posed by potentially unlimited spending on elections.

A common theme from questioners was the contention that the role of money in politics should be removed or diminished. Responding to a question, Trevor Potter (former Chair of the Federal Elections Commission) and President of the Campaign Legal Center said,

I would prefer to say that we are trying to get citizens and their money back INTO politics, so that it does not just become the preserve of a few billionaires

The panel of participants included:

  • Trevor Potter, former FEC Chairman and legal council to Stephen Colbert
  • Liz Kennedy, Counsel at Demos
  • David Donnelly from the Public Campaign Action Fund
  • Paul Ryan, also from the Campaign Legal Center
  • Melanie Sloan from Citizens for Responsibility and Ethics in Washington
  • Jonathan Soros, Senior Fellow at the Roosevelt Institute
  • Fred Wertheimer, President, Democracy 21
  • Pamela Bershin, Maplight
  • Zephyr Teachout, from Fordham Law

 

Here are some highlights from the AMA:

 

Overturning Citizens United v. FEC

Q: Salacious

I have heard a lot about amending the constitution after Citizens United, but I have never seen any proposed text for an amendment. Are there such proposals, and if so, which (in your opinion) is the best proposal? Regardless of whether one exists or not already, what would you propose as the text of this hypothetical amendment?

A: Trevor Potter (Campaign Legal Center)

There are numerous suggestions for such an amendment. The problem is that they are either so broad as to potential compromise freedom of the press and speech (“Congress may regulate all money spent in elections”) or are too narrow or vague ( Congress may regulate political spending by corporations, but may not infringe on freedom of the press) thereby putting the whole matter back in the laps of the Supreme Court.

 

Protecting Freedom of Speech

Q: Stanley_Goodspeed

The Supreme Court has ruled that contributing to political campaigns is a form of speech protected under the first amendment. For those of you that can speak personally (not necessarily on behalf of your organization), do you agree with this ruling?

A: Paul Ryan (Campaign Legal Center)

More precisely, the Supreme Court has held that contributing to political campaigns is a form of speech by proxy. The contribution demonstrates support, generally, by the contributor for the recipient candidate. The candidate then converts the money into political speech by purchasing advertising, etc. It is for this reason that the Court has considered limits on contributions to be less burdensome on First Amendment activity than limits on expenditures, which the Court has generally not allowed. See, for example, the Court decision in FEC v. Beaumont explaining this.

To elaborate a bit more, the Court generally applies a balancing test in First Amendment cases. First, the Court considers what the burden on speech is. Second, the Court considers whether there’s any sufficiently important public/governmental interest to support the burden. With respect to contribution limits, the Court has long held that they advance the public interest in preventing corruption and the appearance of corruption.

A: Trevor Potter (Campaign Legal Center)

There are numerous suggestions for such an amendment. The problem is that they are either so broad as to potential compromise freedom of the press and speech (“Congress may regulate all money spent in elections”) or are too narrow or vague ( Congress may regulate political spending by corporations, but may not infringe on freedom of the press) thereby putting the whole matter back in the laps of the Supreme Court.

 

Q: Monoglot

If money spent to amplify a political message is held to be a kind of free speech, why are there any limits whatsoever on campaign finance? It’s hard to see what a defense of sensible campaign finance laws looks like from a purely constitutional standpoint, absent an amendment making the limitations explicit.

A: Zephyr Teachout (Fordham Law)

In many cases there are multiple constitutional principles–democratic principles–that are weighed against each other, not just here. No single part of the Constitution trumps all others.

This Court has held that only corruption and the appearance of corruption justify what they deem to be speech restrictions. However, many people argue that other principles, such as the principle of equality, and the principle of assuring a representative republican form of government, should also be weighed.

Corruption is a constitutionally weighty principle–it motivated the creation of the Constitution, and while a majority on this Court interprets it in a very narrow way (Justice Stevens rightly called it “crabbed”–it doesn’t fit with American history), it rightly has a pride of place in constitutional considerations.

Justice Breyer sees First Amendment concerns on both sides of the weighing.

In short, there are many ways to recognize speech interests, but still find that legislation promoting other interests is constitutionally permissible. (Consider the Court’s weighing of speech vs. security).

A: Paul Ryan (Campaign Legal Center)

First Amendment legal analysis is always a balancing test–in which the Court weighs the burden on expression/speech against the public/governmental interest in the particular restriction. I explain in a post above how the Court has conducted this balancing test with respect to political contributions. We live with many restrictions on our speech because we’ve decided, as a society through our political and legal institutions, that we want such restrictions. Try, for example, standing on your front porch at 3AM with a megaphone and sharing your political views with the world. If you have neighbors, the police will likely be on your porch within minutes, writing you a citation for violating a noise ordinance. And your neighbors will likely thank the police.

 

Money In Politics

Q: RandomLiberty

How do you feel about states like MO, OR, UT and VA that don’t place any caps on campaign spending? If someone’s willing to blow $5 million supporting a candidate, they’re always going to figure out a loophole that lets them do it, no?

It seems to me that full disclosure (or in an ideal world, real-time disclosure) is more feasible than a tangled web of regulations that just divert money into the shadows.

A: David Donnelly

Important question. Here’s a partial answer. We need an alternative to what you describe. We won’t get the money out of politics. But we can bring the people back in. To do that we need to provide incentives for candidates to actually care about what voters think and to seek support from them and not just wealthy Americans. One such incentive is matching small donations. It won’t limit your ability to spend a gazillion dollars to elect a candidate, but it provides an alternative, viable path for someone who doesn’t want to depend on your money to get elected.

A: Liz Kennedy

We don’t usually take a “law enforcement isn’t that useful because surely people will try to cheat” perspective when we set out to solve other problems in our society, and I don’t think that cynicism is necessary here. Of course people might try to evade a law, but that’s no reason not to set up a coherent and comprehensive campaign finance system – one that protects our political rights while protecting our government from domination by a tiny slice of wealthy Americans, the donor class. 84% of Members of Congress elected last year raised more money from the 1% of the 1% than from all of their small donors combined. The problem is that the donor class has very difference public policy preferences than average Americans, particularly on economic issues, but our government is more responsive to the preferences of the donor class than the vast majority of Americans. We certainly also need effective disclosure so any financial relationships between candidates and supporters are transparent, but we deserve more than that. In a democracy, the size of your wallet shouldn’t determine the impact of your voice or your right to representation.

 

Q: Charliekillsrats

I always get the impression that most politicians like say that want reform, but they just say it and don’t actually want it, since, once in office as incumbents, they benefit greatly from the current system against any challengers. It seems simply an effective tactic to get elected.

Is there any hope that politicians will actually benefit from a new system enough to do more than just say they want reform?

A: Liz Kennedy (Demos)

There are lots of tools we can use to show our elected leaders that they need to fix the problems endemic to our current campaign finance system. For example, citizen funded elections, where small private contributions were matched by public funds, would incentivize candidates to reach out to average Americans – Professor Michael Malbin at the Campaign Finance Institute has shown that most of New York’s legislators would raise about the same amount of money under that system as under the current system that leaves candidates dependent on the donor class. Second, public opinion confirms that this is an important issue for the voting public, and we need to keep reminding our representatives that we support policy solutions to this problem that they need to adopt now, or face electoral consequences. Almost 80% of Americans believe that large campaign contributions are preventing our government from addressing the common problems that we face, and we need to get our government to address these issues with our democracy so that we can better work out our other pressing problems.

 

Q: radiofiend

How do you think organizations can better work together to make progress in this issue – whether it’s getting an amendment passed, passing public financing laws, or simply in disclosure legislation? Importantly, is there any momentum behind getting actively involved in the 2014 midterms to promote the kinds of candidates who can advance these issues? Which groups would you say are the most involved in the political side of this fight?

Thanks! Keep up the stellar work. Given all the dysfunction from this past month, I think we can all agree this needs to be the defining issue of today.

A: Trevor Potter (Campaign Legal Center)

I would prefer to say that we are trying to get citizens and their money back INTO politics, so that it does not just become the preserve of a few billionaires

A: Zephyr Teachout (Fordham Law)

The reason you probably think that there’s limited cooperation is that there is limited money fighting corruption in politics. However, the cooperation is extraordinary–last year in New York, the alliance of groups fighting for public financing showed power that reached the Governor and led to the creation of the Moreland Commission, the New York Times repeated push for public funding, and winning a close race.

I am an enthusiastic board member of the Public Campaign Action Fund, which does hard hitting electoral work and is a great team player. What state are you in?

A: Liz Kennedy (Demos)

It’s only through the hard work of us all that we’ll be able to turn the tide and get the reforms we need to protect our democracy. As you identify, there are plenty of fights happening across the country, and I’d encourage you to find a local group that is working on one (or more) of these issue campaigns and see how you can get involved.

 

Q: massive217

What exactly is the problem with people being able to donate as much as they want? It is their money that gets taken in larger amount by the government in the form of taxes. Shouldn’t they have a say proportional to the amount that they give?

A: Paul Ryan (Campaign Legal Center)
Sure, unless you believe in the principal of “one person, one vote” (a.k.a. “democracy”). I think political theorists have a word for political systems in which political power is proportional to wealth–plutocracy.

A: Maplight

We’ve created a system in this country where the only way to get elected or re-elected is to take in large sums of money from interests who want something from government. These large donors therefore have an outsized role in our democracy. Is that fair? democratic?

I don’t think anyone on the right or the left would question there’s an economy of influence on Capitol Hill and in State Legislatures across the country. A strong dependency for money, in the form of campaign contributions, exists on both sides of the aisle. We all need to work together toward a political system where fundraising doesn’t distort lawmaking or corrupt our democracy.

 

Supreme Court Case McCutcheon v. FEC

Q: Dupontguy83

Mitch McConnell has been attacking campaign finance regulations for a long time. Did he play any role in the case at the Supreme Court last week?

A: David Donnelly (Public Campaign Action Fund)

Yes, he was invited to have his lawyer present arguments at the Supreme Court. His view is that there should be no limits on campaign contributions whatsoever. It’s an incredibly unpopular position and one that I hope the court doesn’t embrace. It’s important to call McConnell out on this radical position.

A: Zephyr Teachout (Fordham Law)

The argument he made–that campaign contribution limits should be reviewed just like expenditures, and only be upheld if they are narrowly tailored to prevent quid pro quo corruption–was not actually addressed in oral argument.

A: Liz Kennedy (Demos)

It should also be noted that before Mitch McConnell was against campaign finance regulations he was for them! He was a big supporter of disclosure laws at one point, and is even on the record as previously supporting public financing.

 

Image credit: CED.org