Equal DependenceRepresentatives should depend on citizens equally.
END PAY-TO-PLAY POLITICS
End pay-to-play politics by changing the way we fund campaigns
Our elections are incredibly expensive. And increasingly so.
Candidates for public office often have to raise millions of dollars to run a viable campaign. Not surprisingly, to amass the necessary funds requires a serious time investment. Just how much? Members of Congress spend 30% to 70% of their time raising money—and not from the average American, but from a tiny fraction of the wealthiest Americans.
The 2016 election, for example, cost a total of $6.4 billion, yet less than 1 percent of American adults provided two-thirds of the money going to all federal candidates, political action committees (PACs), and parties. In the 2014 elections, 31,976 donors—roughly one percent of one percent of the total United States population—accounted for an astounding $1.18 billion, or 29 percent of total disclosed political contributions at the federal level.
These large donors and special interest groups control who can run for office. After all, without access to big money, it is basically impossible to run a campaign to win the election. So while many people are rightly frustrated with the party primary system, there exists a second, far more influential primary that happens well before individuals even declare they candidacy: the money primary.
What does begging for money do to our politicians? They are forced to spend an extraordinary amount of their time in call centers dialing for dollars, calling the tiniest slice of the wealthiest Americans. When they do that,they develop a sixth sense—a constant awareness about how what they do will affect their ability to raise money. And so they make sure their donors are happy—not their constituents.
The Framers of our democracy would be appalled. The Constitution’s authors gave us a “republic,” which was to be a representative democracy—a government, as James Madison put it in Federalist 52, that would be “dependent on the people alone.” The problem here is that Congress has developed a different dependence: a dependence upon the funders. That new dependency conflicts with government’s proper dependence upon the people—all of the people.
In modern times, wealthy donors, corporations, and special interest groups have been spending record-breaking amounts of money in each election cycle, drowning out the voices of the people. This is a corruption, because the need to raise money from a tiny group of funders—who are far more white, male, and wealthy than the average American—drives candidates and elected officials to make both overt and subtle shifts in their policy preferences and behavior in order to keep their funders happy. These shifts distort the topics highlighted during campaigns, the types of policies pursued once in office, and, of course, the laws that pass.
CONSEQUENCES OF THE STATUS QUO
Our current way of funding campaigns favors the wealthiest donors and excludes those who cannot afford to contribute. This works against both the left and the right; in fact, it’s the root cause of the political polarization we experience today. It’s the reason why we see so many unpopular policies implemented; after all, when the donor class wants something done—whether a tax break or deregulation—all they need to do is pick up the phone. But the concerns of everyday people are regularly ignored.
This corruption affects our schools, our healthcare system, the environment, our tax code, and every other aspect of our lives. And until we end this corruption of big money in our politics, our politicians can’t and won’t represent the people. It has become painfully clear that this unrepresentative democracy cannot govern America anymore. There is no sensible reform possible until we end this corruption—our hope for solving the most urgent problems facing our country today depends on our ability to end this pay-to-play politics first.
One major roadblock to reform is the decisions of the Supreme Court. Starting with the case Buckley v. Valeo (1976), the Court has limited the government’s ability to regulate the amount of money in politics. And as bad as things were at the end of the 20th century, things have gotten much worse.
In the infamous Citizens United v. FEC (2010) decision, the Supreme Court ruled that the First Amendment protects the rights of corporations and unions to spend unlimited amounts of money promoting or opposing political candidates, so long as the money is spent independently of the campaigns of those candidates.
Three months later, based on the Supreme Court’s analysis in Citizens United, the D.C. Circuit Court struck down limits on annual contributions from individuals to independent expenditure groups in SpeechNow v. FEC (2010) by concluding that “the government has no anti-corruption interest in limiting contributions to an independent expenditure group.” Because of SpeechNow, the Super PAC was born. That has opened the floodgates of effectively unlimited campaign spending.
But here’s the twist: SpeechNow was a lower court decision that was not appealed to the Supreme Court. In fact, the Supreme Court has never ruled on whether Super PACs that can take unlimited contributions are constitutional. We plan to get the question to the High Court, and when we do, we believe we can get the Supreme Court to restore Congress’s power to regulate Super PACs through a unique legal strategy in our End Super PACs litigation:
End Super PACs
Both Citizens United and SpeechNow turn on the definition of “corruption,” but their problem is that they both rest upon a conception of “corruption” that is decidedly modern and inconsistent with our Framers’ vision.
The First Amendment’s prohibition on regulation of freedom of speech puts some limits on the government’s ability to regulate political campaigns. The courts acknowledge that laws that prohibit political corruption may be valid. But here is the problem: recent court decisions have limited the definition of “corruption” to bribery, also known as quid pro quo corruption—in other words, illegal briefcases of cash for political favors. And because independent expenditures are, by definition, independent—they don’t go directly to the politicians who can be bribed—the courts have said laws restricting these contributions do not prevent corruption.
This sense of “corruption”—really, just bribery—is much more narrow than what the Framers intended. The kind of corruption the Framers had in mind is more in line with the modern definition of “institutional corruption.” An institution is corrupted if the dependence intended for that institution has been compromised. For example, a judiciary is corrupted if judges are dependent upon political favor, rather than upon the law, since the intended dependence of the judiciary is to be “upon the law.” Likewise, a school is corrupted if it is completely controlled by narrow interests—like boosters of the football team—and entirely ignores its primary academic mission. Congress can suffer the same kind of corruption, even without donors directly bribing U.S. Senators by stuffing cash in the trunks of their cars.
Our End Super PACs litigation uses the Framers’ idea of corruption to appeal to originalist justices on the Supreme Court in order to revive the capacity of Congress and state and local legislatures to restrict Super PACs. We believe we can show that Super PACs create precisely the kind of corruption that the Framers were trying to avoid, and that any consistent “originalist” should therefore reject Super PACs and overturn SpeechNow.
Alaska offers a unique opportunity to achieve this result. Alaska law permits citizens to complain if Alaskan election law has not been enforced. Working with citizens in Alaska, we have filed three citizen complaints challenging the failure of Alaska officials to enforce their anti-super PAC law. And if the Alaska courts refuse to continue to follow SpeechNow, we will take that case to the Supreme Court, and ask the justices — what would the Framers say about Super PACs?
In February 2018, we filed a complaint on behalf of three Alaska citizens, charging the election commission with failing to enforce its super PAC law against two Alaskan super PACs. The commission rejected our complaint, citing SpeechNow in its reasoning. We are working with leading experts to present our argument to the court. A hearing will take place on October 4, 2018. Stay tuned for more info.
Public Funding of Elections
While our ability to end big money in politics with contribution limits is severely hamstrung by the Supreme Court, there’s another effective and viable antidote: public funding of elections.
Rather than spending a ton of time fundraising from the tiniest slice of America, public funding will force candidates and representatives to raise funds from all American voters, thereby spreading the funder influence to all of us and restoring the principle of “dependent on the people alone.”
More importantly, public funding does not require a constitutional amendment. All it’d require is a single statute establishing small-dollar funded elections. It can happen tomorrow.
Public funding of elections has been in American political discourse since at least 1907, when President Theodore Roosevelt endorsed the idea in front of Congress. But it took another 60 years to make it into federal law—when Congress passed public financing for presidential elections in 1971. The system was successful, arguably responsible for the victorious campaigns of Jimmy Carter and Ronald Reagan. (The system is in shambles now, as the money available hasn’t kept up with the rapidly increasing cost of running campaigns. Only Martin O’Malley used the presidential public financing system in 2016.)
Since then, a number of public funding programs have been successfully implemented at the state and local level. These programs have radically improved the relationship between citizens and their representatives by:
- Increasing the number of small donors
Opening the door for new policies
- Empowering all voters, regardless of wealth
- Diversifying candidates and elected officials
- Broadening donor demographics
Reducing candidates’ time spent on fundraising
Here are three types of public financing systems that Equal Citizens actively supports:
- Vouchers: All registered voters receive vouchers that can only be used as political donations. Seattle is the first place in the United States to implement such a program. Every Seattle resident receives four $25 vouchers. In the first year of the program, the total of small donations roughly tripled, and candidates who participated in the voucher program raised a much higher percentage of their overall funds from constituents than their non-voucher and pre-voucher counterparts.
- Matching Funds: Candidates who qualify for a matching funds program (generally candidates need to collect a minimum amount of small-dollar donations to qualify) get their small-dollar donations matched at a fixed rate with public funds. New York City, for example, matches all small-dollar donations at a rate of 6-to-1. Portland, Oregon, Washington, D.C., Howard County and Montgomery County, Maryland also use this system. Baltimore, Maryland is currently considering a matching fund system.
- Full Public Financing: Candidates who qualify by collecting a set number of small donations have their entire campaign funded by a block grant provided by the state—sometimes with the potential to qualify for more money if needed. Instead of fundraising from out-of-state millionaires, candidates spend more time engaging with their constituents. Maine, Connecticut, and Arizona currently use this system.
Currently, there are two bills introduced in the House for public funding of congressional elections that we support:
STOP THE REVOLVING DOOR
Add effective restrictions on the revolving door between government service and work as a lobbyist
Lobbying is an essential part of democracy. Sure, there are cases of quid pro quo corruption as with super lobbyist Jack Abramoff, but at its core, lobbying is just citizens coming together to make demands of their government.
Lobbying, of course, is not new to the American republic. The moniker likely dates to President Grant: Grant often enjoyed cigars and brandy with friends in the lobby of the Willard Hotel in Washington D.C. Influence peddlers, or “those lobbyists,” as Grant called them, would approach him while he sat there. Grant’s sneer, however, suggests correctly that the relationship of these “peddlers” to democracy has always been uncertain, and for many, troubling.
For most of the history of lobbying, the techniques of lobbyists, and their relationship to Congress, were, in a word, grotesque. Well into the twentieth century, congressmen kept safes in their offices to hold the bags of cash that lobbyists would give them. And late into the twentieth century, they were taken on elaborate junkets as a way to “persuade” members of the wisdom in the lobbyists’ clients’ positions. As a journalist from the 1930s colorfully described, a “small army” of lobbyists was “busy in Washington burning the bridges between the voter and what he voted for.”
The lobbyist today is ethical and well educated. Lobbyists usually work hard to stay within the letter of the law. More than ever before, most lobbyists are just well-paid policy wonks, expert in a field and able to advise and guide Congress well. Yet as lobbying has become more respectable—and this is the key—it has also become more dangerous. The rent-seeking that was hidden carefully before is now open and notorious. No one is embarrassed by what the profession does, because everything the profession does is out in the open for all to see.
Because members of Congress are required to raise an ever increasing amount of campaign cash (see the End Pay-to-play Politics section), they also increasingly depend money from lobbyists—and from the special interests hiring those lobbyists—to fund their reelection campaigns. Lobbyists have become the center of this economy of influence by acting as funding middlemen between members and special interest groups.
And as the lobbyists’ clout (and their paychecks) continue to grow, Capitol Hill has become a “farm league for K St,” as Rep. Jim Cooper (D-TN) put it. Members, staffers, and bureaucrats have an increasingly common business model that focuses on their life after government—as lobbyists. A recent study finds that about half of senators and one third of house members registered as lobbyists upon leaving Congress (up from less than 5 percent in the 1970s), often with a quintuple increase in salary.
CONSEQUENCES OF THE STATUS QUO
The mutual dependence developed between members of Congress, lobbyists, and special interests has profoundly changed the way Washington works.
Studies have found that lobbying efforts that hire former government officials as lobbyists are far more likely to succeed, and more likely to get earmarks than those that don’t. Because revolving door lobbyists can deliver better results, they can charge considerable sums for their lobbying work, which means they’ll more likely represent corporate clients who can pay for their high rates. This further stacks the deck against public interests representation in Washington.
Corporations, for example, have increasingly used lobbying to expand their influence in the legislative process. Annual inflation-adjusted corporate spending on lobbyists almost doubled, to more than $2 billion, between 1998 and 2010. When it comes to lobbying, they have outspent unions and public interest groups combined 34-to-1.
The Honest Leadership and Open Government Act of 2007 created a two-year cooling-off period during which former Senators may not act as lobbyists. But this restriction didn’t really matters much in the end, as former members have plenty of ways to lobby without having to register.
Here’s the problem: there’s no comprehensive definition of who is or is not a lobbyist. It is therefore impossible to properly enforce revolving door restriction, and this lack of a clear definition has led to the practice of “shadow lobbying” in which former legislators engage in practices related to lobbying—including working for lobbying shops and using government contacts to influence legislation—without registering as lobbyists.
As a result, the public is left in the dark about who is influencing whom.
Perhaps most importantly, lobbyist are allowed to give money to politicians they are trying to persuade—an action that certainly gives the appearance of a bribe. When politicians rely on campaign cash from lobbyists to get back into office, they will do whatever they can to make sure the lobbyists will continue to contribute, which inevitably mean catering to the special interests the lobbyists represent.
The American Anti-Corruption Act—a piece of model legislation crafted in 2011 by a group of democracy reform leaders including our founder Lawrence Lessig, former Federal Election Commission chairman Trevor Potter, and infamous super lobbyist Jack Abramoff—would resolve many problems with the current lobbying system.
The Act includes a five year cooling-off period for former members of Congress and their senior staff after leaving office and prohibits members of Congress and senior congressional staff from negotiating future private employment while in their current government positions.
The Act expands the definition of “lobbyist” to include anyone who has two lobbying contracts or provides strategic advice to lobbying efforts or oversees the providing of such advice and has spent at least 12 hours on lobbying. This would end the practice of shadow lobbying. The Act also dictates that lobbyists may not make donations to politicians and prevents lobbyists from bundling money from their friends and family.
We also fully support Elizabeth Warren’s Anti-Corruption and Public Integrity Act. This omnibus bill would, among other things, ban foreign lobbying; ban lobbyists from donating to candidates and Members of Congress; institute a lifetime ban on lobbying by former Members of Congress, Presidents, and agency heads; increase transparency, and create a new, independent agency “dedicated to enforcing federal ethics laws and by expanding an independent and empowered Congressional ethics office insulated from Congressional politics.”