- Commentary: These ballot initiatives could help fix our broken election system
- January 24, 2017 | Author: Trevor Potter
- Law Firm: Caplin & Drysdale, Chartered - Washington Office
Anyone looking at the 2016 presidential election can see American democracy is in trouble.
The public is feeling the direct impact of a broken campaign finance system. As many as 80 percent of voters believe the federal government - and the entire U.S. political system - is out of touch with the average citizens it is meant to represent.
Given the challenges at the federal level, the momentum for democracy reform is now in the states, from the grassroots level. Democracy reformers are taking steps to adopt new policies and proposals that would counter the corrupting power of money in state and local governments.
Two states stand out: Washington and South Dakota. Both have ballot initiatives that could serve as a model for national reform.
The states seek the same thing: to have Americans feel their elected representatives are attentive to their views and are acting for the common good. That is the goal of any real democracy.
It wouldn’t be the first time state campaign-finance reforms trigger change at the federal level. In the late 19th century, New York and several other states passed the nation’s first laws that required disclosure of campaign contributions and expenditures in state races. The federal government followed suit with the Publicity Act of 1910, which mandated similar requirements for congressional elections.
Both South Dakota and Washington State want to make sure politicians are more accountable to voters than to wealthy donors. At the heart of the measures is improved enforcement of existing election laws.
At the federal level, the feckless Federal Election Commission (Full disclosure: I sat on the commission from 1991 to 1995 and was its chairman in 1994) is deadlocked and rarely takes action when federal campaign finance laws are violated. Recognizing that laws - no matter how strong - are nothing without enforcement and accountability, the South Dakota and Washington State measures invest in strong enforcement mechanisms that can actually hold violators of campaign finance laws accountable.
South Dakota’s initiative, for example, would create a new government body, the South Dakota Ethics Commission. Washington State’s increases the enforcement capabilities of its existing Public Disclosure Commission.
In addition, both states’ initiatives put power in the hands of voters with new citizen-funding programs. While differing slightly in implementation, each initiative would create a “democracy credit program” that would give each registered voter a $50 “credit” to assign to state candidates of their choosing.
Some opponents to this sort of citizen funding insist that we cannot afford such systems. But we cannot afford our current system, which is undermining our democracy. The reforms, which are cost-limited by design, would, in fact, save money.
In addition to the time lawmakers devote to raising funds rather than solving the nation’s problems, the tax loopholes and crony capitalism thriving under the current system cost far more than any citizen-funding system. Citizen funding would stop politicians’ all-consuming political fund-raising from lobbyists and wealthy special interests, while empowering ordinary citizens.
Both ballot initiatives have unique aspects that can serve as a guide for Congress, the Federal Election Commission, the next president and all those responsible for improving America’s broken federal campaign finance system.
Washington State’s measure, for example, specifically targets the problem of “coordination,” which has been plaguing elections system since the U.S. Supreme Court’s 2010 decision in "Citizens United v. FEC." Justice Anthony Kennedy argued in his majority opinion that the reason outside political groups can accept unlimited money from wealthy contributors is because they are independent from the candidates and their election campaigns.
But the reality of the current system is far from what Kennedy envisioned. Democratic presidential nominee Hillary Clinton’s campaign, for example, has openly admitted that it is coordinating directly with Correct the Record, a super PAC, and asserts it can do so as long as the super PAC doesn’t run paid advertising. Similarly, two super PACs supporting Republican presidential nominee Donald Trump - Rebuilding America Now and Make America Number 1 - freely share high-level staff with the campaign.
Regulating coordination is crucial because if the campaigns are working directly with outside groups, wealthy individuals and corporations can give unlimited contributions to an “independent” group - and gain direct access to and influence over the candidate. That’s not how the system is supposed to work.
Washington State’s measure provides a fix by detailing the circumstances in which a contribution is coordinated with a candidate - guidance needed at both the state and federal levels to stop this abuse.
The initiative works to curb efforts to evade contribution limits. Candidates, for example, can ask donors to give money to so-called independent super PACs that are backing them rather than to the candidates themselves, a widespread practice at both the state and federal levels.
South Dakota’s measure also sets an example for national elections by taking on big donors and lobbyists. The ballot initiative makes several improvements to the state’s ethics laws.
South Dakota is now the only state where lobbyists can give secret, unlimited gifts to politicians. This measure, if passed, would end such gifts and stop the revolving door of politicians taking jobs as lobbyists immediately after they leave office.
As a nation, Americans need to figure out how to design and implement better campaign finance systems so that lawmakers and those who lobby them are held accountable. On Tuesday, voters in South Dakota and Washington State can give all Americans hope that saving American democracy is still possible.
Together, we can begin to promote political speech for all citizens - not just the wealthy.