the federal election-campaign finance problem

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by William Grigsby

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  • THE FEDERAL ELECTION CAMPAIGN-FINANCE PROBLEM A Partial Remedy

    William G. Grigsby

    March2015

    Professor Emeritus, City and Regional Planning, University of Pennsylvania emgrigsby@earthlink.net

  • Executive Summary

    1. The foundation of America's representative democracy is the right of its citizens to choose at the ballot box the persons whom they wish to govern them. It is prescribed in Articles I and Il of the Constitution and expanded on in five different constitutional amendments.

    2. The residency requirement with respect to this right is strictly defined by each of the 50 individual states. In every state, in order to vote in a federal election, a person must be a legal resident of the state or congressional district in which the election is being held.

    3. In sharp contras4 the right to make campaign contributions in federal elections has no residency requirement. People are free to make donations to any candidate for federal office anywhere in the country regardless of where they themselves live.

    4. This huge difference between the two sets of rules is striking because the right to make campaign contributions is the child of [[the]] our right to vote; that is, without the right to vote, campaign contributions would not even exist. Making residency requirements for contributions the same as they are for voting would give recognition to this familial relationship and in the process would bring some consistency to this area of election law.

    5. Even more important than bringing consistency to one piece of election law, prohibition of contributions by non-residents would enable states to have some assurance that outside interest groups are unable, through campaign donations to members of the states' Congressional delegations, to gain influence in the promotion of policies and programs that are at odds with the states' own interests. By taking this step, states could have some expectation that the persons whom their citizens elect to federal office would more adequately represent them in Washington. The possibility of quid pro quo corruption is not the issue here. It is simply one of proper representation of constituents.

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  • 6. Prohibition on outside contributions would include contributions to the independent expenditure campaigns of so-called Super PA Cs and 501 ( c )( 4) organiz.ations and also the donations to political parties that are passed through to candidates.

    7. Reflecting the difference between contributions and ordinary speech, prohibition against outside contributions would not prevent outsiders from speaking out for or against a candidate, either singly or in groups. They would, however, be required to appear prominently in their electioneering ads, so that voters could adequately evaluate the presentation.

    8. The restriction would apply to Presidential as well as Congressional elections. Each state primary would be treated as a separate election. In the general election in the Fall, the selection in each state of representatives to the Electoral College would also be treated as a separate election.

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  • Throughout the entire 225 year history of the United States, no one has questioned the right of American citizens to financially support candidates for federal office anywhere in the country. A resident of one state may contribute to the campaigns of candidates in the other 49 states without limit This right is so much a part of the political fabric of the United States that not only is it not questioned but to do so would likely be seen as simply foolish. Over the years, there have been numerous attempts to regulate the dollar amount of these donations, but not their geographic origins. The right of individuals and organiz.ations to contribute wherever they please regardless of where they are domiciled has been unchallenged.

    In sharp contrast to the absence of geographic restrictions on campaign contributions geographic restrictions on voting -- which has precisely the same purpose as campaign contributions; i.e. to elect a favored individual to federal office -- [[is a right that is strictly]] are shmply circumscribed [[with respect to residency]] by state laws. To be eligible to vote in a particular federal election, an individual must be a legal resident of the state or congressional district in which that election is being held. Voters cannot in each election cycle choose the district in which they wish to cast their ballot, based on their assessment of which electoral outcome they would most like to influence. Thus, while the right to engage in "contribution-speech" is almost unlimited, the residency restriction attached to its close companion, "voting-speech" is severely restricted.

    As a consequence of the Supreme Court's sweeping 5-4 decisions in Citizens United v Federal Election Commission, 130 S. Ct. 876 (2010), and McCutcheon v. Federal Election Commission, 134 S. Ct. 1434 (2014), the chasm between contribution-speech rights and voting-speech rights has become even wider. Throughout its Citizens United opinion. the Court majority treats contributions as being virtually synonymous with speech itself, reasoning that since contributions are usually absolutely essential if political

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  • speech is to be heard, they are the equivalent of speech and therefore that any constraint on the size of a campaign contribution is an abridgement of speech itself in violation of the First Amendment. So now, individuals may donate virtually as much as they wish.

    In addition, in the Citizens United decision, the Court majority ruled that the contribution-speech of organizations merits the same First Amendment protection as that of natural persons. Again by contrast, voting-speech can be exercised only by natural persons and only in the state or congressional district where they legally reside.

    Not unexpectedly, in neither Citizens United nor McCutcheon did any questions concerning the geographic origins of campaign contributions arise. Except for foreign contributions, where donors legally reside has never been an issue. This is unfortunate because there are at least two compelling reasons for greatly narrowing their First Amendment protection in federal election campaigns to include only donors who are in the state or congressional district where they wish to make a campaign contribution.

    The first reason has to do with the origin of contributions-speech. It is the child of the right to vote. Were voting-speech not a part of our political system, contributions-speech would not even exist, much less be in need of First Amendment protection. This unique provenance of contribution-speech as an outgrowth of voting-speech strongly argues for contributions-speech not being more broadly protected than its progenitor.

    First Amendment protection for campaign contributions, it should be emphasized, is to enable candidates to be heard, not the donors. Potential donors do not need such protection. They already have it in the language of the First Amendment regarding speech generally. If prohibited from making a donation, they have the money to speak out either individually or in groups, just as newspapers and other media outlets already

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  • do. They would be required only to make it abundantly clear in their ads who is doing the speaking, so that voters would be fully aware of the out-of-state or out-of-district origins of the ads and evaluate them accordingly. ((What about anonymous bloggers?))

    The second reason, and an even more compelling one, for allowing only legal residents to make campaign contributions can perhaps best be explained through reference to an actual election campaign, that of Montana Senator Max Baucus in 2008. According to reports filed with the Federal Election Commission by the Baucus campaign during the Senator's re-election bid (well before Citizens United), the campaign received the bulk of its more than $8 million in donations from out-of-state contributors. Among the most prominent contributors were Big Pharma and the health care industry. It is unlikely that these contributors were interested at all in the current and future well-being of Montana. They were focused instead, as they should have been, on the financial well-being of their stockholders. Indeed, many of them would have been hard pressed to pick out Montana on a map. Their efforts were intended, nevertheless to help determine who would represent Montana in the Senate for the next six years.

    And their efforts no doubt made a difference, not only in the election outcome but also in whose names appeared on the ballot. Even before the Baucus re-election campaign got underway, the Senator's huge, largely out-of-state financed war chest certainly must have deterred at least a few potential opponents from entering the primary race. So even the candidates appearing on the ballot were no doubt determined in part by outside interests.

    The most significant damage of unlimited contribution-speech to our representative democracy occurs, however, after the votes have been counted. The outside donors who have contributed large sums to various campaigns [[or who have threatened not to contribute]] expect quite rightly to be well treated in return. Buying such access has not

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  • been viewed as quid pro quo corruption by the Court but rather has been described as the very nature of politics: "Ingratiation and access ...... are not corruption .. " Citizens United, 558 U.S. at 360. Such arrangements are, indeed, the very essence of politics.

    Although buying access may be acceptable if the donor is a constituent, when the access is purchased by out-of-state funding sources, the political equation changes in an important way. The interests of inside-the-state donors and those of outs