Two recent controversial Supreme Court decisions have left advocates of campaign finance reform with a gloomy feeling. Many great American reform movements, however, suffered setbacks before succeeding. With foresight and determination, we can push the political pendulum back in the direction of reform. According to the old proverb, “the darkest hour is just before dawn,” and lights on the horizon may be already appearing in the form innovative approaches to curbing political corruption.
Some brief background: Our federal campaign finance laws began in earnest in the 1970s. Their purpose is to fight political corruption – money spent in return for political favors – while protecting donors’ First Amendment rights. In 2010, the Supreme Court handed down the Citizens United decision. That case found unconstitutional provisions of the Federal Election Campaign Act (FECA) that restricted corporations from spending money to influence elections. It led to the proliferation of “Super-PACs” or political action committees. Since then, billions of dollars have been unleashed into the campaign process, producing parades of candidates bowing down to big money interests.
Supporters of fighting the corrupting influence of money in politics deserve better. We should not be drowned out by those whose accumulated wealth allows them to buy elections and access. Although presently an attorney in private practice, I spent several years as chief of the Public Interest Division and Special Litigation Bureau of the Illinois Attorney General's Office. Those years in the public sector gave me an appreciation of clean government and the importance of avoiding the appearance of impropriety. Citizens United and McCutcheon could not have disappointed me more. But they also prompted me to look for constitutional alternatives.
One bright light in this effort has been Illinois Senator Dick Durbin’s (D) Fair Elections Now Act, introduced earlier this year. The proposal would incentivize congressional candidates to fund their campaigns through small donations while encouraging small donors to participate in the electoral process. The bill encourages congressional candidates to accept donations limited to $100 dollars by offering such candidates matching public funds of up to six times the amount raised through these small donations. A particularly attractive feature of the bill would provide a tax credit to donors for qualifying small donations to political campaigns. The proposed tax credit of up to $50 per individual, or $100 on a joint return – is a first of its kind.
In light of Citizens United and McCutcheon, the proposal represents an alternative approach to eliminating the evils that the campaign finance laws were intended to address. Everyone who is concerned about the election process should ask his or her Representative or Senator to get on board.
In addition to passing Senator Durbin’s Fair Elections Now Act, other steps can be taken to minimize corruption. In McCutcheon itself, Justice Breyer strongly dissented from doing away with aggregate limits on political contributions. In his view the “base limits” on contributions are not sufficient in and of themselves. FECA’s base limits are the maximum that an individual may contribute to a particular federal candidate, political party committee or political action committee. The thrust of Justice Breyer's dissent was that, in the absence of aggregate limits on donations, creative wealthy donors will find ways to circumvent the base limits. They'll do so, according to Justice Breyer, by contributing to political committees, which, in turn, will funnel the money to candidates in amounts that the donors could not contribute directly because of the base limit.
To address Justice Breyer’s concern, here is a partial solution within the constitutional parameters of the McCutcheon decision: put the burden on the donor to show that the base limits have not been exceeded. In other words, where a donor contributes to a committee that makes a contribution to a candidate, and the candidate is one to whom the donor has already contributed the donor's base limit, make use of a rebuttable presumption that the donor has knowingly violated the base limit requirement. Such a presumption will go a long way to prompting both donors and committees to take necessary steps to assuring compliance with FECA's base limits.
In sum, even though limiting FECA, the Supreme Court recognized its legitimate purpose in combatting election-related corruption. Measures should be taken to strengthen the parts of the law that remain. And creative efforts, such as the Fair Elections Now bill, should be pursued to supplement FECA’s anti-corruption purpose.
Sampen served as chief of the Public Interest and Special Litigation Divisions of the Illinois Attorney General's Office. He is currently a partner at Clausen Miller and adjunct professor at Loyola University College of Law. The views expressed herein are his own and not necessarily those of his law firm.