By: James Duane
This is the time of year when the country is saturated with politics and a little short on policy. Both the Democratic and Republican conventions were criticized for being long on rhetoric and short on policy by those that disagreed with them. Perhaps the debates will be different. Here in the nation’s capital, adjacent to the hotly contested northern Virginia suburbs, the airwaves are filled with attack ads funded by all sides. Congress is on pace to have one of its least productive –in terms of bills passed – sessions since World War II. All in all, it is not the best environment for any real policy to emerge.
In a post I wrote a few months ago about the Democracy Is Strengthened by Casting Light On Spending in Elections (“DISCLOSE”) Act, which is proposed legislation directly related to the current campaign environment, I tried to explain how we arrived in the super PAC era and some of the underlying problems in the campaign finance system. In particular, I drew attention to the DISCLOSE Act as one of the more viable potential “fixes” currently being discussed.
The DISCLOSE Act would require corporations, unions, 501(c)(4) organizations and many other groups to report to the Federal Election Commission within 24 hours of making a campaign expenditure. The bill’s definition of campaign expenditure is expansive enough to force most of the groups making anonymous expenditures to reveal the source of their funds.
So what happened to the DISCLOSE Act? Predictably, given the partisan gridlock in Congress, it seems to have died for this session. On July 12, 2012 the bill’s House of Representatives sponsor Rep. Chris Van Hollen (D-MD) successfully moved to discharge the bill from committee for consideration on the floor, but has not yet gained enough support. Around the same time, Sen. Sheldon Whitehouse (D-RI), the bill’s champion in the Senate, brought his version of the bill to the floor. Despite coming within one vote of success in 2010, the bill failed to receive the 60 votes needed to invoke cloture and cut off debate in order to proceed to a vote. The vote was 51-44 and the bill didn’t receive without the support of a single Republican. Despite many Americans being bombarded by campaign ads full of vicious attacks and funded by persons unknown, the political will to pass this bill seems not to exist.
In a very minor piece of promising news, the local media Nevada – home to a competitive Senate race and presidential swing state – seemed to be paying attention to how its senators voted. Sen. Dean Heller, running for reelection in Nevada, was given a minor rebuke by the Las Vegas Sun for skipping a vote on the transparency bill for a secret campaign event. Sen. Heller did show up the next day to vote “No” with the rest of his caucus on another procedural vote on the bill.
Of course, the DISCLOSE Act would not the cure to all that ails our broken campaign funding system. Ezra Klein of the Washington Post even called it “ultimately a minor piece of legislation.” (http://www.washingtonpost.com/blogs/ezra-klein/wp/2012/07/27/the-disclose-act-wont-fix-campaign-finance/) His criticism of the legislation is that it would not go far enough. Among other things, he argues that the threat of spending massive amounts of money on an election – potentially in exchange for a minor, but financially important vote or regulation change – is equally troubling. (A similar point about the threat of spending is also made in the excellent This American Life episode “Take the Money and Run for Office” on this topic.) Given the criticisms of the limitations of the DISCLOSE Act and the reticence of Congress to act on this legislation, the future of the DISCLOSE Act looks dim.
So what other fixes are out there? The gamut is quite broad. Exemplifying some of the thinking on the left is The Fair Elections Now Act, mentioned in Klein’s piece. That proposed legislation, which appears to have little hope of movement, would offer a drastic alternative to the way elections are financed. According to the bill’s supporters, once a candidate passed a certain threshold of low-dollar donors, the candidate would be eligible to receive matching federal funds and receive discounts on media broadcast rates and vouchers to subsidize media purchases.
On the other hand, Klein also notes a strain of radical libertarian thought which advocates shrinking government until its power is so diminished individuals and corporations would not care enough to seek to influence it as a way to reform campaign finance.
In a more probable vein, several of President Obama’s key advisors have recently made statements to the effect that a Constitutional amendment could be a potential tool to fix the perceived problems. In fact, President Obama himself, in a chat on the popular website Reddit wrote:
“Over the longer term, I think we need to seriously consider mobilizing a constitutional amendment process to overturn Citizens United (assuming the Supreme Court doesn’t revisit it). Even if the amendment process falls short, it can shine a spotlight of the super-PAC phenomenon and help apply pressure for change . . .” (http://www.politico.com/politico44/2012/08/obama-calls-for-constitutional-amendment-to-overturn-133724.html).
Even contained in the President’s statement is an acknowledgement that such a solution is a longshot. And, given that he said it after several key advisors, it is possible he may just be placating supporters who are unhappy with the status quo and anxious for change. It should be noted that the President also called for passage of the DISCLOSE Act in his statement.
With the DISCLOSE Act apparently dead in the water and no other viable pieces of legislation in the pipeline it is a near certainty that nothing will change before the election in November. What remains to be seen is if the Congress feels the need to address the campaign financing situation either in the lame duck session or in January, when new members are sat. If they fail to act, perhaps there will be movement on a Constitutional Amendment. While the Supreme Court has not yet agreed to take any major campaign finance cases in the next term, the high court’s actions will be at least equally important in determining the campaign funding regime moving forward as well.