RepairRestoreSafeguard - 10 Myths about Campaign Finance Reform

Myth #1. We need a Constitutional Convention.

The Convention method takes all power over the nature of our government and laws away from the people, the legislatures, the courts and the ordinary Article V process and gives it to the delegates. It’s only worth risking when the country is about to collapse, requiring immediate and total overhaul. It would be drastic overkill now. Reform ideas are being tested at the local and state levels, and submitted to or generated in Congress. Of course, few would be viable or enforceable in court; but without a glut of competing viable proposals, a Convention still isn’t needed.

Myth #2. Transparency would be enough campaign-finance reform.

Most funding comes from large donors. Transparency doesn’t really bother large donors because it's assumed that all large organizations and corporations donate heavily. Articles and even books have named large donors and discussed them in very critical terms. They’re used to it. They may not want people to know how much they spend, but the thought wouldn’t deter them.  Transparency matters, but it’s not enough.

Myth #3. Campaign vouchers would be a worthwhile campaign finance reform.

Campaign vouchers, or rebates, wouldn’t be a gift; the program would be paid for by our taxes. This means the government would in effect require each voter to buy a $50 or $100 voucher that could only be spent supporting a candidate, a political party, or a vendor in the campaign industry. Those who chose not to would be out $50 or $100. And vouchers wouldn't empower the public to regulate campaign spending or standards. Anyone who asks you to support vouchers should disclose any ties to organizations or companies that might stand to gain.

Myth #4. Voluntary or partial public funding works.

Partial or voluntary public funding is easier to pass and uphold in court than sole public funding, but the only thing that can work is shutting private money out of politics entirely.

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Myth #5. We need an amendment to undo Citizens’ United and its fellows.

Congress can address corporate personhood with two statutes. Corporate personhood was established in law by a clerical error that added unintended words to a Supreme Court decision (Santa Clara County v Southern Pacific Railroad Company, 118 US 394, (1886)).

The federal judiciary is governed by rules made or authorized by Congress. The Supreme Court can’t overturn a federal statute governing the judiciary. Congress can first pass a statute preventing anything but authorized text from affecting precedent and voiding all statutes relying on unauthorized text. Then they can pass a statute limiting property to government-granted privileges representing commercial and not personhood interests.

They’d have to include a clause preventing property from exercising any personhood rights granted elsewhere, and one affirming that personhood is individual to prevent end runs around the statute by calling corporations associations of people (this wouldn't affect existing privileges held by associations). A clause voiding previous actions would keep corporations from being grandfathered in.

Loss of personhood won’t disadvantage corporations because legislation can privilege an entity to sign contracts or do anything a person can do that property has a valid need to do. But personhood rights are inalienable and privileges aren't. Other considerations could override them, and they’d be subject to local, state and federal regulation.

Myth #6. Local or state campaign-finance reforms are safe and effective.

States’ and municipalities’ public funding systems can’t make the kinds of change needed to protect elections. For example, only the Constitution can require candidates or spenders to meet ethical standards.

When a legislature establishes a function by statute or ordinance, they have power to change its rules or repeal it. They can mollify the public for the moment then change it later.

State laws are also subject to being changed or repealed by federal ones. Local laws can be changed or repealed by state or federal laws. Only the Constitution can establish public campaign funding beyond courts’ or legislatures’ ability to remove it.

Myth #7. We can’t end privately-financed campaigns without violating freedom of speech.

Public campaign funding can work within the Constitution's allowed regulation of political speech. Several sections of the Constitution affect types of speech. For example, the Commerce Clause impacts commercial speech. Statutes and Supreme Court decisions have developed applied speech doctrine to clarify protections.

Congress can't abridge freedom of speech: keep it in name only but gut it in practice. But because Article I, Section 4’s Electoral clause addresses the time, place and manner of holding elections, Congress may reasonably limit political speech conduct by time, place or manner.

Limiting speech by time, place or manner, controlling expenditures, is the least-restrictive way to regulate political speech. No content is prohibited, all content is supported, but within dollar limits. The question isn't how much impact a message can possibly have but what information the public needs to form reasonably informed opinions. And Amendment I doesn’t grant a license to harass. You have a reasonable right to decide when you have made up your mind. Nor does it assure any speech universal distribution.    

Myth #8. We should let Congress decide how to reform campaign finance.

When Congress drafts campaign finance reform it’s always either ineffective or unenforceable in court because they were elected by private campaign finance. They won’t do better. They can’t. An amendment establishing funding limits and expenditure controls would have to be drafted outside of Congress. And no matter how well administered, government control of funding can advantage incumbents. A Constitutional amendment can control this by prohibiting candidate involvement in funding, requiring contested elections, funding signature drives to correct a disadvantage for challengers, and so on.

Myth #9. We have no way of determining what dollar limits to impose on public campaign funding.

We’ve had enough elections to determine our norm. Total public and private electoral spending has remained within a consistent range of gross domestic product by percentage, in any economy, between 1860 and 2012, averaging between 1/100 and 5/100 of one percent. Knowing this lets us control it in the budget safely, and this range is broad enough to flexibly accommodate other budgetary needs each year.

Myth # 10. Real reform is unachievable.

Two obstacles have made a solution seem impossible:

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  • ·, a nonprofit website, proposes a reform program including statutes and an amendment derived from the Constitution’s existing provisions. By regarding the public’s political functions as a system also including districting and electoral process, we can make the most-needed changes with the least disruption. These processes support each other. Fixing one by itself wouldn't work. The proposal includes a path to passage and ratification.

Most government officers are decent people who want to serve the public fairly. They don’t like being beholden, but being the first to say so is another matter. We can’t accept any measure that’s less than effective and enforceable. Reforms marketed as "small, achievable reform" aren't actually reform measures. Small reforms are just as hard to pass as large ones when government officers don't want to reform at all. Deliberately ineffective or unenforceable reform proposals have passed in municipalities and states.

Getting a resolution into Congress is the first hurdle. The White House petition website lets people petition the President to recommend a measure to Congress. Today’s technology makes it easier to reach Americans who will support it.

Presidents have nothing to do with amendments but elections that turn over administrations have the largest turnout, when a single-issue focus can impact Congress the most. The whole House and a third of the Senate are up for election. We can communicate individually and in groups. Congress doesn’t use petitions but they show the strength of public support. State ballot initiatives, on the other hand, must be addressed in Congress.

The only thing politicians need more than money is public opinion. We can use the media to make sure the public knows the names of candidates in support or opposed, and get endorsements from public figures and from groups working for reform. If enough people support it, amendment-friendly candidates will win or hold enough House seats to pass it. And if we keep it an electoral issue the Senate will follow.

Amendments don’t occur regularly but cyclically, sometimes in clusters. We are at the end of a long era of corruption, the time when reform amendment is made. It isn’t easy but it’s been done 27 (18, anyway) times.