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Ongoing Issues in Campaign Finance Reform: Political Freedom and Recent Supreme Court Rulings
The issue of campaign finance reform comes and goes as a focal point of national attention, and though recent economic events have eclipsed attention to this issue in the past two years, recent changes ought to be carefully noted by the voting public. Over the latter half of the twentieth century, various pieces of legislation have been passed that limit the amount of funds that can be spent endorsing political candidates and have also regulated the release of politically potent media of certain types during election periods. Recent Supreme Court cases, however, have drastically changed the rules of campaign finance.
The McCain-Feingold Bill was finally signed into law in 2002 after languishing in the Senate for years due to Republican filibustering, limiting the funds that candidates could receive and making issue advertising illegal within sixty days of elections and thirty days before primaries (Policy Almanac 2002). Many of the provisions of this legislation have been determined to be unconstitutional either outright or for all practical purposes by recent narrowly decided Supreme Court rulings (Oyez 2010; Hasen 2010; Mencimer 2010). Current campaign finance policy is thus largely non-existent, with contributions and spending on advertisement -- as well as the running of advertisements -- facing few limitations from standing legislative acts (Mencimer 2010; Hasen 2010; Public Citizen 2010).
Two Supreme Court cases stand out as the predominant vehicles by which existing campaign finance and advertising limitations and regulations were eradicated. Citizens United V. The United States federal Election Commission abolished long-standing laws and judicial precedence by essentially agreeing that spending was speech, and thus corporations could donate directly to candidates and issues to whatever extent they desired to do so (Mann 2010; Hasen 2010). Prior to this ruling, Federal Election Commission v. Wisconsin Right to Life, Inc. determined that rules limiting issue advertising were unconstitutional for similar free speech reasons, and even that narrowly avoiding explicit candidacy support or opposition was permissible so long as the ad could not only be construed as endorsing or opposing a particular candidate (Oyez 2010, Brennan 2010). With these rulings, virtually all campaign contribution limits and advertising rules in the country have been abolished.
Reasons for Change
The reasons used to make these drastic changes to campaign financing and advertising rules were ostensibly a preservation of First Amendment rights to free speech (also as applied to the states through the Fourteenth Amendment), though the true motives for both the original groups suing in these cases and the lawyers that argue their cases might have been less idealistic in nature (Hasen 2010; Mencimer 2010; Brennan 2010; Public Citizen 2010). It has been suggested that lawyers involved in these cases are truly protecting the interests of their corporate clients while representing small grass-roots special issue organizations (Mencimer 2010).
Regardless of the intentions of the attorneys involved, the law as they now stand (or more appropriately, as they don't stand) certainly benefit corporation insofar as they increase their ability to donate money to specific candidates and causes. This is dangerous to the average voter because the candidates become increasingly beholden to corporate donors or face their likely removal from office at the next election due to insufficient campaigning capabilities. Campaign finance laws and regulations must be changed -- via Constitutional amendment if necessary -- in order to ensure that candidates and decisions are not bought, but are still truly the result of a free and democratic process in this case, the freedom to spend on political candidates and issues is in conflict with the basic concept of a representative democracy and thus this freedom must be limited to persist in any country claiming this system of government.
There are several options that can be explored as a means of achieving realistic campaign finance reforms that have the desired effect of limiting corporate influence on political issues while at the same time remaining in keeping with existing laws and principles that serve as the foundation of the United States of America. Passing legislation such as the laws that have been passed in the passed but that is in keeping with the latest Supreme Court readings of prior law is one means for achieving change. Laws that limit the use of any public infrastructure, including airwaves and basic communications infrastructure that serves a vital community service, for political purposes could be a way to achieve media limitations without violating current rulings (Oyez 2010).
Another more radical policy that has been suggested is the creation of a public fund for political campaigns limiting the use of private spending and ensuring an even playing ground for all political candidates, thus removing corporations and other large donors from the election cycle entirely (Public Citizen 2010). In order for this policy to stand the test of time, however, it would need to be created via a constitutional amendment, which is far more difficult to pass. Despite the difficulties of passing an amendment, this policy option truly is the best move for the nation, and recent Supreme Court decisions make it clear that an amendment to the United Sates' Constitution will be necessary for any limits on campaign finance to be an assured part of the election process. That is, due to the difficulty in changing an amendment and its automatic primacy of law, reforms expressly spelled out in an amendment will be more likely to survive the decades to come than a simple piece of legislation.
Pros and Cons
The advantages of the above mentioned options are fairly clear. The passage of any legislation that attempts to limit corporate influence in elections can only lead to a more democratic election process (and here it should be stressed that as corporations are not voters, limiting their influence is not undemocratic as has been claimed). Tying public infrastructure into the issue would likely allow campaign finance law to sidestep First Amendment issues and such legislation would be easier passed than an amendment. An amendment, on the other hand, would be more permanent and the creation of a public fund would greatly increase the fairness of elections and campaigns.
There are also downsides to each of these policy-changing options. Limiting the use of public communications infrastructure and those privately owned infrastructure elements that serve vital public service could raise other issues of eminent domain, federal regulation of intrastate commerce, and other complex issues of law. Creating a public fund for running campaigns out of taxpayer money also raises serious questions of legality and will certainly meet with a great deal of opposition. In addition, passing an amendment is incredibly difficult and often takes decades (if not centuries, as in the case of the Twenty-Seventh Amendment, which was first proposed in 1789 and finally ratified in 1992). At the same time, none of these downsides compare to the negative effects of political officers and policy formation being commodities that only those entities with vast quantities of expendable capital can afford.
Any of the policy options discussed above would be a welcome improvement in the area of campaign finance and advertisement regulations and limitations due to the compete lack of these limitations following the Supreme Court rulings in Federal Election Commission v Wisconsin Right to Life and Citizens United v Federal Election Commission (Oyez 2010; Mencimer 2010; Hasen 2010; Brennan 2010; Mann 2010). Of all the different options described above, however, it is recommended that an amendment be proposed and hopefully ratified that would create a pool of taxpayer money (which can include corporate taxes, allowing them to contribute after all) out of which all federal candidates with a requisite showing of legitimacy will receive equal funds with which to finance their campaigns.
This option creates the greatest degree of fairness in campaign spending and also makes the issue one of foundational law subject to far less judicial revision and subject to no direct judicial overturning. It is unlikely that the amendment would be ratified by the support needed in the two Houses of Congress, and therefore ratification via affirmative votes of majorities in three quarters of the states legislatures will be sought. This amendment would make unconstitutional the spending of any money not receive from the public fund for the creation and/or dissemination of politically influential media and would contain contribution limitation to private funds used for other campaign expenses, as well. There is no way that an amendment could be ratified that dealt with all of the complex contingencies of campaign finance law, nor should an amendment attempt to; it is imperative that other laws be allowed to adjust to the times and hammer out specific details as necessary.
There are two areas of rationale for choosing this option. Practically speaking, the amendment as proposed would lead to the most drastic change and in the most lasting manner while still allowing for continued adjustment and refinement over time without a reduction in efficacy. Passing an amendment…[continue]
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