Public cynicism about money in politics has become so reflexive and deeply ingrained that the stock refrain from voters, candidates, political experts, election lawyers, and even many reform advocates is “Nothing will ever change.”
Public financing? It will never happen. Disclosure for secretive political nonprofits? Senate Majority Leader Mitch McConnell will never allow it. A reversal of the Supreme Court’s Citizens United v. Federal Election Commission ruling? Pie in the sky. And don’t even dream of expecting the Internal Revenue Service or the Federal Election Commission to actually enforce the rules. Both agencies have decisively demonstrated their utter impotence to police campaign violations.
But what if the 2016 election created a surprise opening for democracy advocates? Sky-high voter outrage over campaign financing has already made attacks on Wall Street special interests a standard applause line for candidates on both sides of the aisle. For Donald Trump and Bernie Sanders, anti-big-money rhetoric has become a centerpiece of their campaigns. Trump and the other GOP presidential contenders get low marks from the reform community for failing to propose any actual campaign-finance changes. If a Republican wins the White House this fall, big money opponents will be more aggrieved and militant than ever.
But if a Democrat wins, whether it’s Sanders or Hillary Clinton, advocates of campaign-finance and other election law changes could face the opportunity of a generation. Even if Republicans retain control of Congress, a Democratic president could impose multiple fixes through executive actions, including full disclosure for federal contractors, a better-run FEC, and more meaningful White House ethics rules.
A Democratic president would also choose the successor to the late Supreme Court Justice Antonin Scalia (unless Senate Republicans relent and permit President Obama to do so), meaning that a reconstituted high court may actually uphold a now-inevitable constitutional challenge to Citizens United. If Democrats recapture one or more chambers of Congress—as could happen if Trump turns out to be the GOP nominee—a long list of ethics, lobbying, voting, redistricting and campaign reforms might actually be within reach.
All that suggests that it’s not too early for reform advocates to start drawing up their wish lists, and to pose the question: What should a progressive democracy agenda look like?
An obvious place to start is with proposals that already enjoy broad bipartisan agreement. No matter who occupies the White House and controls Capitol Hill, meaningful policy changes won’t pass without bipartisan support. (Even in a best-case scenario for Democrats, neither party can expect to control Congress by more than a narrow margin.) That puts a few common-sense campaign-finance rules changes at the top of the list. These include:
Disclosure. A New York Times/CBS poll found last year that three quarters of self-identified GOP respondents said they support requiring more disclosure from outside-spending groups. Even the conservative Supreme Court majority in place before Scalia’s death upheld disclosure laws as constitutional. The conservative campaign-reform group Take Back Our Republic has endorsed full disclosure for political organizations that spend enough “to truly influence elections.” In 2010, the pro-transparency DISCLOSE Act passed the House and fell just one vote shy of passing the Senate. That bill, still pending, could be buoyed by a state-based disclosure movement that has prompted several legislatures to mull reforms that shed more light on political spending. GOP leaders who cast disclosure as a form of political intimidation are increasingly out of step with their own voters on this issue. Disclosure is the obvious starting point of any reforms.
Public Resources. Whether in the form of tax credits, tax deductions, or federal matching funds for low-dollar contributions, proposals to inject some form of public resources into elections enjoy bipartisan traction. Conservatives at Take Back Our Republic suggest a tax credit of up to $100 for political donations, noting that federal law permitted deductions for low-dollar contributions from 1972 to 1986. Brookings Institution Senior Fellow Jonathan Rauch and University of Massachusetts Amherst political scientist Ray La Raja have proposed tax deductions for contributions to cash-strapped state parties. House Democrat John Sarbanes, of Maryland, has introduced legislation that would combine a $25 refundable tax credit with a six-to-one federal match for donations to congressional candidates of $150 or less. A smart plan might combine deductions with matching funds for low-dollar contributions to both candidates and state parties. Republicans have gotten a lot of mileage out of their mantra that public financing is “welfare for politicians.” But it’s a talking point that’s starting to sound stale.
Higher Contribution Limits. Many good government advocates will balk at the notion that contribution limits should be raised. After all, some might argue, isn’t there already too much big money in politics? The problem is that much of the unregulated money sloshing through the system is being laundered through non-disclosing tax-exempt groups and super PACs that answer to consultants and not candidates or parties. Modestly relaxing the contribution limits imposed on candidates, parties, and particularly on state parties would reward those political actors who publicly report their activities and answer most directly to voters. Higher contribution limits also give Democrats an important bargaining chip to win over GOP support for campaign-finance legislation.
Better Enforcement. When a federal inspector general faulted the IRS in 2013 for improperly targeting Tea Party and other groups seeking tax exemptions, Treasury officials essentially ordered the tax agency to clear up its hazy and confusing regulations for political activity by tax-exempt groups. The IRS has failed to follow through, however, and even went so far recently as to grant exemption to Crossroads GPS, a GOP nonprofit that barely disguises its mostly political mandate. New rules must be crafted with care to ensure that they don’t tread on legitimate advocacy and lobbying. But it’s time install a new IRS commissioner who is up to the challenge. New commissioners are also long overdue at the FEC, which is yet again the target of legislation to overhaul the agency.
Depending on this election’s outcome, a long list of other democracy reforms could also be on the table, from voting rights legislation to redistricting changes. If their moment arrives, reform advocates should proceed step-by-step to avoid the risk that a single, over-ambitious bill collapses of its own weight. Today, the public consensus remains that nothing will ever happen. In a surprisingly short while however, the impossible may become the inevitable.