A Supreme Court already hostile to campaign-finance restrictions looks poised to careen even further to the right if Judge Brett Kavanaugh is confirmed, say election law experts who warn that contribution limits may soon be a thing of the past.
Kavanaugh not only “absolutely” embraces the money-is-speech doctrine that defined the Roberts Court’s Citizens United v. FEC ruling, which has unleashed secret, unregulated campaign cash. Kavanaugh is also skeptical of disclosure rules and the ban on foreign money, which even this conservative high court has consistently upheld. And he has branded contribution limits, one of the few remaining pillars of the campaign-finance system, as constitutionally suspect, recently disclosed emails show.
Kavanaugh critics, who object both to the haste and secrecy surrounding his confirmation, and to his stance on not just campaign financing but on issues ranging from abortion rights to gun safety and executive privilege, still harbor hopes that they can block him from the court. But with or without Kavanaugh, the Supreme Court under Roberts has become so hostile to campaign-finance regulation, and so narrow in its definition of corruption, that opponents of runaway political spending are being forced to rethink their approach to a solution.
Instead of attempting to block big money from flowing—an arguably losing battle given unwavering GOP opposition and the Supreme Court’s far-right tilt—a growing number of clean-election advocates are promoting small-dollar contributions and public financing instead. This “floors not ceilings” approach sidesteps the First Amendment concerns that campaign-finance limits invariably trigger on the right, and blunts the influence of mega-donors by rounding up large sums in smaller increments from average citizens.
Public financing, in particular, is taking off at the local level as successful experiments in places like New York City and Seattle draw notice in cities around the country. Congress long ago gave up on the presidential public financing system enacted with the post-Watergate reforms of the 1970s, and public campaign funding is regarded as a political non-starter inside the Beltway. But more than a dozen states and localities offer some form of public financing for candidates, and the list is growing.
New York City’s public financing system, which offers a 6-to-1 match for low-dollar contributions, was the model for a Suffolk County, New York, public financing program that was approved last year and will take effect in 2021. Seattle launched a “democracy vouchers” program in 2017 that gives every city voter four $25 vouchers to dole out to candidates as they see fit. Now Albuquerque, New Mexico, and Austin, Texas, are eyeing similar public voucher programs.
In Maryland, where Howard and Montgomery counties already offer public financing, Baltimore has approved plans to place a public financing initiative on the ballot this fall. A Denver initiative slated for the ballot this fall would match every low-dollar ($50 or less) donation that a candidate raises with nine times that amount in public funding—making a $10 contribution equivalent to $100. Public financing has also been approved in Berkeley, California, and Portland, Oregon, and is under consideration in Philadelphia.
“It’s about empowering voters from the bottom up; it’s not about shutting certain aspects of the campaign-finance system down,” says Stephen Spaulding, chief of strategy at Common Cause, which has helped spearhead public financing initiatives through its affiliates in New Mexico and elsewhere. Such programs give candidates an incentive to get out and talk to average citizens instead of spending all their time with big donors, say proponents.
The public financing trend coincides with a burst in low-dollar campaign contributions that reflects both the ease of one-click, online fundraising, and the grassroots energy that is fueling Democratic candidates this year. The progressive online fundraising platform ActBlue has collected more than $1 billion for some 13,000 Democratic causes and candidates in this election, with the average donation topping out at $34. ActBlue projects $1.5 billion in receipts this election, twice what it raised in the 2016 cycle.
Senate Democrat Tammy Baldwin, of Wisconsin, raised $4.4 million in the second quarter of this year, thanks in part to 57,000 online donors who gave an average of $25 apiece. Democrats in 28 competitive House and five Senate contests have raised some $35 million in contributions of $200 or less, a Wall Street Journal analysis found, about four times what their GOP opponents collected from low-dollar donors.
Republicans, of course, are benefiting from tens of millions in outside spending, much of it undisclosed, by groups like the U.S. Chamber of Commerce and America First Policies, an offshoot of the Trump campaign. Nearly 80 percent of the undisclosed money spent on the election thus far comes from conservative groups, according to the Center for Responsive Politics.
But the best way to beat big money, in the end, may be to match it with small money. Low-dollar donors have a way of turning into voters, and for Democrats, small contributions also bolster the anti-corruption message that is increasingly central to their campaign to retake Congress. For clean-money advocates, low-dollar “democracy” vouchers and matching public funds are not only increasingly popular with voters—they may be the only campaign-finance rules change that will pass constitutional muster, particularly if Kavanaugh is confirmed to the Supreme Court.
This article has been updated.