Commentary: Davis’ Campaign Finance Laws Largely Work and National Ones Mostly Backfire

A few years ago there was a proposal to change Davis’ campaign finance limit from $100 to $250.  The argument at that time simply looked at inflation and the passage of time to argue that the $100 limit was unreasonable.

However, that would have been a big mistake.  In Davis, the $100 limit works pretty well on a number of fronts.

Now, do not get me wrong, I know how aggravating it is to attempt to raise money in $100 increments when there are people who are perfectly willing to give a good more than that.  But for the most part, the system does what it was designed to do – it allows people without huge pockets or not backed by monied interests to have a chance to win.

First, it prevents corruption in the system.  It has often been argued that no one is going to be bought for a single $100 contribution.  It is a notion that I agree with to some extent.  However, there are some exceptions.

The most glaring was the firefighters’ ability to use their numbers to usurp the limitations by bundling forty $100 contributions to form a $4000 block.  The firefighters were the only ones to employ this strategy.  Others considered it abhorrent.  The former union president of the police officers told me once he was handed a bag by a former councilmember, and he politely told him to go ask the members himself.

Second, the $100 limitation keeps down the costs of elections.  Now, back in 2008, we were starting to see $50,000 to $75,000 elections.  In the last two cycles, it has adjusted down to $20,000 to $30,000.  At that level, a person can run a credible campaign even at $10,000 to $15,000.

This limitation therefore forces campaigns to be grassroots oriented.  To raise $20,000 in $100 increments means you are collecting contributions from at least 200 different people.

The biggest single story of the 2012 City Council election was the mailer sent by three unions who spent between $5000 and $10,000 each, which should have been in violation of the city’s ordinance which expressly applies to independent expenditure campaigns.

However, perhaps the unwritten story of the 2012 campaign is that Davis’ campaign finance law may be unenforceable under the current law – at least as far as independent expenditure campaigns go.  No one wants to state it directly or out loud.

The city attorney apparently at some point briefed council on the law, but never made a public pronouncement.

It all comes down to the landmark 2010 US Supreme Court case, Citizens United v. Federal Elections Commission, where the Supreme Court struck down the provisions of the McCain-Feingold Act that prohibited corporations and unions from spending money on electioneering communications.

It is highly ironic that the McCain-Feingold Act becomes the seed of the destruction of the good governance it was supposed to usher in.  For years, it was touted as the cure for the rising influence of PACs and soft money.  Instead, it was used to open the flood gates.

This is just another reminder that sometimes the cure is worse than the disease.  Every time we have attempted to fix the campaign finance system, it has actually made things worse.

This is why, despite the fact that I think the Davis campaign finance system largely works, I think those who lament and decry the Citizens United ruling are wrong.

I think the court largely got Citizens United correctly.  Think about what freedom of speech is.  As Michael Kinsley, the commentator, wrote this morning, “Endorsement of a political candidate – even if it’s yourself – is about as central to the 1st Amendment as any category of speech can be.”

The government has the right, at least presently, to restrict campaign contributions, “because a contribution isn’t speech and will not necessarily be spent on speech.”

That too might be problematic, but there is little doubt, “Money spent directly promoting yourself or others for public office is speech, and it can’t be censored.”

So is speech for a corporation different, being that corporations are artificial entities?

“Human beings may decide to organize themselves as a corporation, but they don’t have a constitutional right to exercise their constitutional rights in that form,” Mr. Kinsley posits, but then recognizes the inherent flaw, which argues that if money is not speech, could “the government put a limit on how much a corporation can spend publishing a newspaper?”

The solution to this problem is not to amend the Constitution, which would invariably open the First Amendment up to some sort of reconsideration.  Rather the answer is to make money a voting issue.

Davis points the way toward this.

We did not stop the firefighters from bundling their money by passing a new law.  Instead, we made it a political liability or a perceived political liability for any city council candidate – even ones that were inclined to seek out the support of the firefighters union like Stephen Souza – to accept bundled money.

Mr. Souza took the endorsement of the firefighters but he told me early on he would not accept a bundling of money from the union.

Since we turned the bundling of money to three candidates in 2008 – Stephen Souza, Don Saylor, and Sydney Vergis – into a campaign issue, no one has taken bundled money.

Second, when the unions backed the mailer, the public outcry was such that there was the potential that their tactic could have backfired on them.

Some will argue that the mailer did its intended purpose as Councilmember Sue Greenwald was defeated.  They could even argue that it hit both Ms. Greenwald and Stephen Souza.

However, I would argue otherwise.  The backlash was so severe that to this day Jim Burchill has not make a public comment on it, and the unions actually had more than half of their money left in the bank when they folded up shop after just the one piece.

So it is our belief that if the mailer worked, that was mere coincidence.  Every other aspect of it was a failure – they had to fold up early, they were exposed in the press, and faced a wave of scrutiny and criticism.

Anyone who wants to influence the process in the future will think twice before replicating the action of the building trade unions.

In short, we did not need a new law, public scrutiny and open disclosure were enough.

As Mr. Kinsley writes, “Politicians – who are not, primarily, in it for the money – should have to make the calculation every time they spend a dollar, or look the other way while others spend a dollar on their behalf: Will this money buy me more votes than it will cost me?”

That is one reason we focused so much on the ChamberPAC – we need to scrutinize efforts to influence the process.  That scrutiny needs to focus on whose money it is and what purpose it serves.

For all of the bellyaching over Citizens United, in the age of free media, 24-hour cable, and citizen journalism, there is more than enough monitoring to flip efforts to influence the public and the process on its head.

—David M. Greenwald reporting

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