We’ve looked at the way that our present system of campaign finance results in our being fleeced by businesses that use laws and regulations to protect them from competition and from lawsuits. Think about the repeal of legislation that regulated the financial services industry, or the NRA which got legislation to prevent funding for studies of gun violence, the companies that blocked state laws defining duties in their industries, the loosening of federal antitrust law, or a plethora of tax breaks. All of that was facilitated by grateful lawmakers, grateful for campaign help, contributions or expenditures, which made their elections or reelections possible
We’ve also looked at restoring limitations or prohibitions on those injections of money into politics, and the complexity of reinstating limitations without spilling over and damaging what should be protected speech, press and association.
There is another approach that doesn’t threaten the press or public interest associations and doesn’t hand judges or anyone else malleable discretion to decide who can and cannot speak and how much. The alternative is to provide the funds, either by matching small donations as is done in New York City or allocating public funds for campaigns to those candidates who agree not to raise their own funds.
Public funds relieve candidates from dependence on large donors. Matching small donations reconnects candidates to small donors gathered in house parties, barbeques and similar events. Instead of spending their time courting major donors, candidates seeking matching funds would have to spend time with their constituents – what a quaint concept!
There are many programs using matching funds in place now in states like
Arizona, Connecticut, Delaware, Florida, Maine, Maryland, Massachusetts, Michigan, Minnesota, New Mexico, North Carolina, Vermont, and West Virginia and cities like New York and Los Angeles. Some states matched large expenditures by opponents before the Court rejected that. New York City provides $6 for each $1 contributed in small amounts, resulting in the vast majority of funds deriving from small donations. The match makes each small donor that much more valuable to the candidate. And the formula can be designed to match inflation so that the majority of candidates keep choosing the public matching system.
The research so far reveals that matching programs increase candidate efforts to reach out to constituents, and minimize the role of large donations, although plan details create significant differences in effectiveness.
The Court long ago agreed that public funds can come with strings – if a candidate takes public funds, the candidate may have to agree to an expenditure limit or a restriction on the donations it can accept.
The public funding approach doesn’t create the major problems, distinctions and discretion that prohibitions do. Savings to the public can be huge. The cost of American political campaigning is much less than the largesse which politicians can make available to contributors and supporters. That means that we could fully fund American political campaigns for much less than those campaigns cost us in legislation and regulations that bilk us of vast amounts of money. It should be a no-brainer.
Next week, why it hasn’t been.
 Arizona Free Enterprise Fund v. Bennett (2011) and McComish v. Bennett (2011).
Steve Gottlieb is Jay and Ruth Caplan Distinguished Professor of Law at Albany Law School and author of Unfit for Democracy: The Roberts Court and the Breakdown of American Politics. He has served on the Board of the New York Civil Liberties Union, and in the US Peace Corps in Iran. Steve maintains a blog:http://constitutionalismanddemocracy.wordpress.com
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