By Josh Silver
Mar 24, 2013
Elections have become auctions, and nearly every issue is paralyzed by the overwhelming influence of money. But you knew that. The real challenge is how to fix what has become one of our nation's most pressing political challenges.
If you're hoping our leaders will prioritize this issue, you'll be disappointed. Look to the website of President Obama's new advocacy group, Organizing For Action, and corruption is nowhere to be found; despite being ranked second only to jobs in a 2012 Gallop poll. Same goes for the GOP: it's the issue that no one dare utter.
Despite noble efforts, the public interest community has made little headway over the past 40 years. To break that losing streak, it requires that we rethink reform strategies and go big. Really big. And it requires that we replace cynicism about prospects for success with recognition that giving up is tantamount to giving up on the future of our nation. The stakes are that high.
Making sense of a complex problem
Before I propose a fresh reform strategy, here's a simple way to understand the complex field we call "democracy reform." The field breaks down into three areas:
1) Campaign financing and lobbying: how are campaigns financed, how is lobbying regulated, and how is political spending reported (or not).
2) Election administration: who is on the voter rolls and who is not, how are congressional districts drawn, popular vote vs. electoral college. etc.
3) Congressional rules: how does the filibuster work, what are the rules for legislative committees and conferences, are "earmarks" allowed into legislation, etc.
These three outdated and broken pillars of our democracy must be fixed separately because they are each highly complex and very different from each other. Most of the election administration issues are dictated by state, not federal law. And each have a different set of natural and strange bedfellow allies that are critical to a winning political strategy. While all reforms are important, I focus here on campaign finance and lobbying.
Currently, there are two main fronts in this fight: 1) efforts to amend the US Constitution, and 2) to enact legislation. Amendment efforts are largely in response to the Supreme Court's Citizens United decision and subsequent federal court rulings that allow unlimited independent expenditures. Several amendment proposals have been introduced by Democratic members of Congress. An impressive progressive coalition has passed some 182 municipal resolutions, 3 statewide resolutions, and 18 "citizen initiative" resolutions. Progressive public interest organizations leading these efforts differ with each other on amendment language, but most amendments either grant Congress the authority to limit campaign spending (reversing Buckley vs. Valeo, 1976), or affirm that corporations do not enjoy the same free speech rights as people (reversing Citizens United, 2010).
Regardless of the differences between versions, the elephant in the amendment room is that it must be approved by two thirds of the U.S. Congress and ratified by three quarters of the states. This means that just 13 state legislatures could torpedo any amendment proposal. Now consider that there is just one Republican cosponsor of an amendment proposal in Congress (the other handful of proposals have none). 25 state legislatures are fully controlled by the GOP. Another 7 states have one house controlled by Republicans, and 30 states have a GOP governor. This is not to say that all Republicans reject reform and willfully ignore the problem. The GOP is not monolithic and many conservative leaders outside the party structure are open-minded. But that said, winning enough GOP support to ratify a constitutional amendment in 38 states is a long shot by any reasonable measure.
Finally, consider the massive amount of organized money poised to oppose meaningful reform federally and in the states, and you reveal a political strategy that faces massive hurdles that must not be glossed over. Regardless of winability, efforts to amend the constitution are highly compatible with legislative efforts, and help "move the goalposts," making other reform proposals appear more moderate and viable.
Meanwhile, there are several legislative proposals being advocated by members of Congress and public interest groups, and they each address, for the most part, one element of campaign finance, lobbying and/or transparency. All of the legislative proposals currently under debate in Congress would improve the system, but none provide a comprehensive fix. All face long odds due to huge political obstacles and a relatively narrow base of grassroots support.
At the heart of the most transformative legislative proposals is citizen-funded elections. The logic is that if you cannot amend the U.S. constitution, (anytime soon) then superPACs and other "independent expenditures" will continue to pump huge special interest money into elections - and we cannot stop them. What we can do is return fire by flooding elections with small dollar contributions. This dilutes the power of special interest money and increases competition.
There are currently three main citizen-funded legislative proposals being advocated at the federal level. The first is the "Fair Elections" model that has been passed in varying forms in a handful of states since 1996. (I was the campaign manager for the Arizona version that passed in 1998) The federal version of Fair Elections requires that participating candidates raise a set number of "qualifying contributions" under $100 from their constituencies to qualify for a set amount of money to run their campaign. If the candidate is outspent by an opponent, s/he can receive "matching funds."
The problem with this form of citizen funding is that it is overly complex and unpopular with grassroots moderates and conservatives who want money out of politics nearly as much as progressives. The matching fund provision of Fair Elections was struck down by the Supreme Court last summer, and the model requires a large general fund and administrative body to allocate funds and arbitrate. This exposes Fair Elections to highly effective opposition messages like, "this is another liberal, big-government bureaucracy," "your tax dollars will go to crazy candidates who you don't agree with," or "it's welfare for politicians." These are the messages that decimated Fair Elections ballot initiatives in Missouri and Oregon in 2000. While proponents of this model cite positive polls about voter attitudes towards their proposal, they seldom discuss the grim results when negative messages are used. With just 21% of Americans self-identifying as liberal, it is imperative that reformers rally around a model that is both substantive and marketable to everyday Americans left, right and center.
The second prominent citizen-funding proposal is the New York City matching funds model, which is being promoted in Albany by a powerful group of advocates for passage statewide. That system would provide public matching funds to candidates. The Albany proposal would also lower contributions limits for corporations and individuals who do business with the state of New York, and create a new enforcement unit at the State Board of Elections. The benefit of this system is clear: if you give $100 to a candidate, roughly $400 will be matched by a public fund, giving a small donor far greater impact, and dissuading large donors from contributing. The problem with this system is twofold: 1) the matching system leverages the contributions of people who can contribute to elections while failing to enfranchise the large majority of Americans who do not or cannot contribute to elections. And 2) like the Fair Elections model, this model creates a government bureaucracy with most of the same message vulnerabilities seen in the Fair Elections model. These attributes prevented Fair Elections accomplishing their big goal begun in 1996: to pass a series of state-based laws en route to national legislation. That said, matching funds are a worthy blue state strategy even if they don't prove a viable national model.
The third model is the "voucher" or "tax rebate." The federal version of this system provides a $100 voucher each election year for every adult to contribute to the politicians, political parties or PAC's of their choice. It enables everyone to participate in funding elections, and would create a huge influx of small donor contributions without setting up a large government fund. If you want to give $100 of your taxes to politics, go for it. If not, don't. This system is more popular with moderates and conservatives, and far less vulnerable to negative messages associated with the other two models. The most valid criticism of this model is that better-known candidates would be more effective at soliciting voucher money than lesser-knowns.
Too often, this is where the democracy reform debate ends. Pick your favorite version, declare it the end all be all, and get to work. This is where we need to change the play. None of these citizen funding proposals would alone fix the money in politics problem. And alone, none provide the vision and boldness that catalyzes mass movements - the kind that could eventually force politicians to enact real reform.
So what is that bold proposal?
Combine the most viable citizen funding model - vouchers - with a big, bold set of lobbying and transparency laws. Setting aside the occasional scandal, the goal is not rooting out the cartoonish corruption of quid-pro-quo legislation for hire. If only it were so simple. The solution lies in the systematic dismantling of the many ways that big money determines outcomes in politics. This kind of reasoned but comprehensive change is appealing to the political left and right. And it's constitutional, even under the current Supreme Court. A proposal that goes well beyond the myopic range of debate in our corrupt capitol, but is viewed as common sense by a vast majority of Americans.
This is the strategic foundation of Represent.Us, the campaign in support of the American Anti-Corruption Act. The campaign was launched November, 2012 by the organization I run. Along with the voucher proposal, the Act would:
1) Prevent members of congress from soliciting and receiving contributions from any industry or entity they regulate;
2) Prohibit all fundraising during Congressional working hours;
3) Apply the existing $5,000 PAC contribution limit to superPACs based on the fact that they are coordinating with candidates in contradiction of the Court's rationale (this is a potent solution to Citizens United-created spending);
4) Close the revolving door between Capitol Hill and the lobbying industry by extending the waiting period to 5 years for members and their senior staff;
5) Expand the definition of and register all lobbyists to prevent them from skirting the rules;
6) Limit the amount that lobbyists can contribute to $500, instead of the current $2,500;
7) Disclose all contribution "bundling";
8) Strengthen the Federal Election Commission's independence, as well as the congressional ethics enforcement process;
9) Clamp down on 501c organizations' political spending; and 10) make all political spending fully transparent as proposed in the current DISCLOSE Act.
Why must the Act take on so many issues? This strategy recognizes that the influence of money in politics is endemic to our current system of government. We cannot fix this by patching the holes in democracy through which money seeps in. We are already flooded. We have to recognize that the influence of money has changed the way our lawmakers think about what is possible. It shapes institutions, limits expectations, and constrains the options for decision-makers. Real change must come with a comprehensive approach that reconfigures the incentives, the pressures, and the circumstances for public governance to reflect more directly the democratic interests of the people.
A smart policy proposal is only as valuable as the political strategy to pass it. To craft that strategy, we look to Google cofounder Larry Page.
"Page expects his employees to create products and services that are 10 times better than the competition." writes Wired Magazine. "That means he isn't satisfied with discovering a couple of hidden efficiencies or tweaking code to achieve modest gains. Thousand-percent improvement requires rethinking problems entirely, exploring the edges of what's technically possible, and having a lot more fun in the process."
How do we rethink reform entirely? We position reform with visible leadership from the political left and right in order to capitalize on broad grassroots support for reform. We enlist a grassroots movement before going to Congress - made of millions of people conservative and progressive, and orders of magnitude bigger and louder than any democracy reform effort before it. We stop asking and start demanding, by unseating politicians who oppose reform. Politicians (foxes) will not put a lock on the henhouse unless they are forced to. Electoral accountability must be directly linked to supporting or opposing a specific, robust reform proposal such as the Anti-Corruption Act. We frame the issue as a campaign against corruption, not for campaign finance reform or reclaiming democracy.
Next, we explore the edges of what's possible by adopting a fresh, irreverent voice. We focus on pop culture, celebrity, social media, organizing stunts, creativity and emotional multimedia. We engage every issue group fighting K Street by giving them tangible, fun ways to engage their membership on a realistic path to victory. We call out corruption, take down bad guys, and keep organizing until a moment of political opportunity arises. "Only a crisis - actual or perceived - produces real change. When that crisis occurs, the actions that are taken depend on the ideas that are lying around" said Milton Friedman. In all likelihood, this is how we'll win this issue: by making sure that the ideas lying around when the political opportunity arises are bold, broadly supported reforms -- not loophole-ridden half-measures that allows politicians to claim victory while failing to fix the problem.
Winning will be difficult, it will take time, and any successful campaign will provoke ferocious opposition from a broad swath of powerful interests. But democracy cannot and will not survive unless reformers and philanthropists rethink reform completely. We desperately need a new generation of politicians that operate without the assumption that big money is the most important player at the table of governance. That means abandoning cynicism, repetition, and stagnation, creating a new set of strategic assumptions, and going big.
Josh Silver is the director of Represent.Us, a nonpartisan, national campaign to enact sweeping campaign finance, lobbying and transparency reforms.
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