You may remember Alex Law from his progressive congressional campaign for South Jersey's first congressional district in 2016. Blue America endorsed him and we hope that was just the opening act for a long career in politics. Currently Alex is getting ready to graduate from the University of Virginia School of Law, where he's been working on anti-corruption scholarship to memorialize some of the ideas that he thinks are vital for progressive progress. His idea overcomes the thought that reform is impossible without a constitutional amendment due to the ultra-conservative make up of the SupremeCourt. The way to get around that is through the rule making power of Congress, which seems to offer an ability for a simple majority of just one house to fundamentally change campaign finance in America without the other chamber or the president.
-by Alex Law
Real game-changing campaign finance reform is possible. I know, we’ve all be told for years that it isn’t possible until the composition of the Supreme court changes. But, there’s a way to do it that hasn’t been discussed yet. A real way that Republicans would have no ability to block and could only be stopped if conservative Justices went against decades of well-established conservative constitutional precedent. It’s a way that does not require the House and the Senate to work together (so we can’t be held hostage by Republicans in the Senate or Sen. Manchin). It also doesn’t require state legislatures. It only requires a simple majority in the House of Representatives.
First, let’s take a look at the state of campaign finance as it looks under the traditional analysis:
Campaign finance reform is one of the most challenging policy quagmires facing progressives. In Citizens United, the Supreme Court took an intractable stand against sensible campaign finance reform. The conservative majority gave First Amendment speech rights to corporations. They made reasonable limitations on individual and corporate political contributions unconstitutional, while at the same time limiting the ability of regulators to require meaningful transparency as to which donors are giving to which political organizations. Since that case in 2010, progressive reformers have primarily looked at two viable paths to meaningful campaign finance form:
1. convince the court to overturn its decision or
2. seek a constitutional amendment.
Both plans have enormous challenges.
With the election of Donald Trump and the ascension of his three Justices, it seems exceedingly unlikely that the court will be calibrated to consider changing its mind this decade.
As has been the case since 2010, seeking a constitutional amendment, even for an issue with broad support amongst regular citizens, is a tremendous uphill battle. Article V of the Constitution sets out two ways for an amendment to be ratified, one of which has been used for every single amendment passed so far. That method requires a 2/3rd majority in both the Senate and the House plus ratification by 3/4th of the states (38). The other method is for 2/3rd state legislatures to call for a Constitutional convention, which Congress would then be required to call, and any amendments proposed by the convention would have to be ratified by 3/4th of state legislatures or state convention convened for that purpose. Here’s the problem: Republicans (and many elected Democrats, but let’s leave that aside for now) deeply oppose campaign finance reform because they benefit from the system the way it is. Republicans control a majority of state legislatures. Both processes require a super-majority of legislatures. For that reason, it seems exceedingly unlikely a campaign finance reform amendment will be passed this decade.
Pretty doom and gloom, right? The traditional analysis says there are two paths and both paths are blocked. It’s extremely convenient for most political thought leaders to take their ball and go home. Republicans are happy with the result because billions of Koch brother, Wall Street, big pharma, NRA, defense contractor, and big oil money keeps flowing. Many elected Democrats (certainly not all) are happy because they get to continue to say they are for campaign finance reform, but don’t actually have to do anything about it while continuing to benefit from the same evil donors that the Republicans benefit from.
The good news is there’s another path.
When I ran for Congress, I ran against one of the most corrupt Democratic machines in the country. They utilized every inch of the Citizens United doctrine against me: dark money Super-PACs, corporate donors, and morally reprehensible consultants that feed off of it all. In a sleepy Democratic primary in South Jersey, my opponent’s campaign spent millions and his brother’s various PACs spent anywhere from hundreds of thousands to millions (part of the problem is just how hard it is to track). Not only did they spend all that money directly, but untold sums also went to both President Obama’s presidential library to secure an indorsement and a letter from him (something I’ve rarely if ever seen him do in a Democratic Congressional primary) and Senator Cory Booker’s various fundraising efforts to get a letter and in person campaigning for my opponent and against me. In the face of this onslaught, we had to get smart. We searched for efficiencies and invented new technology to drive down our cost per vote. We knocked on over a hundred thousand doors and made many times that many phone calls. In the end, we had one of the lowest costs per vote in a competitive primary in the last thirty years ($2.72; the average for contested primaries is typically between $75-$150 per vote…gross right?). For what it’s worth, we got more votes than had ever been needed to win (~24,000) which was almost 10,000 more than AOC got in the same year, in a similar race, in a similar sized district, except we had substantially less money. But, I didn’t win.
Ok, why do I mention this story? Two reasons.
First, to show that no matter how smart you are with money and how passionate your volunteers are, it is exceedingly difficult to win elections when the other side takes advantage of the corporate dark money that is possible without campaign finance reform. Can it be done? Yes. But we just cannot rely on it.
Second, to introduce the way I think about problems. I try to get as efficient as possible. When I think about policy solutions, I try to imagine path with the best possible chance of success, even if it’s something that hasn’t been tried before.
To me, the traditional analysis around campaign finance reform is set up to fail. I refuse to accept that a nation of over 300,000,000 people can be held hostage by 6 old people in robes or a dozen groups of Republicans in states that combined are smaller than California. I was determined to find a better way, and I think I’ve found it.
A New Path for Campaign Finance:
When I started to think about campaign finance reform, I thought about what really matters and what is (even if important) fluff.
Campaign finance reform is about preventing certain people, companies, and groups from having an undemocratic level of control in our republic. This really matters.
They achieve this by using their substantial wealth to give advantages for their preferred candidates in elections. This is fluff but this is where the traditional analysis focuses. I will explain why it is fluff in just a second.
Those elected officials then vote on laws, giving undue consideration to the interests of their donors rather than the people they represent. This really matters.
When I broke it down like that, I realized we had been focusing on the wrong piece. We should primarily care about what the elected officials can actually do before we should care about which people are able to get elected. While both are important, the order matters because even if corporate sycophants are elected, if they have no law-making power, then the dark money will have been wasted and will quickly dry up.
So, the question became, does being elected to Congress mean someone has guaranteed lawmaking power? They do not. The Senate and the House of Representatives have constitutional lawmaking power. Members of those bodies do not. Congressional rules determine committees, procedures, and most importantly, which members are qualified to vote. Countless times in our nation’s history certain members of Congress were not permitted to vote because they had a conflict of interest or some other issue that prevented them from being able to vote. Something as simple as requiring members to be physically present to vote disenfranchises members who are unable to be there in person. For decades, the Speaker of the House was only allowed to vote if there was a tie. Ethical conflicts of interest have prevented dozens of members from voting. Sometimes it was voluntary. Sometimes it wasn’t. The point is that Congressional rules have routinely prevented certain members of Congress from voting on certain bills when appropriate.
You might be thinking: who gets to say when it’s appropriate? The Supreme Court and the Constitution clearly agree. Each house of Congress gets to set its own rules and procedures. Art. I §5 cl. 2 of the Constitution says, “Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member.”
From this humble clause, the House of Representatives could create a robust new campaign finance reform regime outside the purview of Citizens United that would not require cooperation from the Senate, the White House, or state legislatures.
Let’s imagine the House passed two rules that said something like:
“Any Member with a conflict of interest with respect to a matter up for a vote must recuse themselves from voting.”
“Any Member that has received over $250,000 in the last two election cycles from any one industry and the donations from that industry average more than $50 are considered to have a conflict of interest for any matter related to that industry.”
Congress has the power to do that with a simple majority. It falls outside of Citizens United because it does not dictate whether those companies or rich people are permitted to give, nor does it tell candidates what money they can accept or how they can spend it. It simply expands the conflict of interest and rule making power Congress has always had, has always utilized, and which has been upheld by the Supreme Court for centuries.
If Congress were to pass a bill like this, all those Congressmen and Congresswomen that big oil or the NRA have bought would suddenly no longer be able to vote on bills about fossil fuel subsidies or sensible gun control. Instantly, the corporate monsters that have controlled our republic would have no power and no incentive to continue donating.
Now you might be thinking: how would this be enforced? What is the exact procedure by which this happens? Are you sure this is Constitutional?
For in depth answers to those questions, you can read my much longer, heavily cited, peer reviewed law journal piece on the subject: Congress Holds All the Cards by Alex Law. It is available for free at that link.
You may also be thinking: would Nancy Pelosi ever do this?
I think it’s fair to think the answer to that is no. She and many of the Democrats in charge have gotten there by being excellent big dollar fundraisers. But, changing her mind or making the next Speaker of the House someone who would be inclined to make a big move like this is a much lower bar than either path offered by the traditional analysis.
One final question worth addressing: wouldn’t the new conservative majority find a way to deem this unconstitutional even if Congress does it and even if it goes against things they have said in the past?
I think it’s also fair to think they will try and that some of them would find this to be unconstitutional even without good reason. But the burden is no longer on Democrats to somehow convince the court to overturn precedent as it would be for Citizens United challenges. The burden would be on republicans to overturn precedent. I don’t think the Republicans would take this sitting down, but if we are looking at the most efficient, most likely to succeed path to serious campaign finance reform sometime this decade then this is the best path.
I strongly encourage you to write to your representative to introduce them to this idea. When I wrote my paper, no one had ever written about this idea before so it’s totally new. There will be skepticism at first, but we just new a few powerful voices to really look into it and we could have a brand new day in America politics.
Thanks for reading, wear your mask if you must go out, stay well, and keep resisting!