League of Women Voters Money in Politics: Developing a Common Understanding of the Issues A Primer for Engagement of League Members and Fellow Citizens - 2014 Money in Politics: Developing a Common Understanding of the Issues A Primer for Engagement of League Members and Fellow Citizens I. Introduction ............................................................................................................... 3 II. Using this Presentation and Discussion Guide ........................................................... 4 III. Overview of the Issues ............................................................................................... 5 IV. A Brief History of Campaign Finance Reform .......................................................... 7 V. Money in Politics: The Current Scene...................................................................... 10 Debate within the legal establishment .................................................................................. 10 Remaining Federal contribution limits ................................................................................. 11 The experience of recent elections ........................................................................................ 11 VI. LWVUS positions and efforts related to CFR ......................................................... 12 VII. Approaches for Addressing the Issues and Problems .............................................. 14 Approaches not requiring Constitutional change ................................................................. 14 Proposals for Constitutional amendments ............................................................................ 16 Pros and cons for the two main approaches ......................................................................... 17 VIII. Some Discussion Starting Points ............................................................................. 18 IX. Conclusion ............................................................................................................... 19 Resources .......................................................................................................................... 21 Appendix A. Definitions ................................................................................................... 25 Appendix B. Bill of Rights ……………………………………………………………...28 Appendix C. The First Amendment …………………………………………………….29 Appendix D. Timeline of Significant Congressioal and Acts and Supreme Court Decisions ………………………………………………………………………………...33 Appendix E: Regulations pertaining to tax-exempt organizations ................................... 36 Appendix F. Provisions of the American Anti-Corruption Act ........................................ 38 Appendix G: Review of Constitutional Amendments Proposed in Response to Citizens United ................................................................................................................................ 40 Appendix H: Provisions in Amendments before 113th Congress ..................................... 45 Appendix I. State Information .......................................................................................... 47 Disclaimer: The information presented in this paper is background information. It does not necessarily imply that the LWVUS supports or opposes any particular concept or piece of legislation. For information about where the LWVUS stands on a particular piece of legislation, please go to LWVUS.org or contact the LWVUS at 202-429-1965. If you are a League member and are approached to take a position in the name of the League and/or to advocate in the name of the League, contact your state League or LWVUS before proceeding. p. 2 (May, 2014) I. Introduction “Money in politics affects and afflicts every issue that the League works on and cares so much about. We all know that as long as money flows into politics at the unchecked rate that it does, the voice of the public will be drowned out by the special interests. For this reason, the LWV has focused on this as far back as the 1970’s when the Watergate scandal demonstrated what the effects of unchecked money and quid pro quo practices have done to undermine governance for the public good.” Judy Duffy, Advocacy Committee Chair, report to Convention 2012 “At bottom, the Court's opinion is thus a rejection of the common sense of the American people, who have recognized a need to prevent corporations from undermining self-government since the founding, and who have fought against the distinctive corrupting potential of corporate electioneering since the days of Theodore Roosevelt. It is a strange time to repudiate that common sense. While American democracy is imperfect, few outside the majority of this Court would have thought its flaws included a dearth of corporate money in politics.” Justice John Paul Stevens, dissenting opinion in the Supreme Court decision in Citizens United v. Federal Election Commission, 2010 “This political system is awash in money… The effect of all this, unfortunately, leads to the cynicism and the frustration of the American people and their lack of confidence in the system. It's got to change...” Senator John McCain, David Letterman show, Jan. 12, 2012 Whatever else it may or may not have done, the Supreme Court's 2010 decision in the case of Citizens United v. Federal Election Commission galvanized the campaign finance reform (CFR) movement and aroused huge numbers of citizens who had never been involved in that movement before. New civic organizations sprang up across the country, proposals for Constitutional amendments proliferated, and action was demanded from regulators, legislators, courts and even corporate boards of directors. The League of Women Voters has been an active participant in CFR for over four decades. It formally adopted a Campaign Finance position in 1974. It continually monitors, and when appropriate, advocates for campaign finance reform in legislative, judicial and regulatory forums at the federal and state levels. It lobbied strongly for the passage of the Bipartisan Campaign Reform Act, cosponsored by Senators McCain and Feingold and passed in 2002. It calls public attention to the issues through regular press releases and op ed pieces, and it works in coalition with other organizations. But the League, no less than the movement at large, faces challenges in the post-Citizens United landscape. The two-track strategy described in its biennial publication Impact on Issues (“achieve incremental reforms where possible in the short term, and build support for public financing as the best long-term solution”) seems to be running up against new barriers erected by the Supreme Court at every turn, although the League continues to advocate strongly within the remaining Constitutional arena. A resolution passed at the 2012 LWVUS Convention urged the League to enlarge that arena by considering other means of challenging the Supreme Court's interpretations, including amending the Constitution. p. 3 (May, 2014) In January 2012, LWVUS established a new Campaign Finance Task Force (CFTF). In her report to the 2012 Convention, Judy Duffy described its mission as follows: With the Supreme Court busy undercutting protections against corruption in our political system, the task force is looking at the variety of steps the League at all levels can take, both over the short term and the long term, to address the situation. http://www.lwv.org/content/advocacy-report-june-2012 The LWVUS Board charged the task force with researching issues related to the Citizens United decision, including possible Constitutional amendments. A review of the Constitutional amendments before the 112th Congress, then in session, was prepared. (See Appendix G of this Primer.) After the 2012 Convention, the task force continued its work, completing an informational paper on the history of LWV action on campaign finance and what Leagues can do now, available at http://www.lwv.org/content/lwv-us- action-campaign-finance. The next task of the CFTF was to prepare a money-in-politics discussion guide to be used by Leagues across the country for members and for the public. A tentative outline and a call for materials were published in early 2013. This Primer is the result of work by members of the CFTF as well as other League members active on state CFR committees. II. Using this Presentation and Discussion Guide This Primer has been written for the use of League members as part of informing themselves, their Leagues and the general public. It is not a League study guide, and the questions that are included are intended only to provide starting points for discussion. They are in no sense “consensus questions” like those in a formal League study. The goal, as stated in the title, is to develop a common understanding of the issues. Such an understanding may eventually form the basis for a League study designed to reach consensus on the solutions it wishes to pursue. In the following sections of this text, we pull together the background that is needed to understand how campaign finance in the United States has evolved into the dysfunctional system now on display, as well as the many remedies that have been proposed. While the League's CFR history is very important to the users of this Primer, the discussion of proposed remedies must go beyond the League's past and current work if we are to have any hope of arriving at a “common understanding.” Section III is a non-legalistic formulation of the basic issues. Since campaigning