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The Participation Interest GW Law Faculty Publications & Other Works Faculty Scholarship 2012 The Participation Interest Spencer A. Overton George Washington University Law School, [email protected] Follow this and additional works at: https://scholarship.law.gwu.edu/faculty_publications Part of the Law Commons Recommended Citation 100 Geo. L. J. 1259-1310 (2012) This Article is brought to you for free and open access by the Faculty Scholarship at Scholarly Commons. It has been accepted for inclusion in GW Law Faculty Publications & Other Works by an authorized administrator of Scholarly Commons. For more information, please contact [email protected]. The Participation Interest SPENCER OVERTON* Lack of participation is a primary problem with money in politics. Relatively few people make political contributions—less than one-half of one percent of the population provides the bulk of the money that politicians collect from individual contributors. This Article introduces and details the state’s interest in expanding citizen participation in financing politics. Rather than focus solely on pushing an incomplete anticorruption framework to restrict special interest influence, reformers should also embrace a strategy of giving more people influence. Reformers should accept that money produces speech and that “spe- cial interests” in the form of grassroots organizations are a democratic good that can stimulate participation. Increased participation makes government more accountable and responsive, and citizens who give even small financial contributions are more likely to become vested and participate in nonfinancial ways. The Article also presents policies that allow federal, state, and local legislatures to advance the state’s interest in participation. Such policies include tax credits, donor matching funds, exemptions from disclosure for donors of $500 or less, and relaxed restrictions on political action committees (PACs) and parties funded by small donors. TABLE OF CONTENTS INTRODUCTION .......................................... 1260 I. PREVENTION OF CORRUPTION ............................ 1264 II. THE PARTICIPATION INTEREST ............................ 1273 A. THE PARTICIPATION PRINCIPLE ......................... 1273 B. PARTICIPATION IS BROADER THAN ANTICORRUPTION .......... 1278 C. PARTICIPATION IS NOT “EQUALITY” ..................... 1282 * Professor of Law, The George Washington University Law School. © 2012, Spencer Overton. Michael Abramowicz, Mark Alexander, Scott Ammons, Ed Bender, Richard Briffault, Anupam Chander, Guy Charles, Adam Cox, Kareem Crayton, David Donnelly, Roger Fairfax, Ned Foley, David Fontana, Heather Gerken, Steve Gold, Lani Guinier, Rick Hasen, Sam Issacharoff, Michael Kang, Ellen Katz, Marty Lederman, Larry Lessig, Dan Lowenstein, Chip Lupu, Michael Malbin, Alan Morrison, Larry Noble, Nick Nyhart, Dan Ortiz, Nate Persily, Rick Pildes, Mark Schmitt, Roy Schotland, Dan Solove, Peter Smith, Dan Tokaji, Zephyr Teachout, Amanda Tyler, Zachary Warren, and Fane Wolfer provided comments that helped develop my thinking. Michael Malbin, Peter Brusoe, and Wesley Joe at the Campaign Finance Institute graciously shared data about contributors, literature, and other essential insights in several exchanges. Rachel Applestein, Ben Hazelwood, Josh Jowers, Ben Kapnik, and Sarah Podmaniczky provided invaluable research assistance. 1259 1260THE GEORGETOWN LAW JOURNAL [Vol. 100:1259 III. THE WAY FORWARD .................................. 1288 A. UNDERSTANDING CHALLENGES TO PARTICIPATION ........... 1289 B. LEGISLATIVE PROPOSALS THAT PROMOTE PARTICIPATION ....... 1294 1. Tax Credits for Campaign Contributions ............ 1295 2. Donor Matching Funds ......................... 1296 3. Small-Donor PACs ........................... 1298 4. Relaxed Coordination Rules ..................... 1299 5. Exempt Contributions Under $500 From Disclosure .... 1300 C. POLICY ANALYSIS OF LEGISLATIVE PROPOSALS .............. 1301 D. THE CONSTITUTIONAL STATUS OF LEGISLATIVE PROPOSALS ...... 1306 1. Multiple Matching Funds and Tax Credits Are Constitutional ............................... 1306 2. Small-Donor PACs and Relaxed Coordination Rules for Small Donors Are Constitutional ................. 1308 CONCLUSION ............................................ 1310 INTRODUCTION This is a critical moment for campaign finance. As a result of the U.S. Supreme Court’s decision in Citizens United v. Federal Election Commission,1 an increasing percentage of American politics is funded by a handful of wealthy individuals and corporations who funnel multimillion-dollar contributions to outside groups. Candidates routinely opt out of the presidential public financing system, and the Federal Election Commission is deadlocked. Technology is posing new challenges and new opportunities, and the Roberts Court stands poised to strike down any new restrictive reforms. With so much in flux, federal, state, and local lawmakers are looking for guidance. Unfortunately, few fresh answers are coming from the traditional campaign finance reformers, who have largely continued down the familiar path of ferreting out special interest influence.2 Reformers have pushed for more exten- sive disclosure of corporate spending as well as restrictions on spending by a few politically vulnerable targets, such as foreign corporations and oil compa- nies. These proposals, however, fail to address squarely the core problem of lack of participation. This Article introduces and details the state’s interest in having as many 1. 130 S. Ct. 876 (2010). 2. For a discussion of different strands of reformers, see infra note 55. 2012]THE PARTICIPATION INTEREST 1261 citizens as possible participate in financing politics. Relatively few people make political contributions. While 64% of eligible Americans voted in the November 2008 election, less than 0.5% are responsible for the bulk of the money that politicians collect from individual contributors.3 Just as civic norms encourage all citizens to vote, a key goal of campaign finance should be to encourage everyone to make a financial contribution to a political candidate or a cause of his or her choice. The bulk of campaign funds should come from a broader cross section of the population. Ironically, Citizens United itself contains language that gives reformers the fundamental tools they need to rise out of the ashes and introduce a new generation of campaign finance reform that emphasizes participation. In the case, the Supreme Court recognized that “[f]avoritism and influence are not... avoidable in representative politics,” that “[d]emocracy is premised on respon- siveness,”4 and that money is an important tool to “hold officials accountable to the people.”5 Reformers should accept that money produces speech and that “special interests” in the form of grassroots organizations are a democratic good that can mobilize people. Rather than continue to try to purge special interest influence through more restrictions likely to be struck down by the Court, reformers should embrace what will surely be a more effective strategy—namely, giving more people influence. Increased participation makes government more accountable and responsive to the people as a whole, and citizens who give even small financial contributions are more likely to become vested and participate in nonfinancial ways, such as staffing phone banks or distributing literature to neighbors. Indeed, increased participation helps prevent corruption by diversifying a candi- date’s support so that she is less beholden to a narrow group of large donors. Although contribution limits that curb corruption continue to be important, reformers need to spend less energy on “getting big money out of campaigns” and more on “getting the people back in” to those very same campaigns.6 Although this Article recognizes the limitations of legal restrictions in cam- paign finance, it also asserts that law plays an important role in promoting participation. Indeed, whereas government-compelled participation would be 3. See infra notes 147–49. While democratic participation involves contributing money, volunteering time, voting, and various other activities, see infra notes 74–78 and accompanying text, this Article focuses on the state’s interest in advancing financial participation in politics. This topic warrants attention because it has been given inadequate attention by most campaign finance reformers as giving a modest contribution is often easier than voting, yet lags behind voting in the raw number of those who participate, and because the field of campaign finance is undergoing drastic change and is in need of direction. 4. Citizens United, 130 S. Ct. at 910 (quoting McConnell v. FEC, 540 U.S. 93, 297 (2003) (Kennedy, J., concurring in part and dissenting in part)) (internal quotation marks omitted). 5. Id. at 898. Because of the importance of participation in holding government accountable to citizens, this Article focuses on increasing widespread participation by citizens rather than on increas- ing candidate participation (an objective of some traditional public financing systems). 6. David Donnelly, We Need More Citizen Participation,BOSTON REV. (Sept./Oct. 2010), http:// www.bostonreview.net/BR35.5/donnelly.php (internal quotation marks omitted). 1262THE GEORGETOWN LAW JOURNAL [Vol. 100:1259 inappropriate, identifying barriers to participation and devising tools to over- come these barriers is a proper function of law. Although many opponents of campaign finance reform rally against spending restrictions that keep citizens from participating,
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