The five-member conservative majority of the Supreme Court did Democrats and reformers a favor when it released its decision in Citizens United in 2010.  The ruling and its progeny, much reviled by the left, effectively banned limits on political contributions and opened the door to direct corporate financing of campaigns. In doing so, Citizens United inadvertently rescued progressive crusaders from their futile, century-long struggle to control the flow of money into politics.  In the absence of caps on contribution amounts — and with loosened restrictions on sources of political cash — reformers have been forced to look toward innovative legislation at the city and state level. Those local experiments have led to the development of alternative strategies for financing federal elections that focus on large, publicly funded incentives for the solicitation of small donors.  Over time, reformers have often failed to anticipate the consequences of their proposals. For example, the Federal Election Campaign Act of 1971 and the post-Watergate 1974 amendments institutionalized and legally sanctioned political action committees, still the primary vehicle used by special interests to influence candidates today.  Contributions to 2013 elections in New York City and 2014 elections in New York State.  Individuals (residents of the city)  More commonly, corporate and ideological groups — and their lawyers — have found new ways to evade, circumnavigate, undermine and finally gut reform legislation.  Weak to non-existent enforcement by the two key regulatory agencies, the Federal Election Commission and the I.R.S. has, in turn, insured the failure of reforms.  Democratic bills now pending before the House — The Government by the People Act, and the Senate, the Fair Elections Now Act – propose a grant of $6 in public money for every dollar raised from donors of $150 or less. These reform measures follow the pattern of state and local laws that provide a two-tier system of campaign finance.  On one hand, candidates may choose to stay within the privately funded campaign structure, raising money from individuals, political action committees and, where permitted, corporations, local businesses and unions.  On the other hand, candidates may opt into a voluntary system of public financing. (While current congressional proposals do not set limits on total expenditures, earlier limits on overall campaign spending doomed public funding at the presidential level.)  In an interview, Representative John Sarbanes, Democrat of Maryland and lead sponsor of The Government by the People Act, described the current post-Citizens United reform strategy as “the empowerment approach” as opposed to a “rules based approach.”  “The thing about money is that it always seems to find a way around the rules,” Sarbanes said. A “power-based reform” seeks to “match power with power” instead.  Preliminary indications from states and cities that have matched-funding operations, including New York City, suggest that such programs have the potential to significantly alter politics and policy in three different ways.  The first is a shift away from candidate dependence on PACs and other special interest sources and an increase in the amount of money politicians raise from their own constituents.  The New York City Campaign Finance Board compared the sources of contributions to city council and mayoral candidates — most of whom accepted 6-1 taxpayer matching funds in the 2013 election — to the source of contributions to candidates seeking legislative and other New York state offices who had no access to public funding in the 2014 election. The Board found that PACs and other special interest organizations contributed 6 percent of city candidates’ campaign funds compared to 69 percent of state candidates’ funds.  The second effect cited by reformers is the increased likelihood of adoption of legislation generally opposed by business interests, including increases in minimum wage and liberalized family leave policies.  Supporters of public financing point to the enactment in Connecticut of a tax hike on the wealthy, a raised minimum wage, gun control legislation, ending the death penalty and unionization of day care workers as an illustration of the kinds of policies likely to follow publicly financed elections.  Kenneth R. Mayer, a political scientist at the University of Wisconsin, warned against drawing firm conclusions from these preliminary examples in a paper, “Public Election Funding: An Assessment of What We Would Like to Know”:  While there are many anecdotal accounts of policy shifts occurring in the wake of clean elections programs, as yet there have not been rigorous studies that have demonstrated significant effects on legislative, regulatory, or other policy outcomes.  The third positive consequence cited by advocates of public financing is the election of more working class and moderate income men and women to state legislatures and city councils.  Angus King, a former governor of Maine and now an independent Senator who usually caucuses with the Democrats, recently wrote in the Portland Press Herald:  I’ve watched as Maine’s Clean Elections system has transformed the state’s Legislature and opened the door for everyday people like plumbers, teachers, carpenters and firefighters to be able to run for office and compete against deep-pocketed or well-connected opponents.  The Sarbanes bill has the backing of the House Democratic leadership and 160 co-sponsors, one of whom is a Republican, Walter Jones of North Carolina. Dick Durbin, Democrat of Illinois and Senate minority whip, has introduced parallel legislation.  The Sarbanes proposal, like much campaign finance legislation at the city and state level, is complex.  A candidate for Congress choosing to accept matching money would first have to raise $50,000 from 1,000 small donors who give $150 or less and who live in the candidate’s state.  The federal government would then match the $50,000 on a six to one basis. That would make every $150 in private money worth $1,050 to the candidate. In return, the candidate would have to agree to refuse to accept PAC contributions and to limit the size of contributions from individuals to $1,000, in contrast to the $2,700 federal limit for candidates running without public funds.  A candidate who reached the $50,000 threshold would be able to start his or her campaign with a kitty of $350,000.  Since the Sarbanes bill uses taxpayer money and raises the possibility of shifting legislative bodies to the left, it has zero chance of enactment as long as Republicans control either branch of Congress.  Nate Persily, a Stanford law professor and the editor of the recently published book, “Solutions to Political Polarization in America,” observed in an email, “I generally support most public funding programs and support this one as well.”  Persily raised the possibility, however, that legislation boosting the role of small donors could increase polarization because there is evidence that such donors are “more ideologically motivated” than others. To counter the potential of increased polarization, Persily said that public funding could be expanded to “cut very large checks to the political parties to spend as they wish,” since the parties tend to be moderating forces.  Steve Rosenthal, a political consultant who used to be political director of the AFL-CIO, is notably enthusiastic about the Sarbanes bill: “Anything that can be done to help level the playing field, so that more everyday Americans can run for office is a good thing,” he said, adding that the median net worth of members of the House and Senate is far above that of voters. “It’s gotten to the point where the only people who can run are those who have contact lists rich enough to raise millions.”  He warned that Congress has become the equivalent of the House of Lords.  Bob Bauer, perhaps the preeminent Democratic campaign-finance lawyer, was less enthusiastic. He wrote in an email that the “the requirement of accepting contributions lower than the lawful limit” serves to impose “in this way an effective spending limit, not characterizing it as such. But it has a ‘backdoor’ feel to it.”  In terms of winners and losers, Bauer argued that the Sarbanes bill  is probably to the disadvantage of incumbents and it may also complicate the parties’ inclination to clear fields and subdue insurgencies.  Jan Baran, a Republican legal specialist in campaign finance, argued that the matching incentive in the Sarbanes bill amounts to  public financing for the politicians. While taxpayers like tax credits for themselves, they don’t support welfare for political campaigns.  Michael Malbin, executive director of the Campaign Finance Institute, has spoken extensively in support of the New York City law.  In testimony to the New York state Moreland Commission in 2013, Malbin argued that increased small donor participation is a way to counter  another kind of more systemic corruption: the corruption of representation that occurs when candidates spend so much of their time raising campaign money from rich contributors.  Malbin, a professor of political science at SUNY-Albany, told the commission:  I have nothing against rich contributors, but the system needs broader participation. Surveys make it clear that those who can afford large contributions do not have the same policy interests or priorities as most citizens. When office holders spend so much time hearing from big donors, they get a slanted view of the public’s priorities.  The current system of financing federal campaigns is out of whack. The power of the rich – captured in the Oct. 10 Times story about “the 158 families that have provided nearly half of the early money for efforts to capture the White House” – defies even the very elastic boundaries of American democracy.  For reformers to have a chance requires post-2020 congressional redistricting with Democrats in control in such key states as Michigan, Pennsylvania, Wisconsin and North Carolina, allowing the party to take control of the House in 2022.  The Roberts court has deregulated campaign finance on the premise that the only legitimate grounds for restricting money in politics is to prevent explicit corruption. In doing so, however, the court has sanctioned a pervasively corrupt regime.  In his forthcoming book on campaign finance, Rick Hasen, a professor of law and political science at the University of California-Irvine, writes:  The more central problem of money in politics is something just as troubling but much harder to see: systems in which economic inequalities, inevitable in a free market economy, are transformed into political inequalities that affect both electoral and legislative outcomes. Without any politician taking a single bribe, wealth has an increasingly disproportionate influence on our politics. While we can call that a problem of “corruption,” this pushes the limits of the words too far (certainly far beyond what the Supreme Court is going to entertain as corruption) and obscures the fundamental unfairness of a political system moving toward plutocracy.  The long run solution, Hasen argues — with reasoning I find unimpeachable — is a Supreme Court “that will accept political equality as a compelling interest that justifies reasonable campaign regulations.”
By making a mockery of traditional efforts at reform, the Supreme Court’s ruling shifted our attention to local experiments that appear to be working.