Home -> Law Blog Directory -> Legal Commentary Blogs -> Balkinization

Legal Commentary

: Balkinization

An Interesting Idea for Campaign Finance Reform

By Jack M. Balkin

Jessica Schumer, Yale Class of 2010, just posted a nifty idea for campaign finance reform on the ACS website. In the wake of Citizens United's ruling on independent corporate spending during elections, reformers have become increasingly interested in the use of disclosure and disclaimer rules that would help voters identify the funders behind a campaign ad. As I noted in testifying before Congress, Justice Kennedy's opinion offered a robust endorsement of such a strategy. Disclaimer rules, in particular, may prove especially helpful in solving what David Schleicher terms the "mismatch problem." As any political scientist will tell you, many voters lack detailed knowledge about policy debates. They nonetheless make pretty sensible decisions in casting a vote because they rely on shortcuts or heuristics (like party ID). A "mismatch" occurs, however, when we don't give voters the tools they need to cast a sensible vote. For instance, if the oil industry can fund an advertisement for off-shore drilling through a shell-organization called "Americans for Clean Energy," voters are likely to evaluate the message differently than they would if the advertisement indicates that its main funders are British Petroleum and Exxon Mobile.

As far as I'm aware, all of the proposals pending in Congress use disclaimer rules as a stick to prevent corporations from hiding behind shell organizations when funding independent ads. Schumer's proposal, in contrast, would offer organizations a carrot. In keeping with the "small donor" approach that that the Obama campaign used so effectively, she suggests that organizations that voluntarily limit their contributions should be able to run advertisements indicating that "this ad was paid for with democratic dollars."

There are lots of practical and legal details to work out here (for instance, you might prefer a different regime for identifying small donors, and the idea obviously raises some constitutional questions). But you can see the basic point. If an organization really is funded by small donors, why not let voters know? As Justice Kennedy observed in Citziens United, "the public has an interest in knowing who is speaking about a candidate shortly before an election." The fact that an advertisement has been funded by small donors is likely to be just as salient to voters as an ad's connection to the oil industry.

Better yet, Schumer's proposal is in keeping with what I think is the only sensible strategy for reforming campaign finance in the short term: It "harnesses politics to fix politics" by creating incentives for organizations to reach out to small donors and pull them into the system. As I have written elsewhere, campaign finance advocates have typically tried to take money out of politics, to shield democracy from the corrupting influence of money. In a system like ours however -- where reform is piecemeal and public financing is not yet a politically viable option -- the results have been underwhelming. Money hasn't been taken out of politics; donors simply find new, less transparent ways of influencing the process. Schumer's proposal moves in a different direction. Rather than trying to limit the power of money in politics, it seeks to harness moneys power to fix politics, giving politicians a reason to care about what everyday voters think.

Full post as published by Balkinization on May 17, 2010 (boomark / email).