The history of campaign finance law in America dates back to 1867. The initial focus from then through 1883 and into the 20th
century was on workers in the public sector. Finally, in 1905,
President Theodore Roosevelt, in a speech, said "all contributions by
corporations to any political committee or for any political purpose
should be forbidden by law."[i]
However, in the era of ‘trust busting’, the focus was on corporations
and there were no proposed limits on individual donations.[ii]
Congress answered the President’s call, and in 1907 passed the
Tilghman Act, which prohibited corporations and interstate banks from
making contributions directly to federal candidates.[iii]
This legislation was idealistic but included little to no enforcement
provisions, which negated any impact the reform may have had. In 1910,
and later revised and amended in 1925, Congress passed the Federal
Corrupt Practices Act. The FCPA established disclosure requirements for
candidates for the House of Representative, and in the later amendments,
candidates for Senate as well.[iv]
It served as basic federal campaign finance law until 1971. However,
with power of enforcement vested in Congress, the very people it would
be enforced against, the Act was routinely ignored, and, in fact, was
not specifically enforced in the House until 1967, and the findings were
ignored by the Justice Department.[v] In 1940, Congress passed the Hatch Act, which amended the FCPA. It set
limits on individual contributions to federal candidates of $5,000 per
candidate or political committee per year.[vi]
However, under the campaign finance law of the time, more than one
committee could be working for the same candidate, and the Hatch Act
didn't prevent contributors from giving that amount to multiple
committees, which would then violate totals when used by the candidate.
The Act was applicable to primaries, as well as general elections,
barred contributions to federal candidates from individuals and
businesses working for the federal government.[vii] In 1943, through the Smith-Connally Act, the prohibitions created in the Hatch Act were extended to unions.[viii]
In 1944, the first political action committee (PAC) was formed by
Congress of Industrial Organizations (CIO) to raise money for the
re-election of President Franklin D. Roosevelt. The PAC money came from
voluntary contributions from union members, rather than from the union
treasuries which were funded by union dues, it was not prohibited by the
Smith-Connally Act.[ix]
In 1947, the Taft-Hartley Act made permanent the ban on contributions
to federal candidates from unions, corporations, and interstate banks,
and extended the prohibition to include primaries as well as general
elections.[x] The law was set until the 1970s.
Then
in 1971, Congress passed the Federal Election Campaign Act (FECA),
which repealed the Federal Corrupt Practices Act. FECA created
comprehensive framework for regulation of federal campaign financing of
primaries, runoffs, general elections, and conventions; required full
and timely disclosure; set ceilings on media advertising; established
limits on contributions from candidates and their families; permitted
unions and corporations to solicit voluntary contributions from members,
employees, and stockholders; and allowed union and corporate treasury
money to be used for overhead in operating PACs.[xi]
A piece of companion legislation to FECA, was the Revenue Act which
created a public campaign fund for eligible presidential candidates.
Beginning in 1976, voters could utilize a voluntary one-dollar check-off
on their federal income tax returns that would be added to the fund.[xii]
It also provided option of an individual $50 tax deduction for
contributions to local, state, or federal candidates or $12.50 tax
credit. The former was eliminated in 1978 and the later, after being
increased to $50 in 1978, was eliminated in 1986.[xiii]
In 1974, the FECA was modified in response to the Watergate scandal.
The amendments provided option of full public financing for presidential
general elections, matching funds for presidential primaries, and
public funds for presidential nominating conventions; set spending
limits for presidential primaries and general elections, and for House
and Senate primaries; revised the previously unenforced spending limits
for House and Senate general elections; created individual contribution
limit of $1,000 to a candidate per election and PAC contribution limit
of $5,000 to a candidate per election, limited aggregate individual
contributions to $25,000 per year; limited candidates' personal
contributions to their own campaigns; limited independent expenditures
on behalf of a candidate to $1,000 per election; ended the 1940 ban on
contributions from individuals and groups working on government
contracts; abolished limits on media advertising; and created Federal
Election Commission (FEC) to administer campaign law, with Congress to
appoint four of six commissioners.[xiv]
Then, in 1976, the entire situation changed. The Supreme Court handed down the decision in Buckley v. Valeo.[xv]
There, the plaintiff challenged restrictions in FECA, as amended in
1974, as unconstitutional violations of free speech. The Supreme Court
upheld disclosure
requirements, limits on individual contributions, and voluntary public
financing by finding that the compelling government interest in
preventing corruption or its appearance justified some restrictions on
free speech. However, Court struck down, as infringement on free speech,
limits on candidate expenditures, unless candidate accepts public
financing; limits on contributions by candidates and their families to
their own campaign; and limits on "independent expenditures" which
Congress had defined as election spending not coordinated with
candidates or their committees.[xvi] The state of campaign finance in the US was basically set until the 21st century.
In
2001, Congress passed the Bipartisan Campaign Reform Act (BCRA) of
2001, also known as the McCain-Feingold Act. The reform act was passed
to address, first, the increased role of soft money in campaign
financing, by prohibiting national political party committees from
raising or spending any funds not subject to federal limits, even for
state and local races or issue discussion and, second, the proliferation
of issue advocacy ads, by defining as "electioneering communications"
broadcast ads that name a federal candidate within 30 days of a primary
or caucus or 60 days of a general election, and prohibiting any such ad
paid for by a corporation, including non-profit issue organizations, or
paid for by an unincorporated entity using any corporate or union
general treasury funds.[xvii]
This
movement towards fiscal responsibility in elections was short lived on
the national level. The Supreme Court; in the decisions in McConnell v. FEC[xviii], FEC v. Wisconsin Right to Life[xix], Randall v. Sorell[xx], Davis v. FEC[xxi], and most recently in Citizens United v. FEC[xxii];
has removed the most drastic reforms of BCRA in favor of a system of
limitless expenditures by corporations and candidates, and very few
limitations on direct donations other than those from individuals.
A
layperson looking upon the national campaign finance scheme might find
it very discouraging. However, at the state level, there are many
alternatives that may prove more equitable. The Clean Elections campaign
has won victories in seven states including Maine, Arizona, New Mexico,
North Carolina, New Jersey, Vermont, and Connecticut; and in the two
municipalities of Albuquerque, NM and Portland, OR. Election reform in
the style of Clean Elections separates those making public policy from
the funding of those that might want to control it. Clean Elections
allow candidates to run for office without seeking large contributions
from the wealthy who may have interests to protect, or without spending a
majority of their time raising funds from the public. Instead,
candidates demonstrate public support by gathering a certain number of
small contributions from voters and agree to abide by spending limits
and forgo further private contributions. By making this agreement, they
are granted funds from the public treasury to run their campaign, and,
if they are elected, they owe their election to the public rather than
special interests, which may have funded their campaign otherwise. Thus,
they are accountable primarily to the voters who elected them and not
those special interests.[xxiii]
In many ways, the Clean Election movement seems to address most of the
problems in the national campaign finance laws. However, the evidence is
mixed on whether the movement has met the goals of providing greater
diversity in the candidate pool, allowing people from a variety of
backgrounds, who might not otherwise have had the resources to run, to
seek office and pursue policy solutions to the problems facing ordinary
Americans.[xxiv]
Although
the movement has similar goals, it has been implemented in different
ways in different states. The first states to examine are those that
have implemented clean elections for all statewide offices. The one
commonality amongst them, and what is important to keep in mind, is that
the system is voluntary and any candidate may “opt out” of the system
and not be held to the donation or expenditure limits.
Maine
was the first state in recent history to set-up a public funding
component of their campaign financing system. Maine’s law became, in
many ways, the model law that would be imitated elsewhere. In Maine, all
statewide offices qualify for Clean Election funding. Candidates who
can show support amongst the citizens of their district by collecting a
set number of $5 or more qualifying contributions, which differs
depending on the race the candidate is entering, from voters within
their district are eligible for funding from the Clean Election Fund. To
receive their money, candidates must agree to forgo all private
contributions, including self-financing, and limit their spending to the
grant. In addition, participating candidates are also given an
additional one-for-one match, up to a certain limit, if they are
outspent by non-complying opponents or are the target of independent
expenditures, such as ads produced by a group not associated with the
opposing candidate. Candidates who reject the publicly funded option or
who fail to qualify are still free to collect private money under the
existing system.[xxv]
November 2000 was the first election in which the law was in effect.
The Maine Citizen Leadership Fund reported that: first, out of a total
of 351 general election candidates for legislative races, 116 candidates
participated in the Clean Election program. The party breakdown fell
63% Democrats, 34% Republicans, and 3% Greens. About a third were
incumbents, including two who opposed clean election reform; second, the
state experienced a 40% increase in the number of contested legislative
primaries over the previous primary election.; third, participating
candidates won 53% of the races where they candidate faced off against a
privately funded candidate; and finally the total number of
participating candidates who won their legislative seats is 17 of 35
senators and 45 of 151 house members.[xxvi]
Since this first election, the participation has continued to grow.
While previous to 2000 the number of legislative candidates had been
falling, since 2000, where there were 374 candidates, that number has
risen to 402 in 2002 and 429 in 2004. In 2000, 31% of primary candidates
were publicly financed. That number has risen to 50% in 2002 and 71% in
2004.[xxvii]
In
1998, Arizona voters, through referendum later enacted by the
legislature, authorized the Citizens Clean Elections Act, based on the
Maine legislation, revolutionizing campaign fundraising in that state.[xxviii]
In Arizona, candidates who agree to accept only low initial amounts of
private contributions, to show public support, receive a fixed and
limited amount of public funds. A five-member, non-partisan election
commission, with real authority to enforce election laws, administers
the system. In addition to the initial funds, matching funds up to three
times the original campaign allocation are available for participating
candidates who are outspent by non-participating opponents or targeted
by independent expenditures. The law also reduced individual
contribution limits for non-participating candidates by 20 percent.
Candidacies for statewide races, as well as candidates for the state
legislature, can seek public financing. Although the program has grown
similar to the model jurisdiction of Maine, that is, it started slowly,
but the program has since become largely successful. In fact, Arizona
was the first state to elect a governor under a public finance system.[xxix]
Finally,
Connecticut has a similar statutory scheme to those adopted in Maine
and Arizona, though in Connecticut, the Citizen’s Election Program was
adopted by the Legislature without referendum.[xxx]
As in the previous examples, a candidate, voluntarily participating in
the program, must first collect a specific number of small contributions
to qualify for state funding. The candidate is then eligible for grants
which vary depending on the party, whether it is a major party or a
minor party, and financing status of the candidate's opposition, that
is, whether they are also publicly funded or not. As in the other
states, additional grants are available, over and above the general
grant, for difficult or crowded primary campaigns and if a
non-participating opponent spends in excess of the candidate.[xxxi]
In 2008, the first full campaign year of the program, more than
three-quarters candidates participated in the program. This number is
unprecedented as initial participation rates in Arizona and Maine were
only one-quarter and one-third of eligible candidates, respectively.[xxxii]
While the three previous states have implemented clean elections state wide, four other jurisdictions have done so on a limited basis for some state-wide offices. In 2002, North Carolina's legislature adopted a measure that provides for public financing of judicial campaigns, as well as a nonpartisan elections system for supreme court justices and appeals court judges. This is the first such program in the nation for judicial elections.[xxxiii] The legislature felt that using judicial elections as a pilot program was fitting, since judicial candidates should be the furthest from the pressures of the special interests who seek influence through campaign funding. Following successes with this program, in 2007 the Voter Owned Elections Pilot Program was enacted which created a public financing system for three offices of the Council of State: Commissioner of Insurance, State Auditor, and Superintendent of Public Instruction.[xxxiv] In New Jersey, the legislature passed a clean elections pilot project in 2004, which put into place two legislative districts for the November 2005 General Assembly elections. Following its success, the Legislature passed the 2007 NJ Fair and Clean Election Pilot Project Act. The law, which reauthorized, improved and expanded the 2005 pilot program, establishes a voluntary full public campaign financing program for candidates seeking election to the State Senate or General Assembly in three additional districts for the 2007 General Election. Under this continuing, expanded pilot program, candidates who collect 400 to 800 $10 contributions from voters in their district and who agree to forgo private campaign contributions receive public funding grants to run their campaigns. The Governor and Legislature agreed that they hoped full public campaign financing would the door to more non-traditional candidates, including women and people of color, as well as increased voter participation.[xxxv] In 2006, New Mexico enacted the Voter Action Act which created publicly funded campaign finance reform for the New Mexico Public Regulation Commission (PRC). The PRC is a five-member elected board which was created in 1996 to regulate public utilities, telecommunications companies, and insurance companies as well as the registration of corporations and compliance with applicable laws. From the beginning, critics were concerned about candidates accepting campaign contributions from the same corporate interests they will then be mandated to regulate. The program provides a grant to individuals who run for public office after qualifying by collecting a set number of $5 contributions. The system is funded by the state at $300,000 per election cycle, which will be divided amongst the qualifying candidates. It will be procured from a small surcharge on the regulated industries that the PRC oversees. After finding success with this program, the legislature expanded the program to include candidates for judgeships on the Court of Appeals and Supreme Court of New Mexico in 2007.[xxxvi]
Finally, in Vermont, the Vermont clean election law offers a public financing option to candidates running for governor and lieutenant governor in the year 2000, and commissions a study to consider extending the option to other state offices after the 2000 elections. The legislation provided a fixed amount of Clean Money to qualifying gubernatorial candidates, without an additional amount if the participating candidate was outspent by a non-participating competitor, and set a $300,000 spending limit for all candidates running for governor.[xxxvii]
There have been victories and losses in judicial review of public
financing systems. The initial challenge came in 1999 in Maine. In Daggett v. Commission on Governmental Ethics & Election Practices,
the U.S. District Court upheld the state's clean election law. The
Court of Appeals affirmed and found that spending limits on candidates
who accept public funding are not a free speech violation. The Court
held that “the public funding system in no way limits the quantity of
speech one can engage in or the amount of money one can spend engaging
political speech, nor does it threaten censure or penalty for such
expenditures.”[xxxviii]
This is because the system is voluntary, and while it provides "
‘incentives' to make the public financing route attractive," these
incentives are not "overwhelming or of an order that can be said to
create profound disparities."[xxxix] A similar victory was found in a North Carolina case, Duke v. Leake.
There, the Supreme Court refused cert, which left standing the lower
court’s holding which itself, upheld the North Carolina public financing
system.[xl] However, there have been setbacks as well. In Davis v. F.E.C., public financing laws were indirectly attacked. In
this case, the “Millionaire’s Amendment” of the BCRA was found
unconstitutional. The Court held that the goal of “leveling” electoral
opportunities does not justify a campaign finance system in which “the
vigorous exercise of the right to use personal funds to finance campaign
speech produces fundraising advantages for opponents in the competitive
context of electoral politics.” This may be applied to triggering
provisions in which additional funds can be granted to campaigns where
the non-participating opponent exceeds the initial funding or the
participant is targeted by independent spending. Another setback is
found in an Arizona case. The recent Supreme Court decision in McComish v. Bennett
has brought the Arizona statutory scheme into question directly. Though
the Supreme Court has not ruled on the merits of the case, the
reinstatement of the District Court’s injunction against the matching
funds disbursement, tied to the decision in Davis, suggests the Court is concerned about the first amendment impact of the matching funds provisions of the public financing. In Green Party of Connecticut v. Jeffrey Garfield, the Second Circuit strongly reaffirmed the holding in Buckley v. Valeo,
as applied here, that public financing systems enhance First Amendment
values rather than burdening them. Taking it broadly, the decision
upheld the constitutionality of public financing systems. However,
like the decisions in Davis and McComish, the Second Circuit struck
down one aspect of the program, the so-called "trigger provisions" that
provide additional public funds in unusually expensive races when
nonparticipating candidates or third parties spend over a certain
threshold.[xli]
Although many may not know, Maryland Election Law, like a
few other jurisdictions, actually contains a provision for public
financing, although it is very limited. The Election Law Article, Title
15 is titled the Public Financing Act.[xlii]
The purpose of the Act, as enacted states: The General Assembly
recognizes that our system of representative government depends in part
on guaranteeing that election campaigns are funded by and for the people
and on eliminating the corrupting and undemocratic effects of large
private contributions. Accordingly, the General Assembly finds and
declares that an equitable means of public campaign financing is
necessary in these times in order for representative democracy to
continue to function effectively.[xliii] The qualified ticket, which is defined as a gubernatorial ticket that has raised seed money[xliv],
that accepts a public contribution from the Fund for an election may
not spend, in that election, more than the product of 30 cents, adjusted
annually beginning January 1, 1997, in accordance with the Consumer
Price Index, times the population of the State, which shall be
determined by the State Board as of January 1 of the year of the
election in accordance with the more recent of either the most recent
decennial census of the United States or any population estimate
prepared for the State by the Department of Health and Mental Hygiene.[xlv]
For the primary elections, an eligible gubernatorial ticket that has
opposition shall receive $1 in public contributions for each $1 in
eligible private contributions it has received; an unopposed ticket
shall receive $1 in public contributions for each $3 in eligible private
contributions it has received. In the general election, each eligible
gubernatorial ticket that is a nominee shall receive an equal share of
the Fund, however, an eligible gubernatorial ticket may not receive a
public contribution if it is unopposed. An eligible gubernatorial ticket
that did not receive a public contribution in the primary election may
receive a public contribution in the general election only if the
gubernatorial ticket is a nominee in the general election and did not
exceed the expenditure limit for the primary election.[xlvi]
The public funds may be used for any legal purpose, authorized by the
laws of Maryland. Any unused funds at the end of the campaign must be
returned to the state. All privately contributed funds must be
considered ‘spent’ before any publicly contributed funds, for the
purposes of repayment.[xlvii]
While this is a great advancement, it does nothing to limit the impact
of contributions on the candidate, it may limit the time needed to
collect them but does not eliminate it. It is merely an effort to modify
the current system to meet the public desire for a better
system.
The purpose of public financing is not to modify
the current system of raising and spending private money for financing
campaigns, but rather to offer a whole new system that provides a clear,
voluntary alternative
to the current system. In addition, it seeks to address potential
problems and loopholes that exist in the current system that might seek
to undermine this alternative. This new system allows candidates to
choose to continue relying upon private financing, the old way, within
the auspices of the modified financing scheme, and yet provides strong,
though non-coercive, incentives for them to participate in the new way.
The main incentive is that public financing allows qualified candidates
to focus on reaching out to voters and informing them of the issues in
the campaign, instead of focusing on private fundraising that can
consume enormous amounts of time, compromise independent
decision-making, and undermine the electorate’s confidence in its
elected officials. Pubic financing stresses financially competitive
campaigns without the focus on fundraising. To that end, public
financing statutes broaden the definition of independent expenditure so
as to address the question of electioneering communications masquerading
as issue ads, and it seeks to ban soft money. With all of the
positives, the one overwhelming negative is the general public’s view of
more budgetary outlays in times of tightening State finances. However,
revenue for the Publicly Financed Campaign Fund could come from some
combination of many sources. First, the qualifying contributions
collected by participating candidates. That is, when a candidate raises
seed money, that money is then taken by the Fund, and the candidate is
granted a set amount without taking into account the seed money raised.
A second source could be an income tax check-off system, similar to the
one in place for presidential elections. While a direct taking of the
money was not supported, the direction that a dollar or more of the
voters tax burden be used to publicly fund campaign, may show the
legislature that there is broad public support for such a program.
Another source of income for the fund could be a highly publicized
program of voluntary contributions, which may or may not be tax
deductible. Finally, direct government appropriations to make up the
balance of what is needed. This may seem like a burden on the State’s
budget, but tied to offsetting measures like the elimination of
unnecessary tax exemptions, ‘pork barrel’ spending projects, and other
subsidies previously granted to major campaign contributors; a tax
increase would not be required to fund the expenditure. It is estimated
that such subsidies currently cost taxpayers far more than what it would
cost to provide full public financing.[xlviii]
In New State Ice Company v. Liebman, the court held that the states should be laboratories where new ideas can be tested. [xlix]
Put in the context of publicly funded campaigns, the court would have
been authorizing states to decide for themselves what public finance law
is best for them. Theoretically, there could be 50 different systems
being tested at any time around the country. The result of such leniency
could be the development of a better system for the entire country.
However, as cases rise through the judicial appeal system, the Courts
strictly defer to precedence, and often refuse to hear an appeal based
on it, rather than giving the states the leniency they might seek. The
most important of these decisions was Buckley v. Valeo.[l]
There, the Court said that it would uphold limits on contributions, so
long as the state could show that “certain donations corrupt or lead to
the appearance of corruption.”[li]
Further, the Court held that disclosure was permitted in some
circumstances, there was a difference between express and issue
advocacy, and independent expenditures could not be banned. Finally, the
Court held that public financing systems are allowed but must be
voluntary. More recently, the Supreme Court in Nixon v. Shrink Missouri Government PAC, though auspiciously upholding Buckley, held that limits lower than those in Buckley would be allowed.[lii]
Further, the Court seemed to hold that the level of proof necessary to
demonstrate corruption or the appearance of corruption was lower than it
seemed in Buckley.[liii]
Thus, Buckley and Nixon set the standard for what public financing
options the state may have; but that is only the first part of the
campaign finance process. Another, some would argue more important, part
of the process that must be undertaken is for the Legislature to
correctly frame the discussion of campaign finance. The State
Legislature must show that, Buckley notwithstanding, they can make the
rules for State races. They must frame the limitations on money as
limitations on conduct relating to speech[liv], the test for which is held in US v. O’Brien[lv],
rather than limitations on speech itself. By holding it to this lower
standard, more liberal limitations may be allowable. The Circuit Court
of Appeals for D.C. has already accepted this argument, and other
circuits could follow it as well.[lvi]
Taking
into account the current state of the campaign finance system in
Maryland, including the limited public financing aspects, as well as the
tenets of Clean Elections that outline a good public financing system,
an examination must begin on what would be the best system for Maryland
to adopt (or retain). Any examination of the “best” system must be made
in context. It must be understood that this system would have to exist
outside of the precedence of Buckley. The evidence suggests that whether
the standard is real corruption or the appearance of corruption that
political donations create, the best system would be one that eliminates
these potentially corrupting influence completely. Ideally, mandatory
participation in the public financing system is the only way to
completely erase the threat, as self-financed candidates and those who
can out-raise participating candidates will always threaten the system’s
overall goals.
Understanding
that Buckley limits the legality of a public financing system, a real
reform in Maryland would have to be voluntary. However, the State could
adopt the other aspects of an ideal public financing system. First, as
with most public financing systems, a candidate would have to raise a
minimum number of donations, set by the Legislature, depending on the
seat that is sought, to be considered legitimate. These donations could
not exceed $250 per individual donor. Donations from PACs or other
organizations would not be illegal, per se, but they would not be
counted towards the total seed money, and all seed money would be turned
over to the State board of elections, making any PAC donation moot.
Moot or not, these donations would be capped at $750. Once legitimacy
has been established, the candidate is then given the amount of funding
for the primary. Any expenditure the campaign might make, as long as
they are otherwise legal, will be allowed. That is, a candidate could
spend their entire allotment on television ads or direct mail or
anything that they choose. However, they are limited in funding to their
allotment and can raise no more. After the two major parties, and any
minor or new parties, have selected their candidates for the general
election, and any independent candidates have decided to run in the
general, any candidates who qualify will be given public financing funds
for the general election. Again, as in the primary, the funds are given
out and can be spent in any way the campaign sees fit, as long as
expenditures are legal, but the payout will be the sole source of funds
for the general election. For those that forego public financing, there
will still be major changes to the way the campaign is financed.
If
a candidate opts out of the public financing plan, their ability to
raise funds will be limited to the same $250 donations that the public
funding candidates use to establish legitimacy. PACs, parties, and other
political organizations will be limited to $750 donations to each
campaign. All donations will be mandatorily blind. That is the source of
the funds will not be known. All political donations will be sent to
the State, or in the case of local candidates, the county, Board of
Elections. Upon registering the campaign organization, a political
account will be created wherein donations received will be credited. The
account balance will be available to the campaigns and the funds will
be made available within 2 business days. The Board of Elections will be
responsible for validating the donations and passing them on to the
campaigns. In this way, the candidates will never know who donated to
them or how much. This is clearly constitutional. It burdens speech far
less than mandated disclosure, or even the partial disclosure of the
current system. Moreover, as quoted in Buckley, if the compelling
government interest is to avoid corruption or the appearance of
corruption, mandated anonymity meets those goals better than mandated
disclosure. [lvii]
Another
aspect of the campaign financing system as reformed is the impact of
independent expenditures. It remains to be seen whether, after Citizens
United, States may limit the expenditures of corporations. What is
clearly constitutional is the mandatory disclosure of the source of
funds spent in or in relation to races within the state. The Legislature
should enact stiff penalties for non-reporting/non-disclosure of monies
spent in the state. Legislative intent should be clear- the Legislature
wishes to have known the source of every dollar spent in an election in
the State of Maryland. This does not mean that corporate or political
interests can hide their donations. The definition of source is not a
corporate interest formed for making donations, but the actual
corporation or individuals for whom the donations were once income.
For
the campaigns, the preference will be clearly for public funding. If
candidates choose to opt out of the system, they are free to raise any
monies they want, subject to the limits above, and spend it in the same
way as the publicly financed candidates spend their allotment of funds,
that is in any legal way they choose. However, with the low limits, they
will find it more difficult to raise the funds, and have to spend much
more of their time doing so.
There
is strong evidence that the American public disdains a political
process that is so wrapped up in money, especially private donations of
it. Yet, the conservative Supreme Court seeks to whittle away at the
minimal protections afforded by moderate campaign finance reform. What
is needed to try and fix the process is an overhaul- and publicly funded
campaigns can provide that. When paired with, where needed, mandatory
open and blind disclosure, requirements, they can provide a fair system
of elections, which was the true wish of the founding fathers (while
fair was defined from the perspectives of their times) rather than the
skewed interpretation the conservative Court uses to justify their
holdings. A few states have successfully brought election funding into
the public sector and Maryland could be one of them. As outlined here,
publicly funded campaigns could and would, as modeled, meet Federal and
State Constitutional tests, which would allow them to gain a foothold in
the election landscape in Maryland. Later, it could be possible, with
the right public and judicial support and other factors, to transform a
public financing option into a publicly funded campaign
mandate.
[i] Hoover Institute, Campaign Finance History - History http://www.campaignfinancesite.org/history/financing1.html (last visited November 8, 2010)
[ii] See Id.
[iii] See Id.
[iv] See Id.
[v] See Id.
[vi] See Id.
[vii] See Id.
[viii] See Id.
[ix] See Id.
[x] See Id.
[xi] See Id.
[xii] See Id.
[xiii] See Id.
[xiv] See Id.
[xv] Buckley v. Valeo, 424 U.S. 1 (1976)
[xvi] http://www.campaignfinancesite.org/history/financing1.html
[xviii] McConnell v. Federal Election Com'n, 540 U.S. 93 (2003)
[xx] Randall v. Sorrell, 548 U.S. 230 (2006).
[xxi] Davis v. Federal Election Com'n, 128 S.Ct. 2759 (2008)
[xxii] Citizens United v. Federal Election Com'n, 130 S.Ct. 876 (2010)
[xxiii] Public Campaign, Brief History of Clean Elections Victories, http://www.publicampaign.org/briefhistory (last visited November 8, 2010)
[xxv] New Rules Project, Campaign Finance Reform – Maine, http://www.newrules.org/governance/rules/campaign-finance-reform/campaign-finance-reform-maine (last visited November 8, 2010)
[xxvi] See Id.
[xxvii] See Id.
[xxviii] New Rules Project, Campaign Finance Reform http://www.newrules.org/governance/rules/campaign-finance-reform (last visited November 8, 2010)
[xxix] See Id.
[xxx] See Id.
[xxxi] New Rules Project, Campaign Finance Reform – Connecticut, http://www.newrules.org/governance/rules/campaign-finance-reform/campaign-finance-reform-connecticut (last visited November 8, 2010)
[xxxii] See Id.
[xxxiii] New Rules Project, Campaign Finance Reform –North Carolina, http://www.newrules.org/governance/rules/campaign-finance-reform/campaign-finance-reform-north-carolina (last visited November 8, 2010)
[xxxiv] Public Campaign, Brief History of Clean Elections Victories, http://www.publicampaign.org/briefhistory (last visited November 8, 2010)
[xxxv] New Jersey Citizen Actions, Expand NJ Clean Elections Programs, http://www.njcitizenaction.org/cfr.html (last visited November 8, 2010)
[xxxvi] Public Campaign, New Mexico Becomes Sixth Clean Money State, http://www.publicampaign.org/pressroom/2003/03/14/new-mexico-becomes-sixth-clean-money-state (last visited November 8, 2010)
[xxxvii] New Rules Project, Campaign Finance Reform http://www.newrules.org/governance/rules/campaign-finance-reform (last visited November 8, 2010)
[xxxviii] Daggett v. Commission on Governmental Ethics and Election Practices, 205 F.3d 445 (2000).
[xxxix] New Rules Project, Campaign Finance Reform – Maine, http://www.newrules.org/governance/rules/campaign-finance-reform/campaign-finance-reform-maine (last visited November 8, 2010)
[xl] Brenan Center for Justice, State Courts - Court Cases - Duke v. Leake http://www.brennancenter.org/content/resource/jackson_v_leake/ (last visited November 8, 2010)
[xli] Goldwater Institute, McComish v. Bennett (Clean Elections), http://www.goldwaterinstitute.org/case/68 (last visited November 8, 2010)
[xlii] Election Law Article, §15-111
[xliii] Election Law Article, §15-101
[xliv] Election Law Article, §15-104
[xlv] Election Law Article, §15-105
[xlvi] Election Law Article, §15-106
[xlvii] Election Law Article, §15-107
[xlviii] Public Campaign, Annotated Model Legislation for Clean Money/Clean Elections Reform, http://www.publicampaign.org/modelbill (last visited November 8, 2010)
[xlix] New State Ice Co. v. Liebmann, 285 US 262 (1932)
[l] Buckley v. Valeo, 424 U.S. 1 (1976)
[li] See Id.
[lii] New Rules Project, Campaign Finance Reform – Nixon v. Shrink, http://www.newrules.org/governance/rules/campaign-finance-reform/campaign-finance-reform-nixon-v-shrink (last visited November 8, 2010)
[liii] See Id.
[liv] Symposium on Campaign Financing Regulation Sponsored by the ABA Special Committee on Election Reform
[lv] U. S. v. O'Brien, 391 U.S. 367 (1968)
[lvi] Symposium on Campaign Financing Regulation Sponsored by the ABA Special Committee on Election Reform
[lvii]
Ian Ayres, “Disclosure versus Anonymity in Campaign Finance” in
Designing Democratic Institutions 44 (Ian Shapiro, and Stephen Macedo,
eds.)
© Robert Cheek, 2010
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