Showing papers in "Election Law Journal in 2004"

Did Firms Profit from Soft Money

Abstract: 193 AT ITS HEART, the Bipartisan Campaign Reform Act (BCRA) seeks to limit the private benefits that firms receive from campaign contributions. A series of rulings by the Federal Election Commission created the opportunity for organizations and individuals to give funds to party accounts outside the system of direct contribution limits—so-called soft money. Although little used before 1992, soft money ballooned during the 1990s. In the 2000 election, the two major parties raised approximately $500 million in soft money, most of which came from corporations in donations in excess of $100,000, at least ten times larger than the hard contribution limits set in the Federal Elections Campaign Act.1 Companies were widely alleged to have profited directly and substantially from their soft money donations. In the years leading up to the passage of BCRA, public interest groups and the press provided numerous examples of firms that benefited from public policies and were also large soft money donors—tobacco, pharmaceutical, and oil companies were especially featured in these reports. The most telling evidence, cited extensively by the majority opinion in McConnell v. FEC, emerged in hearings before the U.S. Senate Committee on Commerce in 1998. Corporate executives and legislators testified that soft money donations were often given when valuable government contracts where on the line. In other cases, donors feared that if they did not contribute, then their companies would lose competitive advantages through regulations. These were clearly stories of excess. Parties and their candidates received donations well in excess of what they could raise under the hard money limits, and corporations, which gave most of the soft party money, allegedly received excessively large benefits at public expense in return for their contributions. Were these cases typical, or exceptional? If exceptional, then the government might best deal with the problems of corrupt practices through aggressive enforcement of anti-bribery laws. If typical, then the government might attempt to eliminate these problems with blanket restrictions on contributions—as they in fact did. At issue is the extent to which donors, especially large corporate donors, benefited from soft money. Economists and political scientists have long been puzzled about the influence of campaign contributions on public policy. An extensive literature examines the association between hard money contributions and public policy decision-making, especially roll call voting in the U.S. Congress. The large majority of studies find no significant effects of hard money contributions on public policy, and, in those that do find some association, the magnitude of the effects is typically very small.2

Regulating Campaign Finance in Canada: Strengths and Weaknesses

Abstract: that will have a significant impact on the parameters of Canadian election law. This paper, then, offers an end-of-era evaluation of the strengths and weaknesses of the old Canadian regulatory regime and a more speculative evaluation of the arrangements that replaced it in 2004. In undertaking these evaluations, I use as my criteria four basic requirements for an effective regulatory regime: accountability, transparency, integrity and equity. Accountability means that parties and candidates must be held responsible for their actions and actions taken in their name, and be subject to penalties for improper actions. It implies that parties and candidates should be accountable to voters because the purpose of democratic elections is to allow the voters to select representatives by casting fully informed votes (Adamany, 1990, 95). Transparency refers to full disclosure of the source of money used in election campaigns, as well as to the amounts spent. For a system to be fully transparent, this information must be made available to the public in a timely fashion. Disclosure of political financing information equips citizens with the information they need to make decisions about the integrity and trustworthiness of candidates. Knowing that financial transactions will be open to public scrutiny may discourage parties or candidates from accepting contributions in return for which they will be obligated to favor the contributor’s interests. Integrity refers to limiting the potential for undue influence over political decision-makers. Like fairness, equity is a more complex concept. At a minimum, equity requires that all parties or candidates be treated

Implementing the Help America Vote Act

Abstract: The 2000 election made us all dimly aware of the intricacies of our elections. We learned about the high degree of decentralization merely from watching television reports of the court actions in more than six Florida counties, all seemingly independent from each other and from any significant state control. We also learned about the massive number of people involved in a recount as we watched the lines of observers line up day after day at the Emergency Operations Centers of Broward and Palm Beach counties. These institutional arrangements were not peculiar to Florida. As we have learned since 2000, U.S. elections are very complex undertakings:

Redistricting: What the United States Can Learn from Canada

Abstract: be said to describe how district boundaries are readjusted in Canada. Why the difference between the two countries—countries that in many other ways (including their continued adherence to plurality voting) share much in common on the electoral machinery front? The answer is complex and multi-layered. It warrants a full-blown comparative analysis, something that the length of this paper does not permit. Fortunately the American side of the equation has been amply covered in works ranging from the magisterial study of redistricting by Robert Dixon, through numerous books and articles by Bernard Grofman and colleagues, to recent studies by David Lublin, Mark Rush, and David Canon (Canon, 1999; Dixon, 1968; Grofman, Lijphart, McKay and Scarrow, 1982; Grofman, Handley, and Niemi, 1992; Lublin, 1997; Rush, 1998; and Rush and Engstrom, 2001). I take comfort in the vast American literature on electoral districting. It frees me from the responsibility of constructing a truly comparative framework for my analysis and enables me to devote the remainder of this paper to an examination of redistricting in Canada. I propose to consider three questions. First, what has Canada done to reform its process of readjusting electoral boundaries? Second, why did it do it? Third, how has it worked out? The answers to those questions may help to provide guidance to Americans seeking alternatives to the labyrinth that currently marks redistricting in the United States. But first, a semantic note. In a federal country such as Canada or the United States electoral districts in the national Parliament or

The Prohibition on Consecutive Reelection in the Mexican Congress

Abstract: tion of federal legislators was never brought up during the constitutional convention. In fact, the reelection of deputies was extremely common during the last two decades of the Porfirian dictatorship, which ended in 1910. Furthermore, once the political elite in Congress was replaced with a new revolutionary cohort, the reelection levels remained relatively high, comparable to other countries in Latin America today. For example, in the last legislature that permitted consecutive reelection (1932– 1934), 35.2 percent of the deputies had been reelected (Nacif n.d.). However, in 1932, the official party (then known as the Partido Nacional Revolucionario, PNR) decided in a convention of state legislators to prohibit the consecutive reelection of federal legislators. The constitutional reform was enacted by Congress by the end of 1933, going into effect for the term beginning in 1934. The official reasoning behind this move was to open up greater circulation of secondary leaders within the revolutionary party. The proponents of the reform argued that the no reelection theme of the Revolution should be applied across the board. However, there was significant opposition within the official party itself (at the time there really were no opposition parties, at least within the legislative branch). The real reason behind the reforms appears to be that the party leadership, specifically former president Plutarco Elias Calles, wanted to centralize control over the party. At the time, the main threat to the party was geographical decentralization—centrifugal forces that were pulling the party apart. The prohibition on the reelection of federal legislators

McConnell v. FEC and Disclosure

Abstract: 237 THE WILLINGNESS of the majority and most dissenting justices to uphold the disclosure provisions in the Bipartisan Campaign Reform Act (BCRA) suggests that disclosure statutes are more likely to withstand constitutional scrutiny in the wake of McConnell v. Federal Election Commission.1 Disclosure will be increasingly important at the federal level as one of the tools to combat efforts already underway to circumvent BCRA’s substantive limitations. The “loophole” of using nonprofit organizations as conduits for fundraising and expenditures was apparent to the Justices when they wrote McConnell;2 such organizations will take over some of the role previously played by political parties. Although some nonprofits are required to disclose their contributors, others can hide the sources of their funding.3 Although current efforts to evade BCRA place disclosure rules, and any gaps in their coverage, in high relief, the significance of mandatory disclosure goes well beyond federal candidate campaigns. Disclosure rules are the most widespread regulation of the campaign finance system, and they are the sole regulation in several electoral arenas. In state and local candidate elections, several states have adopted disclosure statutes, some quite aggressive, others less robust, as their primary regulatory tool.4 In direct democracy, disclosure is the only form of regulation permitted by Supreme Court jurisprudence. Because the Court has held that issue elections pose no threat of quid pro quo corruption, the justification for disclosure in direct democracy must rest solely on informational concerns. Notably, in McConnell, the majority and Justice Kennedy seem willing to accept the informational interest as a sufficiently important state interest to support mandatory disclosure. Kennedy considers this interest as an independent justification for disclosure, while the majority links it to a kind of corruption that occurs when groups spend money to influence electoral outcomes in ways that conceal their identities from voters.5 A state interest in providing information to empower citizens to vote knowledgably and to combat deception can support disclosure statutes in both candidate and issue elections.

McConnell v. Federal Election Commission: Ideology Trumps Reality, Pragmatism

Abstract: THE SUPREME COURT’S DECISION in McConnell v. Federal Election Commission,1 upholding the constitutionality of the Bipartisan Campaign Reform Act of 2002 (“BCRA”),2 was eminently predictable,3 but nonetheless stunning in the sweep of its language and the shallowness of its analysis. The majority simply had no response, and so did not try to respond, to the most simple and devastating critique made by the various dissents: that political speech now clearly has less constitutional protection than virtual child pornography, tobacco advertising, sexually explicit cable programs, dissemination of illegally received communications, nude dancing, defamation, cross burning, and flag burning.4 We need not analyze all of these cases here to grasp, intuitively, that something has gone seriously wrong in the Court’s First Amendment jurisprudence. Historically, decisions that sharply curtail civil liberties, as does McConnell, have not stood well the test of time, and are looked upon as black moments in the Court’s history. To take a few examples, think Korematsu v. United States (allowing the internment of U.S. citizens of Japanese descent during World War II);5 Buck v. Bell (upholding forcible sterilization of “feeble minded”);6 Plessy v. Ferguson (upholding segregation laws);7 or, most relevant here, the string of early twentieth century cases upholding restrictions on political speech: Dennis v. United States,8 Whitney v. California ,9 Gilbert v. Minnesota,10 Abrams v. United States,11 Debs v. United States,12 and Schenk v. United States.13 Time will tell if McConnell suffers the same fate: that the speech cases cited above involved direct calls to overthrow the government or to sabotage war efforts, and are nonetheless looked down upon today, is not a good omen for the justices in the McConnellmajority. In this brief essay, however, so soon after the decision,

The Two Sides of Money in Politics: A Synthesis and Framework

Abstract: 653 MONEY IN POLITICS is a two-sided coin. On its face, campaign spending is a constitutionally protected right vital to informing and mobilizing ordinary citizens. On the flip side, privately financed campaigns may induce politicians to favor wealthy special interests at the expense of those very same ordinary citizens. The challenge for policymakers is to inhibit the negative effects of political money without undermining its beneficial aspects. Given the complexity of the political environment and the many layers of strategic interaction that accompany any regulatory regime, this is no easy task. An essential first step is to present a clear analytical framework that allows policymakers to assess who is affected by a law, what their interests are and, in equilibrium, what they will do. This paper develops such a framework based on empirically motivated assumptions about political actors, their incentives and the good and bad purposes money can serve. The central point to emerge is that the effects of privately financed campaigns are highly conditional. The major corollary is that the effects are not always intuitive: it is possible, for example, for contributions to undermine responsiveness even when there is no possibility of quid pro quo arrangements. Under the most empirically plausible conditions, however, the framework indicates that privately financed campaigns increase responsiveness on major issues at the expense of donor influence on minor issues. This state of affairs is far from perfect and implies potentially chronic contributor influence on less prominent issues. I therefore use the framework to argue reform should enhance the credibility of campaign information and diversify the donor pool. I also raise concerns that limits on large contributors, such as the ban on party soft money in the Bipartisan Campaign Reform Act of 2002 (“BCRA”), may promote wealth bias by disproportionally constraining candidates representing the non-wealthy. This paper proceeds as follows. The next part presents the costs and benefits of privately funded campaigns. The third part integrates these costs and benefits into an analytical framework, paying particular attention to the concepts of anticipated reaction and indirect competition. The fourth part discusses money and politics in practice, including a discussion of the likely effect of limits on very large contributions. The fifth part turns to a discussion of reform strategies that would promote fair representation in the face of vast inequalities of wealth. The sixth part concludes.

The Unbearable Lightness of Being McConnell

Abstract: 299 McConnell v. FEC1 arrived as a landmark. The Bipartisan Campaign Reform Act of 2002 (BCRA),2 which it largely upheld, represented the most far-reaching and controversial attempt to restructure the national political process in a generation. BCRA changed not only the relationship between national and state parties, the relationship between federal candidates and their parties, and the ways in which advocacy and interest groups could participate in politics, but also reduced the influence of corporations and unions in federal elections. Most notably, corporations and unions could no longer give unlimited amounts of socalled “soft money” to the national parties3 and could no longer themselves engage in one of the most effective means of election campaigning—targeting an identifiable candidate’s constituency with mass advertising on radio and television shortly before an election.4 McConnell is certainly the most important campaign finance case since Buckley v. Valeo5 and, because of the centrality of elections and political speech to democratic government, one of the most important constitutional cases in recent years. By any measure, including this special symposium, McConnell is a case of remarkable significance. To many, McConnell’s great stature makes the opinion in the case all the more disappointing. Its critics charge that the Court’s opinion reasons less than carefully, theorizes the major issues shallowly, and most importantly fails to acknowledge, let alone address, the deep tensions in the existing doctrine it purports to rest on. On a more doctrinal level, they claim that the Court’s analysis glides over issues such as overbreadth, underinclusiveness, and vagueness; fails to justify its standard of review, let alone diligently apply it; defers to Congress in an area where congressional motives are open to question; and accepts slender empirical evidence for the governmental interests asserted to justify the law. These are very serious charges—and they are in part true. Compared to the much criticized 1,638-page work of the three-judge district court,6 which upheld less of BCRA, the Supreme Court’s opinion appears thin. Unlike the district court, the Supreme Court avoided engaging the debates over the expert evidence underpinning BCRA and largely failed to focus on the traditional issues that first amendment doctrine makes central. Most surprisingly, the Court did not even attempt to refurbish and strengthen the two most controversial features of the constitutional architecture on which it relied: Buckley’s distinction between contributions and expenditures and Austin v. Michigan State Chamber of Commerce’s distinction between corporate and individual spending.7

McConnell, Parties, and the Decline of the Right of Association

Abstract: 199 McConnell v. FEC1 represents a significant departure from Buckley v. Valeo,2 perhaps signaling the beginning of the end of its reign. Of most wide-ranging impact is the Court’s sweeping “deference” to Congress, which appears to follow more from decisions such as Shrink Missouri3 and Colorado Republican II4 than from Buckley.5 Yet, in another respect, McConnell is consistent with Buckley: it takes a profoundly limited view of the right of association. Because the Court in McConnell faced an even clearer choice than it did in Buckley on the associational rights issues, its decision to assign little significance to them may signal the effective demise of the right of association in campaign finance jurisprudence. Buckley also had given short shrift to associational rights, placing far more emphasis on the “speech” effects of campaign finance regulation. The Buckley Court endorsed the view that, unlike the right of speech, the right of association did not enjoy the protection of the highest level of scrutiny of government-imposed controls on political money. Restrictions on expenditures—on direct speech, as the Court treated expenditures—would be subject to the strictest scrutiny, requiring a compelling interest served by the most narrowly drawn means. Contribution restrictions, more immediately significant in the Court’s view to the exercise of associational rights—would be treated differently, because contributions constituted only a “general expression of support of the candidate and his views” without communicating the “underlying basis for the support.”6 Under the Buckley Court’s analysis, the adverse effects on association were tolerable. Contributors restricted in their contributions remained “free to become a member of any political association and to assist personally in the association’s efforts on behalf of candidates.”7 This construction, it may be useful to recall, did not follow necessarily from the Court’s preBuckley precedent. Cases such as NAACP v. Alabama,8 commonly cited for the proposition that associational rights matter, held that “state action which may have the effect of curtailing the freedom to associate is subject to the closest scrutiny,”9 and that the associational right is an “inseparable aspect of the ‘liberty’ associated with the Due Process Clause. . . .”10 Yet, for purposes of assessing the constitutionality of campaign finance controls, the Buckley Court

The Surprisingly Easy Case for Disclosure of Contributions and Expenditures Funding Sham Issue Advocacy

Abstract: 251 BEFORE THE UNITED STATES SUPREME COURT decided McConnell v. Federal Election Commission,1 the law related to campaign finance disclosure was a mess. As this commentary explains, McConnell resolved a key disclosure question, upholding the constitutionality of new disclosure rules in the Bipartisan Campaign Reform Act of 2002 (BCRA) related to contributions and expenditures funding “sham issue advocacy” in candidate elections. McConnell unfortunately left open many other important questions concerning conflicts between two earlier key Supreme Court cases discussing disclosure, Buckley v. Valeo2 and McIntyre v. Ohio Elections Commission.3 Even after McConnell, the constitutionality of disclosure rules in three important areas remains unclear: (1) To what extent may the government compel disclosure of a speaker’s identity in face-to-face election-related communications or compel disclosure of the funder of communications on the face of election-related advertisements? (2) To what extent may the government compel disclosure of expenditures by those using modest resources? (3) To what extent may the government compel disclosure of contributions and expenditures in ballot measure campaigns? Answers to these questions will await cases post-McConnell.

Political Parties Under the Post-McConnell Bipartisan Campaign Reform Act

Abstract: 177 THIS ARTICLE considers some implications for the political system of the federal soft money ban passed by Congress and interpreted by the Supreme Court in McConnell v. FEC (124 S. Ct. 619 [2003]). Political scientists for several years have been debating whether and how a ban on soft money might hurt the political parties. These debates were reflected on the floor of Congress and in briefs filed with the courts in McConnell v. FEC. By upholding most of the Bipartisan Campaign Reform Act (BCRA) the Supreme Court assured the debate would continue. But by overturning the law’s attempt to force parties to choose between independent and coordinated spending, and by suggesting that the legal path might not be completely clear for non-party political committees to accept soft money, the Court gave party optimists even more reason to be hopeful. This article argues that parties may well be able to raise and spend enough hard money to make up for the loss of soft money, and non-party groups may face significant obstacles to becoming major funding rivals to the parties. The analysis concludes with implications of the Court’s decision for presidential public funding and spending limits. To clear away some easy debater’s points, let us begin by acknowledging the obvious. The six major party national committees raised almost $500 million in soft money in 2001–2002. This was more than 40% of their total receipts. If they cannot replace what they lose, having less money is bound to hurt. With that out of the way we can get to more interesting questions:

BCRA and McConnell in Perspective

Abstract: 277 THE BIPARTISAN CAMPAIGN REFORM ACT (BCRA) “represented the most far-reaching and controversial attempt to restructure the national political process in a generation.”2 McConnell v. FEC3 “is certainly the most important campaign finance case since Buckley v. Valeo[4] . . . .”5 These assertions, put forth in this Symposium by one of our more level-headed election law scholars, are representative of much that has been said, formally and informally, since McConnell was handed down on December 10, 2003. Each is true—or arguably so—but neither says as much as may at first appear. Yes, BCRA is the most far-reaching overhaul of the national election process in a generation, but that is because it is the only such overhaul in a generation. The last significant amendments to the Federal Election Campaign Act (FECA) occurred in 1979. Their main purpose was to liberalize restrictions on party campaign activity that had been found to have a stultifying effect in the 1976 presidential election. BCRA’s proudest achievement, according to its supporters, is to wipe out those very liberalizations and impose new and even more onerous restrictions. Whether McConnell is the most important campaign finance decision since Buckley is hard to say, because one would have to ask, important for what purpose? Is it more important for the Supreme Court to ratify a ban on corporate and labor union contributions to the national political parties, or for the Court to give constitutional protection to corporations’ ability to contribute millions to support or defeat a ballot measure?6 If you work on Capitol Hill, you will probably say the former, but some of us here in California might say the latter. In any event, McConnell pales next to Buckley, even if it stands out among Buckley’s progeny. The most obvious reason BCRA and McConnell seem so very important right now is that they are so close to us in time. Author after author in this Symposium quite rightly comments that time must pass before we will be able to appreciate BCRA’s and McConnell’s consequences. But for the moment, their prospect looms large. Another reason is that in certain ways, McConnell looks like Buckley. Each case reviewed numerous provisions in highly complex federal legislation that had never gone into effect through an election cycle. In each case, Congress established a special litigation procedure with expedited review in the

Putting an End to Push Polling: Why It Should Be Banned and Why the First Amendment Lets Congress Ban It

Abstract: 37 POLLING HAS LONG BEEN an integral part of a robust democracy. It allows politicians and citizens to measure the pulse of public opinion on issues, and it allows candidates to gauge the strengths and weaknesses of both themselves and their opponents. As George Gallup and Saul Rae wrote more than sixty years ago, “The best guarantee for the maintenance of a vigorous democratic life lies not in concealing what people think, but in trying to find out what their ultimate purposes are, and in seeking to incorporate these purposes in legislation.”1 Unfortunately, an increasing number of pollsters and candidates are resorting to a particularly unscrupulous negative campaign technique called “push polling.” Push polls are not really polls at all; their object is not to measure public opinion, but to manipulate it by providing as many “respondents” as possible with hypothetical, sometimes blatantly false information, about candidates, political parties or initiatives. Push polling has a detrimental effect on democracy because it makes people question the validity of legitimate polling and, more importantly, adds to many people’s beliefs that politics is dirty, politicians are corrupt, and the electoral process is flawed.2 Furthermore, the practice is fraudulent: it misleads the listener as to the identity, purpose and reliability of the caller, and it is often used to falsely tarnish the reputation of political opponents. As a result, the U.S. House of Representatives and many state legislatures have tried to pass—or have passed—laws designed to restrict push polling. We argue that these laws are mostly ineffective and instead advocate a complete ban on the practice of push polling. Such a ban, as we would construct it, would be a constitutionally permissible ban on fraudulent/knowingly false speech. We begin with a discussion of what push polling is and the efforts that legislatures have made to limit its use. We then suggest legislation that would ban push polling completely and argue that this legislation passes constitutional muster.

Looking for Standards (in All the Wrong Places): Partisan Gerrymandering Claims after Vieth

Abstract: In 1986, the Supreme Court held that it would entertain claims that a legislative decision to redistrict legislative seats to give unfair advantage to one major political party over the other could violate the United States Constitution's Equal Protection Clause. But the Court's fractured decision in Davis v. Bandemer that such "partisan gerrymandering" claims were justiciable resulted in virtually no successful claims in the lower courts.In Vieth v. Jubelirer, 124 S. Ct. 1769 (2004), the Court revisited the issue. The case was a 4-1-4 split. Four Justices signed a plurality opinion stating the view that partisan gerrymandering claims should be considered nonjusticiable because of the absence of a "judicially manageable" standard for separating permissible from impermissible consideration of party affiliation of voters in the redistricting enterprise. Four Justices would have adopted one of three invigorated tests to police partisan gerrymandering. Justice Kennedy, writing only for himself, agreed with the four dissenters that partisan gerrymandering cases remain justiciable. But he also agreed with the four Justices in the plurality that the Vieth plaintiffs' claim must fail because no one has articulated thus far judicially manageable standards for partisan gerrymandering claims. He suggested a standard might emerge from historical discussions of districting practices, better computer technology, or shifting to a First Amendment analysis.Part I of this Article surveys the five opinions in Vieth, focusing on Justice Kennedy's pivotal opinion. Part II explains why Justice Kennedy is unlikely to find a judicially manageable standard for partisan gerrymandering in history, technology, or the First Amendment, given his rejection of vote dilution, expressive harm, conflict of interest, and improper motive tests proposed by the Vieth plaintiffs and dissenters. Finally, Part III endorses Justice Kennedy's decision to leave the door open to future partisan gerrymandering cases. It explains that the judicial manageability debate in Vieth conflates two separate concerns: one about consistency of result across the courts and a second about the justifiability of a standard for judging partisan gerrymandering claims. The consistency of result concern is overblown, because the Court could rather easily come up with an easily administrable partisan gerrymandering standard. But the Court should refrain from coming up with such a standard until it could be justified by an emerging social consensus regarding proper and improper consideration of voter party identification in redistricting. If consensus emerges, the Court may embrace it. Until then, the matter should be left to the political processes, which have a number of tools to control egregious partisan behavior.

Georgia v. Ashcroft and the Retrogression of Retrogression

Abstract: 21 SECTION 5 OF THE VOTING RIGHTS ACT OF 19651 has served as a major legal engine for transforming American democracy over the last forty years. Its power stems from two modifications of the conventional legal process for safeguarding minority voting rights. First, section 5 forbids covered jurisdictions2 from making any changes in their election laws unless and until the laws first receive federal approval,3 and places the burden of proving that the new law will have neither a discriminatory purpose nor a discriminatory effect on the covered jurisdiction. The preclearance requirement “shifts the advantage of time and inertia from the perpetrators of the evil to its victims.”4 Second, section 5 contains a natural benchmark that preserves the political gains minority voters have achieved through political or legal action. The preclearance process measures a proposed voting practice or procedure against the existing scheme to determine whether the change will “lead to a retrogression with respect to [minority voters’] exercise of the electoral franchise.”5 Thus, “the baseline is the status quo that is proposed to be changed.”6 The presence of an “objective and workable standard for choosing a reasonable benchmark”7 reassured the Court that section 5 judgments would not embroil the courts or the executive branch in unguided interference with the political process. This essay discusses last term’s decision in Georgia v. Ashcroft.8 The Court’s opinion fundamentally alters the preclearance process in disturbing ways. For several years, the Supreme Court has been expressing concern

Reclaiming Our Democracy: The Way Forward

Abstract: 115 AFTER SEVEN YEARS of legislation and litigation and, finally, a landmark decision by the United States Supreme Court, those of us who care about campaign finance reform find ourselves at a unique moment of opportunity. Now that the dust has settled, it has become clear that a majority of the Justices did much more in McConnell v. FEC1 than uphold the Bipartisan Campaign Reform Act of 2002 (BCRA). The Court saw the same stark dangers the law’s congressional supporters perceived in the flood of unlimited cash payments by corporations, labor unions and wealthy individuals that was washing through the offices of party leaders and elected officials in Washington. The justices recognized that the widespread use of corporate and labor funds for political advertising featuring federal candidates in the midst of campaigns made a mockery of the longstanding ban on the use of these funds in federal elections. And, most critically, the Court recognized that these practices have gravely diminished public confidence in the honest functioning of our democratic system of government. These holdings, and the Court’s clear rationale for its conclusions, supply the principles that will serve as a roadmap for the next steps in our fight to reclaim this nation’s democracy for all of its citizens. The goal of BCRA was simple and straightforward: to break the corrupting relationship that had developed through campaign contributions between corporate and labor special interests and the wealthiest individuals, on the one hand, and the government officials who make public policy on the other. But even that important step is in the service of a more fundamental purpose: to restore the American people’s faith that their government belongs to them, and not only to those who can afford enormous payments to parties and candidates. That faith, badly damaged these past years, is the indispensable element of a working democracy. Without it, citizens’ incentive to participate in the civic life of their own nation will shrink to the vanishing point. And no democracy can live with that loss. Now that we have crossed the initial threshold of passing a campaign finance reform law that the Supreme Court has firmly upheld, we need to do much more to return political power to ordinary citizens. To do that, we must work toward a system of campaign finance law in which the incentives favor real candidate competition and real engagement with the American people. And those laws must be fully and fairly enforced. The principles in McConnell v. FEC set the predicate for these necessary next steps.

Mexico's Search for Credibility

Abstract: only nationwide political parties, with a minimum of 30,000 members distributed among at least two thirds of the federal entities, could apply for legal registration, allowing them to nominate candidates and compete for public office.2 Local or state parties could only be registered and participate at the state level. This change created a system in which political parties maintained a monopolistic power to nominate candidates. Over the next forty-five years, elections in Mexico were organized under this system, in which they were a governmental responsibility and were conducted by a party-based electoral commission.3 The most salient characteristic of this form of electoral administration was that although federal electoral contests were organized every three years, everyone knew that they were a mere ritual to formally sanction what the government and the ruling party (the Institutional Revolutionary Party, PRI) had previously decided. In other words, elections were not politically relevant. However, during