March 24, 2016: This story has been clarified.
Campaign finance reform has become a major issue in the presidential race — at least on the Democratic side — but even if Hillary Clinton or Bernie Sanders were able to win the White House, a wholesale overhaul of the current system would take a lot more than a president alone.
“Anyone promising that the world will be completely different immediately is blowing smoke to a certain extent,” said Daniel Weiner, a senior counsel at the Brennan Center for Justice, which advocates for campaign finance reform. “Our campaign finance infrastructure and our overall electoral infrastructure turn like an aircraft carrier — slowly and cumbersomely.”
Sanders, especially, has made his push to rebuild what he frequently describes as a “corrupt campaign finance system” the centerpiece of his campaign, and he frequently repudiates assistance from super PACs as a sign of his commitment to the issue.
His chances of winning the nomination have faded as Clinton has racked up a nearly insurmountable lead of delegates. Regardless, Sanders has pushed money in politics to the fore of the battle for the Democratic nomination, and will arrive at the convention in Philadelphia with enough delegates to wield some leverage.
He and Clinton have put forth substantially similar proposals on campaign finance, both of which draw from proposals by reform groups and on proposed legislation. But making those agendas a reality will depend heavily on the new president’s ability to wrangle cooperation from Congress, other executive agencies and even state legislatures. Complicating matters further, reform advocates are divided about what must be done.
A few measures, such as an executive order requiring federal contractors to disclose all political spending, or appointing new commissioners to the Federal Election Commission who favor increased enforcement, are under the president’s control.
But most of the proposals in both candidates’ policy agendas will be a stretch.
“A president cannot pass a constitutional amendment. A president cannot pass a public financing statute through Congress. A president needs lots of cooperation.”
Paul Ryan, deputy executive director of the Campaign Legal Center
Lots of cooperation needed
Both candidates have proposed a public financing system that would amplify small contributions, something that Congress must approve. The impact of such a proposal would depend heavily on its details.
Both have promised to nominate Supreme Court justices who support overturning the Supreme Court’s 2010 decision in Citizens United v. FEC. In addition, they’ve committed to push for a constitutional amendment overturning it — something that would require approval from Congress and the states.
Both have said they would prod federal agencies such as the Securities and Exchange Commission— which are independent, and don’t have to listen — to create new rules requiring political spending disclosure.
“I feel compelled to point out the obvious,” said Paul Ryan, deputy executive director of the Campaign Legal Center, a nonpartisan group specializing in campaign finance issues, somewhat dryly. “A president cannot pass a constitutional amendment. A president cannot pass a public financing statute through Congress. A president needs lots of cooperation.”
The president would also have to be willing to expend enormous amounts of political capital on changing the campaign finance system.
The new president will have to mobilize a grassroots effort and take steps to highlight the issue immediately upon taking office, said John Bonifaz, the president of Free Speech for People, a Texas-based group that advocates for a constitutional amendment to overturn Citizens United, as well as other reforms.
“It needs to be put down as a marker for what’s going to be major priorities of the administration in the first 100 days,” he said, via methods such as major policy speeches around the country.
“On these kinds of reforms, it requires all of the American people stepping up” to keep the pressure on, he said.
The ‘intensity gap’
While Clinton and Sanders have substantially similar proposals to reform the system, the former secretary of state is seen by some as being less committed to a campaign finance overhaul. Sanders has fueled the distinction by pointing to her willingness to accept aid from outside groups that can raise and spend unlimited amounts of money.
“I don’t know that there’s a lot of daylight between them on what they propose, but there’s a huge intensity gap,” said Richard Hasen, a professor of law and political science at the University of California at Irvine and an expert on campaign finance.
Clinton has fought back against the suggestion that she isn’t committed to changes.
“Hillary Clinton has made campaign finance reform a top priority since day one and regularly talks about it on the trail, in interviews and on the debate stage,” said Josh Schwerin, a spokesman for the Clinton campaign, in an email. “When she first announced her campaign, she framed her priorities as ‘four fights,’ and campaign finance reform was one of those fights.”
The Sanders campaign did not respond to requests for comment.
Some of Clinton and Sanders’ sharpest exchanges have been over matters of money in politics.
In a March debate, for example, Sanders again referred to the nation’s “corrupt campaign finance system,” adding, “instead of standing up to that finance system, Secretary Clinton has a super PAC, which is raising huge amounts … a lot of money from Wall Street and from the fossil fuel industry. I am doing it a different way.”
For her part, in a February speech conceding to Sanders in New Hampshire, Clinton made the case that her opposition to Citizens United — the 2010 U.S. Supreme Court decision that led to the creation of super PACs and “dark money” groups — was deep and personal.
“Now, Senator Sanders and I both want to get secret, unaccountable money out of politics, and let’s remember, let’s remember, Citizens United, one of the worst Supreme Court decisions in our country’s history, was actually a case about a right-wing attack on me and my campaign,” she said. “A right-wing organization took aim at me and ended up damaging our entire democracy. So, yes, you’re not going to find anybody more committed to aggressive campaign finance reform than me.”
The Citizens United ruling came about after Citizens United, the conservative nonprofit group for which the case was named, produced a 90-minute documentary about Clinton that was released during the 2008 primary season. The FEC characterized the documentary as an electioneering communication subject to regulation, and Citizens United sued, precipitating the eventual Supreme Court decision.
“Our campaign finance infrastructure and our overall electoral infrastructure turn like an aircraft carrier — slowly and cumbersomely.”
Daniel Weiner, Brennan Center for Justice attorney
Not a bipartisan issue, yet
Both Democrats give campaign finance and their policy proposals prime placement on their campaign websites — a sharp contrast to the three remaining Republican candidates, none of whom highlight it online at all.
That brings up another hurdle.
“The ultimate solutions will be bipartisan and it will be supported by both parties because that’s the only way campaign finance reforms ever happen,” said Scott Swenson, a spokesman for advocacy group Common Cause.
Although Republican front-runner Donald Trump has criticized the influence of money in politics and other Republican candidates have slammed the current system, none have published detailed reform agendas.
The Republican-controlled Congress has so far opposed measures to change campaign finance laws.
But John Pudner, a former Republican political consultant who now heads a nonprofit group focused on money’s role in politics, Take Back Our Republic, said he’s seen some encouraging comments from Republican candidates and lawmakers, and he thinks some are considering laying out a platform.
“Campaign finance and money in politics has become such a hot issue that everyone is realizing that if one side is talking about it and the other isn’t, that’s going to hurt the side that isn’t,” he said.
Pudner said he thinks there’s room for compromise proposals. For instance, Republicans might oppose public financing but support a plan for tax credits, he said.
Still, a consensus proposal isn’t imminent.
David Keating, president of the Center for Competitive Politics, a nonpartisan group that describes its mission as promoting First Amendment rights, said the proposals laid out by Clinton and Sanders “are all bad ideas.”
Keating said having agencies like the Securities and Exchange Commission police political disclosure distracts from their core missions and forces them outside their expertise, leading to potential problems like the Internal Revenue Service scandal.
In that case, more than 100 groups seeking tax-exempt recognition that were deemed to be potentially political by the IRS waited more than a year for answers from the agency, according to a May 2013 report by the Treasury Inspector General for Tax Administration.
The inspector general’s report prompted multiple congressional investigations and the resignation or retirement of several IRS officials, including Lois Lerner, who led the IRS division responsible for overseeing tax-exempt organizations.
Keating also argues a public financing program that creates a match or incentive for small donations or campaign finance vouchers could be ripe for abuse.
“Anytime the government is handing out $6 for every $1, you’re going to see scandals,” he said. “It may even result in people having less trust in government than they do today.”
Weiner and Ryan, who said they support public financing, said much of the effectiveness of such a proposal would depend on the details of how it is crafted.
Amendment ‘a dreadful idea’
Opposition to a constitutional amendment is even more widespread, with some saying it isn’t practical. Others say it would lead to more problems than it solves.
Joel Gora, a Brooklyn Law School professor who, on behalf of the American Civil Liberties Union, worked on campaign finance cases including the landmark Buckley v. Valeo Supreme Court case, called a constitutional amendment to overturn Buckley and Citizens United “a dreadful idea.”
Any such amendment, “basically would cut the heart out of the First Amendment,” he said.
Other groups, such as the Campaign Legal Center and the Brennan Center, strongly support public financing programs but oppose or haven’t taken a position on a constitutional amendment. They say their preferred route would be overturning Citizens United via a new ruling by the Supreme Court.
Several expressed concerns about modifying First Amendment rights and the difficult path an amendment would have to take. Hasen, for example, called it “a political nonstarter.”
Ryan called a constitutional amendment “impractical.”
Almost everyone who works on campaign finance is skeptical of campaign promises to make money in politics a priority. A common refrain: President Obama’s failure to nominate new commissioners to the Federal Election Commission — five of the agency’s six commissioners are still serving despite their terms having expired — and decision to not yet issue an executive order requiring government contractors to disclose political spending.
“That’s the million-dollar question. Is his successor actually going to prioritize this issue, or is it going to be a replay of this administration, where his successor pays lip service and then ignores it?” asked the Brennan Center’s Weiner.
Fred Wertheimer of Democracy 21, another reform group, agreed.
“We would like to see commitments that, if elected, they will take this issue to the country and promote it as a national priority,” he said, through steps like including it in high-profile speeches such as the new president’s inaugural address and the State of the Union.
Wertheimer, who has worked on campaign finance measures for decades, says he isn’t deterred by the difficulty of the task.
“The thing about campaign finance reform is, it’s impossible to do until you get it done,” he said. “You can’t do Logic 101 and come to the conclusion why members of Congress are going to enact a new system that may be not beneficial to them, but we have done it in the past. It’s hard work and it takes time, and you have to make sure that when you get reform proposals enacted, they’re going to work.”
John Dunbar contributed to this story.
March 24, 2016: This story was updated to restore the word “carrier” to a quote from Daniel Weiner. It now says aircraft carrier, not just aircraft.