November 24, 2018

New Directions for Election Law Reform


Photo by Joe Shlabotnik, Flickr, Creative Commons


House Democrats have signaled that their first proposed legislation will be addressing the voting process and government ethics.


By Richard H. Pildes, J.D. / 11.19.2018
Sudler Family Professor of Constitutional Law
NYU Law School


House Democrats have signaled that their first proposed legislation once they assume power will be a “magnum opus of provisions” addressing the voting process and government ethics.  In discussing such legislation, the first question is whether the bill we are considering will be primarily about messaging or about actually legislating.

As Frances Lee has demonstrated in one of the best recent books on Congress, Insecure Majorities: Congress and the Perpetual Campaignwhen Congress is as closely divided as it has been in recent years, and when partisan control of the Senate and the Presidency are perceived as up for grabs in nearly every election as well, a far larger proportion of the actions of the House majority (under both Republican and Democratic control) has unfortunately shifted from legislating to messaging.

When focused on messaging, bills are not designed with the realistic aim of overcoming the various institutional and political hurdles facing bills designed to be enacted into law.  Instead, bills are passed to position the party in control of the House to be able to hold their House majority in yet the next election, and to position the party to capture control of the Senate and the Presidency in those upcoming elections.  Proposed bills are like a perpetual motion machine, one after another being churned out in the hopes that one day the party will control enough of the governance structure to then turn to proposals that might become law.

Not surprisingly, given a Republican-controlled Senate and White House, Democrats have already signaled that their voting-rights bill would indeed be about messaging.  As an important figure on campaign-finance issues in the House, Rep. John Sarbanes of Maryland, has said:  H.R.1 will be designed to signal, “Give us the gavel in the Senate in 2020 and we’ll pass it in the Senate.” Sarbanes added, “Give us a pen in the Oval Office and we’ll sign those kinds of reforms into law.”

That is messaging talk, not legislative talk.  The proposed legislation will thus be a Democratic Party wish-list of election reforms, written to please the audience Democrats are most trying to satisfy symbolically.  If Democrats were seeking legislation that might potentially get enacted in current circumstances, they could focus on the small-bore, but not unimportant, reforms recommended by the 2014 bipartisan report of the Presidential Commission on Election Administration.  But precisely because these are more consensual  and narrowly targeted (which is not to say Senate Republicans would agree with all of them), such legislation will not satisfy Democrats’ primary objective of signaling the more dramatic changes they would make if they had full control.

Rather than contribute to a Democratic wish-list of voting reforms, many of which have been written about widely in the last several years in any event, I want to offer a couple of less familiar suggestions.  Perhaps putting these ideas into the mix now will prompt more discussion of them in the years before any national legislation is possible, and the first two  of these ideas could be implemented now in supportive states.

Expand Disclosure Laws and Raise the Threshold for Requiring Disclosure of Individual Contributions

First, in the campaign finance area, Democrats will undoubtedly pursue more comprehensive disclosure laws to cover currently-undisclosed large contributions to groups that engage in election spending.  I support that, but I would couple it with a significant increase in the dollar level at which the names of individualcontributors to campaigns must be disclosed.

In the federal system, we haven’t updated these levels since contribution caps were first imposed in the 1970s.  In political terms, that’s not surprising, even if it makes no sense as a matter of policy:  politicians who vote to increase disclosure thresholds will surely be accused of supporting corruption.

But for federal elections, that disclosure level was initially set at $200, and that is where it remains today.  In twenty-first century presidential campaigns that frequently spend about $1 billion, there simply is no risk of political corruption from $200 contributions.  Yet now that anyone can immediately access the names of contributors to all federal races through the internet, the cost-benefit ratio of disclosure at such low levels has been altered, particularly in our hyper-polarized political environment.  There’s too great a risk that people will lose jobs (as some already have), or not be hired (even when this is illegal), or be sanctioned in other ways, because of the candidates or causes they have financially supported.

Raising current disclosure thresholds supports democracy:  People should not be punished for their contributions to candidates or causes any more than they should be for how they vote.  Some people are also chilled and won’t contribute above $200 because they do not want their identities easily accessible to all.  At high contribution levels, of course, where the risk of corrupting influence is real, disclosure is still necessary and justified, despite the costs and risks involved.  But current requirements for federal elections are well below that level.  There’s also a pragmatic reason to raise these thresholds.  As more stories emerge about people being punished for relatively low-levels of political contributions, there is a risk, in my view, that more Justices on the Supreme Court will come to the view that disclosure laws are unconstitutional.  Raising those levels to where corruptions concerns are real reduces that risk.

In addition, we might consider a regime of semi-disclosure for lower contributions.  Such a regime would disclose only aggregate information for such contributions, such as which sectors of the economy these contributions come from or from what geographic areas, without identifying individual names.  There are informational benefits to voters knowing, for example, that a candidate gets X percent of her money from the real-estate industry or from out-of-state.  But that information does not require disclosure of individual identities.  State disclosure regimes could be similarly updated and modified.

Focus Public Financing on Supporting Political Parties, Not Solely Candidates

Second, Democrats will likely seek voluntary public financing of national elections in the form of matching funds provided for small contributions. We can see this in the “Government By the People Act” that Rep. Sarbanes has already introduced.

I’m inclined to think straight public financing, rather than these matching programs, is better policy, because I worry that small contributors fuel political polarization; individual donors, in general, are among the most polarizing sources of money in elections, and small donors do not appear to be an exception.  But it might well be more politically feasible to enact a matching program rather than a straight public financing system.

Either way, these systems should be designed, in ways they currently are not, to enable more of the public dollars to go to the political parties.  Right now, we have a candidate-centered system of public financing, including the matching programs that exist.  This encourages candidates and officeholders to be independent free agents.  I believe that the democratic process works best, particularly in our separated powers system, when we have strong political parties and party leaders who have the tools to bring along recalcitrant party members to support legislative compromises.  We need to be careful about fragmenting our political system even more.  So for matching programs, perhaps something like 25% of the matching funds should go to the political party committee of the candidate’s party (this would turn matching fund programs into a version of the joint fundraising committees that now exist for the raising of private contributions).     Most campaign-finance changes are likely to take place at the state level for now, and states that adopt or have adopted forms of public financing could move in this direction.

A Separate, Uniform Ballot for National Elections

Third, as the latest debacle in ballot design from Broward County demonstrates yet again, one of the always-waiting-to-happen-disasters is a crisis resulting from our hyper-decentralized election system, even for national elections. This is a dysfunctional remnant from the history of how our voting system evolved. Even for national elections, we have individual counties designing the ballot for presidential, Senate, and House races.

We should have a separate ballot for national elections and Congress should mandate that it be uniform in each state. Is bipartisan agreement possible on this? Congress has the constitutional power to design a single national ballot for national elections. But that would also require nationalizing the rules for access to the ballot—including the rules that govern what independent or third-party candidates must do to get on the ballot.

Unless we are prepared to nationalize these rules, which I doubt, Congress can instead at least require a separate federal ballot for national elections that is uniform at the state level.  With the much higher visibility that would provide, the political parties and other groups are more likely to catch mistakes before they happen than when they must attempt to monitor thousands of individual counties.  Just as the Help America Vote Act moved the registration process up to the state level, we should move other aspects to the state level as well, particularly for national elections.

Conclusion

These suggestions are not meant to identify the most important issues national legislation might tackle.  I have written elsewhere, for example, about how I would more effectively protect the right to vote: namely, by shifting from the race-based, anti-discrimination model to a more general, universal form of legislation that eliminates all unjustified and unnecessary restrictions on the vote, regardless of which groups they burden.  But the suggestions here are designed to provoke thought along less familiar lines among voting reformers.


Originally published by Take Care under the terms of a Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International license.

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