Article III Section 1 of the U.S. constitution outlines that Supreme Court justices are to “hold their offices during good Behaviour”, a phrase which framer Alexander Hamilton in Federalist No. 78 explained means “for life”. A justice can either die on the bench, retire, or be removed from office after committing an impeachable offense; otherwise, justices can remain on the Court as long as they please. Hamilton argued that life terms promote an independent court free from the influences of the political branches or the public, but his logic has been called into question numerous times throughout American history. Even before the constitution was ratified, Anti-Federalists attacked life terms for making the judiciary too independent, and calls for limiting life tenure emerged throughout the 19th and 20th centuries. This debate has rekindled within the last decade, raising questions about the Supreme Court’s alignment with principles of democratic governance. Two pieces of legislation, one from the House of Representatives and one from the Senate, were proposed in the previous session of Congress that would impose term limits for justices.
Senate bill 4706 and House bill 8500, proposed by Democratic Senator Sheldon Whitehouse (RI) and Democratic Representative Hank Johnson (GA-4), would restrict the terms of Supreme Court justices to 18 years. They would also regulate the appointment process: each president would nominate only two justices in the first and third years of his/her term. Finally, they introduce a special brand of “senior status” to the Supreme Court. Justices that finish their 18-year term would retire from active duty, but still hold their office and receive full compensation. Proponents of term limits argue that relegating justices to senior status allows these statutes to skirt the constitutional provision permitting justices to serve for life. However, many proponents would also support a constitutional amendment to achieve the same ends.
Arguments for term limits
Those who seek to enact term limits on Supreme Court justice center on three different observations/arguments:
The Court has lost its institutional legitimacy in the eyes of the public
The Court’s current membership, its decisions, and the selection process have become excessively partisan
All other high-functioning democracies have high courts with term limits
Proponents of the bills believe the Court has grown increasingly out of touch with the American public in recent decades, and they cite a number of polls to back that assertion. They claim that most Americans say the Supreme Court is disconnected from modern values and beliefs, believe the Court makes its decisions based on the political leanings of justices rather than the rule of law, and lack confidence in the institution. A specific example of distrust in the Court is the widespread disagreement with the Court’s recent decision in Dobbs v. Jackson Women’s Health Organization, the ruling that overturned Roe v. Wade, and removed the constitutional right to abortion. They further emphasize that term limits have support across the political spectrum: 82% of Democrats, 57% of Republicans, and 51% of Independents called for term limits in one poll.
Why do Americans feel this way? Proponents point to two facts. Article II Section 2 of the U.S. constitution gives the president the power to appoint justices to the Supreme Court, who then must be vetted and confirmed by the Senate. Five of the nine justices on the current Court (all ideologically conservative) were appointed by presidents who lost the popular vote. Proponents argue, then, that such presidents, who do not reflect the will of the majority of Americans, will in turn nominate unrepresentative justices. This is part of a larger argument around political representation. Secondly, justices rarely die on the bench anymore and are serving longer terms than ever before. Since 1970, the average tenure of a justice has been 26.1 years—a significant increase from the average of 14.9 years before 1970. With less frequent vacancies on the Court, the appointment process, which acts as a democratic check on the Court’s membership, is less effective.
The second argument put forth by proponents of these bills is that term limits will help depoliticize both the ideological makeup of the Court as well as the appointment process. Donald Trump appointed three justices to the Court in just one term, while others like George W. Bush, who served two terms, only appointed two; Jimmy Carter appointed none. Supporters posit that giving each president only two spots to fill during a four year term would create a more equitable system that would help to ideologically balance the Court as party control of the White House changes, and ensure it more closely resembles public opinion. Proponents also contend that a more predictable system would put less pressure on each pick, serving to dial down the fervor of confirmation hearings, which have been a major source of partisan conflict.
Finally, supporters of term limits argue that they would keep America in tune with other Western democracies who have similar policies. 46 states and Washington D.C. have term limits for members of their high courts; three others have age limits, and only Rhode Island permits life tenure. In these systems, after serving a term, a justice must be reappointed or re-elected, processes that work as democratic checks. Across the globe, countries like Australia, New Zealand, Israel, and the U.K. require justices to retire at age 70. Germany allows its federal judges to serve only 12 years.
Arguments against term limits
Those who oppose the enacting term limits make three primary arguments:
Term limits would threaten the Court’s stability and independence
Term limits would increase political polarization
Term limits are unconstitutional.
The doctrine of stare decisis, which means “let the decision stand” in Latin, generally governs the Court’s jurisprudence. The legal model of judicial decision making argues that Court decisions are based on stare decisis and an adherence to precedent (previous rulings), the constitution, and applicable laws, which promotes stability and predictability. Opponents believe that the more regular shifting of the Court’s ideological makeup would wreak havoc on the stability of its legal doctrine. As an example, one study using computer simulations, assuming moderately loyal justices with no deference to precedent, estimated that if term limits existed from the beginning of the U.S., Roe would have been overruled and reinstated three times in just a few decades. Opponents believe that a regular influx of new justices will cause a fluctuation of precedent and turn the Supreme Court into a lawmaking body.
Furthermore, although many polls show that a majority of Americans support enacting term limits, opponents would argue that the Supreme Court was never meant to reflect the will of the majority. Instead, as Alexander Hamilton argued in Federalist No. 78, the Supreme Court’s greatest asset is its independence from the influence of the political institutions and the public. They say that the Supreme Court is meant to base its decisions on the Constitution, federal statutes, and, ultimately, the rule of law; therefore, supporters of term limits, who want to rein in an “out of touch” Supreme Court, are ignoring the very principles the institution was founded on.
Opponents also argue that enacting term limits would intensify political polarization. For one, they say that an increase in turnover would merely increase the frequency of confirmation hearings and the partisan debate that accompanies them. They contend that presidential elections, with the knowledge that two Supreme Court seats would be tied to each four-year term, could devolve into a referendum on which individuals should be nominated to the Court. They point out that two-term presidents would be able to select 44% of the Court, and if a single party strung together three or four presidential terms, they could swiftly gain ideological control of the Court. All of this is assuming that the appointment process would go over smoothly, too. Opponents also argue that regularly staggered term limits would give a Senate controlled by the party opposite the president incentive to indefinitely delay or block justice confirmations, leaving the Court shorthanded.
Finally, opponents argue that the proposed legislation would be unconstitutional. They argue that the relegation of retired justices to a new form of senior status runs afoul to the constitutional provision allowing justices to serve “in good behavior.” Only a constitutional amendment could enforce term limits on Supreme Court justices, which is impractical in today’s political climate. Moreover, they suggest that allowing Congress to make such reform statutorily could empower it to alter the federal judiciary in other dangerous ways.
The Supplemental Nutrition Assistance Program, or SNAP (formerly labeled food stamps, and often still referred to as such), is an American federal food assistance program that provides credits to people that may be used to purchase food items. Funding for the program is covered fully by the federal government, though states are responsible for administering the program, and for some of the administration costs. The program was expanded, starting in the spring of 2020, in order to address increased food insecurity brought on by COVID-19. These pandemic-era expansions of the program have illuminated significant debate about the future direction of the program.
Some have placed emphasis on maximizing SNAP’s ability to combat food insecurity, while others have expressed concerns about ensuring that the program does not overly disincentivize work or contribute to a lack of self-sufficiency. Pandemic-era expansions of SNAP in 2020 and 2021 have added fuel to these questions on both sides of the policy discussion, although these debates have been around for decades.
At the program’s inception in 1939, and its second iteration in the early 1960s, food stamp recipients were required to purchase stamps equaling their normal food expenditure, and would receive, in the form of the stamps, the ability to purchase more food than they would normally have been able to purchase with that sum. Some criticized the requirement, arguing that it placed limits on participation, and it was removed by the Food and Agriculture Act of 1977, leading to an increase in participation.The act also established more regulation on the availability of food stamps. For example, it included a penalty for stamp recipients who voluntarily quit their jobs without good cause. This penalty has persisted in SNAP’s general work requirement. Those who do not meet the work requirements can be suspended from the SNAP program for a month or more.
COVID-19 Pandemic Era Expansions
The pandemic-era relief packages passed by Congress included the following changes:
and the partial suspension of the Able Bodied Americans Without Dependents (ABAWD) work requirement. The ABAWD work requirement is aimed at Americans who do not have dependents and are considered able-bodied. Those who are subject to this requirement must complete at least 80 hours of work or work training per month.
While all of these measures have technically been temporary, there was also a permanent increase in SNAP’s maximum allotment in 2021 through a program called the Thrifty Food Plan (TFP). The re-evaluation of the TFP was mandated by the 2018 Farm Bill, which required that the TFP be reassessed to be better representative of the cost of a healthy diet. The TFP re-evaluation raised the maximum allotment by 21%, though other publications have pegged the increase at over 25%, perhaps due to differences in calculation.
Concerns about SNAP’s impact on employment and self-sufficiency
The employment-incentive-focused side of the SNAP debate is most contentious when discussing the TFP permanent increase in the maximum allotment, and the temporary and partial suspension of the ABAWD work requirement. One element of controversy are discretionary exemptions, which allow states to exempt one ABAWD from the ABAWD work requirements for a month. States receive a limited number of exemptions, and these can be carried over into subsequent fiscal years. It has been argued that as the current suspension of the ABAWD work requirement makes the use of these discretionary exemptions redundant, states will store up their discretionary exemptions and, once the national public health emergency declaration has ended, use them to exempt a high number of ABAWDs.
SNAP work disincentives have been alleged to contribute to a host of negative outcomes, including interfering with economic recovery, and contributing to a shortage of labor. One study published in Labour Economics found that access to SNAP decreased the rate at which single women were employed by 6%, and caused married men to reduce the hours they worked by 5%.
Concerns about increasing food security
However, other studies report contrary results. Another study from the Association for Public Policy Analysis and Management found that SNAP increased the labor participation of participants by around 5%, and increased their yearly hours worked by 47 hours per year. They attributed this mostly to the ABAWD work requirement and reason that it increases workforce participation.
Additionally, it has been argued that SNAP’s benefits structure is designed to reduce the work disincentives that some allege emerge when recipients of welfare benefits lose those benefits as a result of increases in income. Because SNAP is designed to gradually reduce benefits with rises in income, and includes an income deduction that further reduces the amount of benefits that are lost with increases in income, there is less risk of SNAP participants being dissuaded from working for fear of an abrupt loss of benefits. There is an income threshold, past which SNAP recipients will lose SNAP benefits, but because of this gradual reduction in benefits, the loss is not a large one.
A vocal group of supporters of SNAP are calling for extended or permanent expansions of the SNAP benefits that were implemented in the early months of the pandemic. This perspective praises the TFP permanent increase in the maximum allotment, as well as the temporary suspension of the ABAWD work requirement, as providing a necessary increase in the program’s ability to improve the food security of recipients. The program has been shown to have a significant impact on food insecurity—it brings down overall food insecurity by as much as 30%—but the Urban Institute, an economic and social policy-research think-tank, found that before the TFP increase, the average maximum SNAP allotment (which varies based on household size), covered the cost of a modestly priced meal in 4% of the counties in the contiguous United States. The study found that after the increase, the average maximum SNAP allotment covered the cost of a modestly priced meal in 79% of US counties. Some posit that this is still insufficient, and that more should be done to combat food insecurity.
It has also been argued that available research shows the requirements do not have a meaningful impact on employment. A recent report by the U.S. Department of Agriculture (USDA) analyzed nine states and found that the ABAWD work requirement reduced SNAP enrollment. The amount of reduction varied based on the state, from a 5% decrease in some Colorado counties to a 41% decrease in Vermont. However, the study found that a large portion of those subject to the ABAWD work requirement were found to be unemployed four quarters after the requirement was implemented. This contradicts the findings of previously mentionedstudies and demonstrates a large potential for future research on the subject.
The pandemic era expansions of SNAP have illuminated one of the policy debates that has guided the program since its beginning: differing ideas about what recipients should have to do in order to receive SNAP, and how much they should receive. The core of the debate is grounded in differing ideas about the role that government should play in providing resources to citizens to help people better support themselves. This debate will continue to drive the development of future discussions around SNAP.
Checks and balancesrefers to a system of government allowing separate government branches to “check” or overturn acts of one branch if those acts are unconstitutional. Checks function to “balance” governing power equally among branches. The U.S. federal government’s system of checks and balances exists in the powers shared between its three branches of government which are the executive, legislative, and judicial branches. The U.S system of checks and balances serves democratic governance by functioning to protect individual rights and stop any one part of the government from becoming too powerful.
Historical Motivation
American colonists desired a government that functioned to protect individual rights. In colonial America, the British government enacted laws subjecting colonists to taxation without representation. British authorities stationed in the colonies are also widely documented to have regularly violated colonists’ individual rights. As a result, in 1775, colonists revolted. Their goal was to establish a government that functioned without leadership by one all-powerful person. In doing so, they aimed to establish a government featuring a system of checks and balances—a government comprised of multiple facets, any one of which could step in to overturn acts of another if such acts were likely to result in the violation of citizens’ individual rights. The 1787 Constitution serves this desire by creating a government with three branches and awarding each branch certain governing powers and certain checking powers.
Judicial Branch
The judicial branch consists of the federal judiciary: the Supreme Court, appellate courts, and district courts. The Constitution awards the judicial branch the power to:
Interpret how federal laws are meant to be applied by their authors,
Determine whether a law aligns with our Constitution, and
Apply it to individual cases.
This power only applies to those laws which are tried in court as a result of lawsuits filed by citizens claiming their individual rights have become violated in their application. The Constitution requires that the Supreme Court’s interpretation of laws determine how district and appellate courts must henceforth apply that law to individual cases. This is insofar as their application must agree with this interpretation. The Constitution awards the judicial branch checking power over the executive branch in the form of their responsibility to overturn presidential vetoes they deem unconstitutional. An executive order is an act of presidential power to create a law without prior approval from Congress.
Legislative Branch
The legislative branch consists of Congress i.e., the Senate and the House of Representatives. The Constitution awards the legislative branch governing power to draft (or “make”) laws, declare war, regulate interstate and foreign commerce, and control spending and tax policies. The legislative branch has checking power over the judicial branch in the form of a Congressional chamber’s ability to vote to impeach federal judges and in the form of their responsibility to determine the jurisdiction of federal courts i.e., to determine the types of cases federal courts can rule on. For certain disputes, however, the Constitution overrides the legislative branch’s capacity to determine jurisdiction and guarantees the Supreme Court original jurisdiction. Examples of such disputes are those between U.S. states. The legislative branch also has checking power over the executive branch through the ability to vote to impeach the president and/or members of their administration and in the form of their responsibility to vote to pass treaties proposed by the president, determine Presidential nominations, and determine the current budget for executive offices
Executive Branch
The executive branch includes the president and their administration. The Constitution awards the executive branch the governing power to enforce laws. The executive branch has checking power over the judicial branch in the form of an ability to nominate Supreme Court judges when there is a vacancy. The executive branch also has checking power over the legislative branch in the form of an ability to overturn laws that Congress has recently approved. This act is otherwise known as a presidential veto.
The Bill of Rights comprises the first ten amendments to the U.S. Constitution and functions to protect citizens’ access to individual rights.
John Locke’s Conception of “Individual Rights” and the Purpose of Government
17th-century British philosopher John Locke believed that people are equal in that they are each born with the same “natural, inalienable” rights. Locke defined “natural rights” as rights people have because of one’s personhood. Natural rights are inalienable, meaning they cannot be given or taken away. He otherwise referred to natural rights as individual rights.
Locke believed individual rights can be violated through others’ actions. For example, imagine a king who penalizes or threatens to penalize citizens for speaking ill of government functioning. According to Locke, this king violates citizens’ individual right to liberty. He considered a liberated person, in the context of a law-bound society, as one living free from governance by political authorities other than political authorities which citizens freely vote into office. Because Locke believed people’s equality to be grounded in individual rights, he would consider this king’s violation of citizens’ liberty as tantamount to oppression.
Accordingly, Locke believed the purpose of government was to protect individual rights. He saw people as “naturally” equal which meant people own themselves and their property. He also thought people join societies to ensure their own safety and the protection of their individual rights by surrounding themselves with others who desire the same security. From these ideas, Locke concluded the purpose for people to establish a government is to protect individual rights, which he summarized in writing as “life, liberty, and property”. He concluded that if one’s government does not function to protect individual rights, citizens are justified in acting to disassemble it.
American Colonists’ Oppression by the British Government
U.S. colonists decided to establish a government respecting individual rights. The U.S. colonies were established on British-owned North American land. In exchange for permission to settle in North America, the Monarch required colonists to continue living under British law. In 1765, Britain enacted the Stamp Act which required colonists to pay taxes on imported business and legal documents, pamphlets, books, and newspapers. British authorities stationed in the colonies largely enforced this act by warrantlessly invading colonists’ homes to determine if a colonist’s stamp-act relevant items were obtained through illegal import. British authorities stationed in the colonies also regularly denied colonists’ freedom of speech, press, and assembly and regularly arrested colonists for arbitrary reasons. Colonists arrested for arbitrary reasons were often then subjected to excessive fines and bail. In addition, it was common for British government authorities living in the colonies to board in colonists’ homes without the homeowner’s permission.
Colonists resented the Stamp Act because it required them to pay taxes to a government in which they lacked representation. Colonists also resented British authorities stationed in the colonies for violating existing English laws protecting colonists’ individual rights. Adhering to Locke’s philosophy on individual rights, colonists revolted against the British government. They aimed to sever political ties with the British to enable self-government for the sake of escaping their subjection to oppressive rule.
The (1776) Declaration of Independence and the (1781) Articles of Confederation
The Declaration of Independence declared colonists’ support for Locke’s philosophy by announcing colonists’ desire to sever political ties with the British and enable self-government. It defended this claim by listing ways British authorities regularly violated colonists’ individual rights. Author Thomas Jefferson summarized colonists’ individual rights deserving of protection as “life, liberty, and the pursuit of happiness”.
The (1787) Articles of Confederation established the U.S. as a new nation by awarding powers to a federal government. The Articles did not award the federal government powers to tax citizens, meaning the United States could not create or finance a military. Congress chose to not to do so to limit the power the government could potentially use to oppress citizens. Many citizens responded to the articles with concern that the federal government’s inability to maintain a military left them vulnerable. To address these concerns, congress members gathered in Philadelphia for the Constitutional Convention later that year. Here Congress created the 1787 draft of the U.S. Constitution which laid out plans for government functioning more capable of protecting citizens’ individual rights from dismissal by foreign entities.
The (1787) U.S. Constitution
The 1787 Constitution instituted a U.S. federal government with three tiers, creating a system of checks and balances. It left out mention of powers that do not belong to the federal government as well as mention of the individual rights the federal government is required to respect. These features of the Constitution stem from negotiations during the Constitutional Convention, which produced two political parties: federalists and antifederalists. Both parties wanted to establish a U.S. federal government that incorporated a system of checks and balances and would be unable to ignore individual rights.
Federalists believed a strong national government would best protect citizens’ individual rights. Accordingly, federalists supported the construction of the 1787 constitution. Federalists also thought the act of adding a bill of rights to the constitution would be superfluous as they believed the construction of the 1787 constitution would protect individual rights necessarily.
Antifederalists believed a bill of rights would be categorical to protect individual rights. This is because they believed majority groups would inevitably attempt to oppress minority groups.
Ratification of the 1787 Constitution required the support of all thirteen states. Congress understood states with majority antifederalist populations would likely only agree to the Constitution if a bill of rights were added. To enable a more immediate enactment of a constitution, Congress promised these states the eventual addition of a bill of rights. On September 17th of 1787, and with antifederalist states having agreed to Congress’s offer for compromise, Congress enacted the U.S. Constitution. In 1791, Congress added the Bill of Rights.
Individual Rights and the U.S. Bill of Rights
The following are summaries of each of the ten amendments composing the Bill of Rights.
Congress must not create laws barring citizens’ right to freedom of religion, speech, assembly, and petition.
Citizens may own and carry a firearm to enable the existence of a functioning U.S. militia.
During peace or war times, soldiers are prohibited from lodging in homes unless permitted by the homeowner.
Government authorities must not subject citizens to unreasonable searches and seizures or subject them to arbitrary arrests.
Citizens on trial for a crime have a right to (1) due process of law, (2) freedom from government coercion to incriminate oneself, and (3) freedom from double jeopardy.
Citizens accused of a crime have the right to (1) a speedy trial, (2) a lawyer, (3) a jury whose members lack the motivation to agree with either the plaintiff or defendant, (4) know the identity of their accuser, (5) know the allegations made by their accuser, and to (6) know any evidence that has been brought forward to support accusations made against them.
Citizens accused of a civil crime have the right to be trialed for that crime with the use of a grand jury.
Government must not subject citizens to cruel or unusual punishment or excessive fines and bail.
The fact that citizens have certain individual rights which are stated in the Constitution does not mean that citizens also do not have other rights which have yet to be spelled out in a governing document.
The federal government only has those powers given by the Constitution. Powers that the Constitution does not list effectively belong to either state governments or to or individuals.
An electoral system is a set of rules governing elections, determining how votes are counted in order to determine which candidate(s) wins the election. There are lots of ways electoral systems can vary, including how many votes are needed to win the election, whether you vote for a single candidate, party’s list of candidates, or you rank several candidates, and whether the district elects one representative or several, among others. Together, different combinations form different electoral systems.
There are also separate criteria that can be used to evaluate each system as a whole. Each criterion is best understood as a spectrum, but there is not necessarily a correct or incorrect end of the spectrum, rather all of these criteria can be good or bad depending on the context.
Proportionality: how closely the system translates votes won into seats won. This is most often related to what percentage of the votes is needed to win a seat. Wasted votes are votes that do not help elect a candidate.
Geographic accountability: how accountable a specific elected representative is to voters of a defined geographic region. This can shape how easy it is for voters to influence policy, get help with local services and issues, and remove an unsatisfactory politician from office. In general, the more representatives per district, and the larger the district, the weaker the connection.
Party system: the number and size of major political parties in the nation’s legislature, and different electoral systems can create stronger/weaker party systems from the same public opinion. The most common party systems are two-party and multiparty systems, both frequently found in democratic nations, and single-party systems more common in authoritarian or weak democratic states.
Complexity: how much effort, knowledge, and education does it take for a voter to be informed? How many candidates or parties must a voter form an opinion on to make an informed vote?
Representation of minorities: does the system encourage parties to run minority candidates or a diverse list of candidates, or does it encourage parties to run a candidate who must appeal to the majority of the district, who is likely not a minority member?
Tactical/strategic voting: when a voter supports a candidate or party other than their most preferred candidate in order to prevent their least preferred candidate from getting elected.
The electoral system utilized in a country is often a product of its history. Many former colonial nations use electoral systems adapted from their colonizers, for instance many former British colonies use the First Past the Post system used in the UK. Additionally, once an electoral system is in place, it can be very difficult to change.
Electoral Systems
First Past the Post (FPTP)
In First Past the Post, electoral districts are relatively small and each only elects one representative (called a single-member district). To win a seat, a candidate needs more votes than any other candidate in the election (a plurality), which is not necessarily a majority of votes. It is possible for a party to win most or all of the seats with a much lower percentage of the vote. FPTP systems tend to develop two-party systems, because there is no benefit for coming in second (or later places), only parties that can reliably win elections survive, cutting out third parties. Voters also see the lack of success of third parties, and turn away from them, exacerbating their problems.
Canada uses the FPTP system, and the most recent federal election was in 2019. The Canadian House of Commons has 338 districts called “ridings”. Because many ridings had several of Canada’s larger political parties contesting the election, in some ridings the winner did not get a majority of the vote. At an extreme, in one riding the winner only earned 28.5% of the vote. Some parties’ representation in the House of Commons were more proportional than others; for instance the Conservative Party won 34.4% of the national vote and 121 ridings, which is nearly the same percentage of the House of Commons. While the New Democratic Party won 15.9% of the national vote this only equated to 24 ridings, or 7% of the House of Commons.
Proportional Representation (PR)
In List PR, electoral districts are typically larger, but elect more representatives than any one district does in FPTP. Parties run a list of candidates in each district, and voters vote for a party list rather than individual candidates. Parties win the number of seats proportional to the percentage of votes they earned. If a party wins X seats in a district, the top X candidates on their party list are elected. Because a party does not need a plurality of votes to enter the legislature, there will often be many, smaller parties in the legislature, forming a multi-party system. However, there can be a minimum percentage of the vote needed to earn a seat.
The European Parliament is one of the governing bodies of the European Union and is directly elected by the citizens of EU member states. Each member state elects Members of the European Parliament (MEPs) and the number of MEPs is dependent on population, currently ranging from 6-96 MEPs. Most states use the list PR system described above, though another system, single transferable vote, is also allowed.
Parallel Voting
Parallel Voting is one way to combine plurality/majority systems and PR. Voters cast two votes, one in a plurality/majority election (most typically FPTP but others are possible), and one vote in a PR election. How many seats a party wins in the plurality/majority election does not affect the number of seats that party wins in the PR election, or vice versa.
One nation that uses Parallel Voting is Italy. Italy’s Chamber of Deputies (lower house) has 630 seats, 233 (37%) of which are elected by FPTP, while the other 397 seats are elected by PR elections in regional, multi-member districts.
Two Round System (TRS)
Under TRS, each district elects one representative, and an absolute majority of votes is required to win, rather than a plurality as under FPTP. If no candidate initially wins more than 50% of the vote, another round of elections is held, traditionally between the top two candidates. This runoff is usually held a few weeks after the first round of elections.
France uses TRS for both its presidential and parliamentary elections. In the French 2017 presidential election, five candidates received more than 5% of the vote in the first round, with Emmanuel Macron (24.01% of the vote) and Marine Le Pen (21.3%) leading the pack. In the runoff between the two, Macron won with 66.1% of the vote, compared to Le Pen’s 33.9%.
Preferential Voting
Preferential voting is also known as alternative voting or ranked choice voting in the US. Like FPTP, preferential voting elects one representative per district, but unlike FPTP, voters indicate their preferences by ranking the candidates. Voters have a first preference vote, second preference vote, etc. Some nations require voters to rank all candidates, while others do not. To determine the winner, all first preference votes are counted. If a candidate has a majority of votes, that candidate is elected. If no candidate has a majority, then the candidate with the fewest votes is excluded, and that candidate’s votes are distributed according to the voters’ second preferences. This continues until a candidate has a majority (more than 50%) of the votes and they are declared the winner. This process is also known as an instant runoff, as opposed to the more time-consuming second round of elections in TRS.
Australia uses preferential voting, and it has gained traction in the US in recent years (under the name of ranked choice voting.) In Australia’s 2019 federal election, 46 seats were decided on the first preference vote, while the other 105 seats were decided on later preference votes. In twelve elections, the eventual winner was not in first place after the first round of preference votes, and ten of those elections went to the Labor party.
The United States governmental system is a Democratic Republic with a President in the key leadership role. Alternatively, the United Kingdom has a parliamentary system with a Prime Minister. In these two different types of government, the respective leaders are chosen in different fashions and have different roles and authorities.
The Two Systems
The United States government is composed of three branches: the legislative, executive, and judicial. These branches derive their authority from the Constitution, and each has enumerated powers and responsibilities. To ensure limits on the capabilities of each branch, the framers of the Constitution created a system of checks and balances, which promotes cooperation among the three branches and prevents any single branch from overstepping its bounds. The Constitution also outlines the Electoral College process to select the President. “Electors,” who are appointed by the state, cast their vote by ballot for the United States President. The aim of the Electoral College is to find a balance between direct election by citizens (a popular vote), and election by a congressional vote.
In contrast, the United Kingdom has a bicameral Parliament (meaning that there are two legislative houses), including the House of Commons (the lower house, where most law-making activity takes place) and House of Lords (the upper house, which refines and approves laws). Unlike the United States’ written and codified constitution, the United Kingdom relies on a mix of traditions which have developed over the course of centuries and common law, which is composed of hundreds of acts of parliament and court case rulings. The monarch theoretically has the power to appoint a Prime Minister. However, in practice, the Prime Minister is chosen by the political party with a plurality in the House of Commons and the monarch simply confirms the party’s proposed candidate.
The President of the United States is the leader of the executive branch, as well as the head of state and Commander-in-Chief of the armed forces. As such, the President implements and enforces laws written by Congress, as outlined by Article II of the Constitution. The President also appoints the leaders of the fifteen executive departments and more than fifty federal commissions, federal judges, ambassadors, and more. The Constitution also requires the President to, “from time to time” provide information to Congress by a State of the Union address. Convention has developed for the State of the Union, and the President has traditionally outlined a general agenda for the upcoming year, but the constitutional requirement may be fulfilled as the President sees fit.
By comparison, in the United Kingdom’s parliamentary system, the Prime Minister is responsible for the policy and decisions of the government. With no formal constitution, the Prime Minister’s duties are less explicit, but traditionally the Prime Minister’s responsibilities fall under eight categories: constitutional and procedural, appointments, conduct of cabinet and parliamentary business, policy strategy and communications, organizational and efficiency questions, budget and market-sensitive decisions, national security, and special personal responsibilities.
One of the responsibilities of the Prime Minister is to manage the relationship between the government and the Monarch, as well as manage the relationship between the UK Government and the regional administrations in Scotland, Wales, and Northern Ireland. Similar to the President, the Prime Minister has a responsibility to appoint members of the government, including ministers, headships of security service, secret intelligence service, top appointments to the civil service, ecclesiastical appointments, academic appointments, and more. The Prime Minister is also in charge of appointing and then maintaining the Cabinet’s overall political strategy (the Cabinet is the collective term for the senior leaders of large government departments, alternatively referred to as the executive). The Prime Minister must also run weekly meetings with the National Security Council.
Beyond constitutional duties, the President is capable of imposing their will and exploiting their power. One of the President’s greatest powers is their ability to either adopt proposed legislation by signing it into law or to veto the bills (note, however, that Congress may override a veto with a two-thirds vote of both houses). The President can also issue executive orders to either direct members of the executive branch, or clarify existing laws. This is a strategy that has been employed much more frequently by recent Presidents; executive orders saw a significant increase in usage beginning in the early 1900s. Additionally, as the head of the executive branch, the President oversees diplomacy with other nations. Thus, the President has the power to negotiate and sign treaties, though treaties require ratification from the Senate. The President can extend pardons and clemencies for federal crimes.
Because the Prime Minister’s powers have been developed iteratively over time without a clear set of rules, they are more flexible. In addition to being able to appoint ministers, they may also dismiss ministers as they see fit, effectively giving them ultimate control over the legislative agenda. Regarding the Cabinet and its committees, the Prime Minister has the power to steer the agenda, and frequently pushes the cabinet towards the outcome they believe to be best. The PM can also decide the size of the cabinet, and may create governmental departments and executive agencies. While it is the responsibility of the PM to run National Security Council meetings, they also have the power to oversee the implementation of the general National Security Strategy. Finally, the Prime Minister serves as the representative of the UK during international meetings, and has the power to control much of the UK’s diplomacy with other countries.
Is one better?:
Ultimately, both the Democratic Republic and the Parliamentary system have their upsides and downfalls. The primary strength of a Democratic Republic is its system of checks and balances, which prevents any single branch from usurping power from another. However, there is often significant gridlock when the government is trying to function, resulting in slow progress.
While the powers of the legislative, executive, and judicial are isolated in a Democratic Republic, the powers are more fluid within the Parliamentary system. This can work to the system’s benefit, because the legislative and executive powers are merged together, allowing laws to be formulated and implemented more quickly than in a Democratic Republic. However, because of the fusion of powers, the executive, or Cabinet, can have too much power over the legislature, or Houses of Parliament.
Disenfranchisement, or the deprivation of the right to vote, of criminals is a practice adopted from English law which many states integrated into their constitutions after the Civil War. Every state except Maine, Vermont, and Washington, D.C., enforces some restriction on voting for incarcerated persons. The Tenth Amendment gives states jurisdiction over their election and voting laws, so every state has its own policy on felon disenfranchisement.
Within the range of policies, 20 states restore voting rights upon an inmate’s release, 17 require completion of parole/probation, and 11 states have additional requirements including personal grants of clemency from the governor. To learn about your state’s policy and how it compares to the rest of the nation, see this interactive map designed by the American Civil Liberties Union.
De Facto Disenfranchisement
Today, felon disenfranchisement occurs mostly through “de facto disenfranchisement,’’ meaning those impacted could still legally cast a ballot, but are unable to due to other obstacles. Pretrial detention is not legal grounds for disenfranchisement in any state, yet many people held in jails awaiting conviction are not given the chance to vote. Misinformation spreads easily because those working with incarcerated individuals receive limited, if any, training on their state’s felony disenfranchisement laws. Incarcerated individuals are often overlooked during election season, so efforts are not made to register and educate incarcerated individuals. In addition, many of the materials needed to vote, like voter registration forms, mail-in ballot applications, and information regarding candidates and ballot measures, are available online. Inmates often have limited internet access, so they have to submit physical applications through the postal service. This longer process can cause inmates to miss important deadlines for registering with their state and casting their ballots.
Felon Disenfranchisement and Socioeconomic Status
African Americans are disenfranchised due to felony conviction at a rate four times greater than other racial groups. This is partly due to a disproportionate incarceration rate of Black versus white Americans: Black men and women comprise about 13% of the US population, but account for 35 and 44% of the incarcerated populations, respectively. Hispanic Americans are imprisoned 1.4 times more than whites. Incarceration rates for Latinx/Hispanic Americans is likely understated as some states’ ethnicity reporting includes Hispanic inmates within the white prison population, and four states—Alabama, Maryland, Montana, Vermont—do not record racial/ethnic data at all.
Low income Americans are also overrepresented in the nation’s jails and prisons. Some states like Florida and Alabama require payment of LFOs (legal financial obligations) before re-enfranchising a felon, so low economic standing—perpetuated during incarceration periods—leads to the suspension of voting rights. Current policies restricting voting rights of incarcerated people and convicted felons affect people of color and low-income Americans at higher rates than white and high income citizens. The states without felon voting restriction, Maine and Vermont, are overwhelmingly white compared to the rest of the country, meaning their universal suffrage status still favors whites over people of color in their communities.
Arguments For and Against Felon Voting Restrictions
Although it has recently gained momentum as a topic of public discourse, much of the public believes felons should not retain voting rights. A 2019 poll conducted by Hill-HarrisX showed 69% of Americans believe incarcerated felons should not be able to vote. Debates around the four categories of restrictions—de facto, during incarceration, parole/probation, and following the completion of additional requirements—all follow the same logic.
Those who believe that felons should not be able to vote often base their arguments on their interpretation of what it means to vote. Proponents for felon voting restrictions argue that voting is a privilege, rather than an absolute right of citizenship. Once a person is incarcerated, they lose that privilege to vote. By committing a crime, a person has chosen not to follow the law, and has no place deciding the nation’s future. Those who support disenfranchisement argue that those who have violated the law in a manner serious enough to warrant arrest, detention, and probation should not have a role in shaping the laws for everyone else, especially citizens who have not violated any laws. It is argued that individuals who have committed serious crimes do not meet the minimum standards of conduct and responsibility required to vote.
Opponents of restrictions on incarcerated individuals believe that voting is a fundamental right which can’t be taken away, even if one is convicted of a crime. Especially in cases of de facto disenfranchisement, they see these restrictions as unjust because they prevent people who would normally cast a ballot from participating in elections. They argue that if under the law a person is allowed to vote, they should not face additional obstacles to casting their ballot. In addition, some feel that extra effort should be made to reintegrate felons into society, and participating in the democratic process is an important part of existing in the community.
In addition to those two black and white perspectives, some believe that incarcerated felons should not be able to vote, but should be allowed after they have paid their debt to society. They view incarceration as a time when the right to vote is limited along with the freedom of movement, but that should only occur for a finite period of time. In 2018, Florida voters passed Amendment 4 which restored voting rights to felons who had completed their prison sentences (with the exception of those convicted of murder or felony sexual offense). The Florida legislature weakened the amendment by including a provision that all LFOs had to be paid in addition. Many were outraged by this decision, because they felt like the voters of Florida had made a decision about when voting rights should be reinstated and the legislature had reworked it, pushing back the finish line.
Effects of Disenfranchising Felons
Preventing felons from voting disproportionately impacts communities of color and can result in misrepresentative election results. This is particularly true for Black Americans, with more than two million being prevented from voting. Advocates for enfranchising felons argue that restricting voting may lead to skewed election results. Local, state, and federal elections can be decided by extremely small margins and the inclusion of citizens who were previously unable to vote could greatly influence these outcomes. Beyond deciding elections, disenfranchisement of incarcerated people affects the ways in which communities are afforded representation. The Census Bureau counts incarcerated people as residents of the location of their detention facility. When it comes to redrawing congressional districts or allocating representatives in local weighted voting systems, for example, the incarcerated population is counted towards the population tally but are not able to participate in the decision-making process. That is, incarcerated individuals swell the data upon which representatives are delegated to certain communities without being able to offer their opinions about candidates. This grants a disproportionate amount of influence to citizens living outside of detention centers, undermining the premise that each voice matters equally in a democratic election.
The US campaign finance system is defined by three issues: freedom of speech vs. equality, disclosure, and enforcement. It is a uniquely challenging policy issue because every policymaker was elected and funded through the current system. Campaigns are expensive and increase in cost every year, forcing elected officials to rely more and more on those who can afford to donate large sums every election cycle, and making it less likely officials will pass legislation limiting the power of that same group. In 2016, the cost winning federal office was: $957.6 million for the presidency, $19.4 million for a Senate seat, and $1.6 million for a House seat. That year 85.3% of Senate races and 95.4% of House races were won by the candidate which spent the most.
The US system leans towards free speech, and has fewer regulations than most liberal democracies. The only two elements which push the US towards the equality side of the spectrum are (1) an individual contribution limit, which is a cap on the amount individuals can donate to a campaign and (2) a public financing system where presidential candidates can receive a grant instead of accepting contributions. However, elections have become too expensive for public financing to be viable. In the landmark decision Citizens United (2010), the Supreme Court decided individuals and corporations could spend as much as they want to support a candidate as long as that spending was independent of the campaign (outside spending). This case (and decisions based on the ruling) lead to the creation of Super PACs; groups which can raise and spend unlimited funds during an election. Regular PACs work with campaigns to raise and spend, so they have the same contribution limits. Following the Citizens United decision, outside spending increased by 841% over 8 years to $2.8 billion in 2016. Reformers suggest limiting or banning outside spending or improving the public financing system to reduce the potential for corruption.
Disclosure is the policy where sources of campaign or political advocacy (like advertisements) funding are available to the public. The US has limited disclosure, where PACs, Super PACs, and campaigns report all of their donors but the organizations and corporations which donate to them do not disclose their donors so in many cases it is still not clear where the money is coming from. Political spending where the source is not disclosed is called dark money. Disclosure reformers suggest mandating that groups contributing above a certain amount disclose their donors, and the debate is around what that amount should be.
The Federal Election Commission is a 6-person board responsible for enforcing all federal election laws. It struggles with gridlock and partisanship because four people are required to approve any enforcement actions which happens rarely, and it has been short of two members for the past two years. The FEC moves slowly and seldom has consensus, so campaign finance violations are not always punished, and if they are the information does not reach voters until years after the election. Solutions to reform the FEC include creating an appeals process for issues which haven’t reached four votes, mandating faster response times, and restructuring the board to streamline enforcement.
Introduction
Campaign finance is the system by which money is raised and spent to advocate for a candidate or policies during an election. Every democracy in the world wrestles with what kind of system works best for them. This is important because money gives candidates and activists the ability to reach potential voters and persuade them of their message. Money equates to the size of the megaphone; if you don’t agree with what is being said you still won’t vote for it, but in our crowded media market the main challenge is getting potential voters to hear your message at all. To understand the campaign finance discussion and develop your point of view, it is essential to understand three main topics: freedom of speech versus equality, disclosure, and enforcement.
First, freedom of speech versus equality in the campaign finance system: Every step taken to ensure the system allows each person an equal voice also limits some people’s ability to express their beliefs and ideas. For example, if individuals are allowed to contribute a maximum of one thousand dollars to a political campaign, this preserves some amount of equality for a candidate and their supporters, many of whom cannot afford to contribute that amount. But it also limits the freedom of speech of those who can afford to give more than a thousand dollars and want to spend their money supporting a candidate who represents their beliefs. Outside spending, or spending which advocates during an election but is not controlled by a candidate, is another controversial piece of the puzzle. There are many reasonable perspectives on this issue, and which perspective the US system should adopt is highly contentious.
Second, disclosure: Disclosure is the process of revealing the amount and source of campaign spending to the public. It is a less polarizing issue, but is still debated in the US. One example of disclosure is a Super PAC that spends millions of dollars in a Presidential election and is transparent about the corporations that are footing the bill. Another example is a Congressional candidate sharing the names of every donor who contributed to their campaign, and everything in between. The Supreme Court has repeatedly ruled that mandatory disclosure for funding sources is legal, necessary, and the antidote to corruption in the political system, because it allows voters to weigh the merits of an argument while keeping in mind the interests of those putting forward the message. In fact, many view strict disclosure requirements as a way to avoid restrictions on campaign contributions while maintaining efficacy of elections. For example, voters may take a message bashing a climate change activist with a grain of salt if they know the ads are paid for by a logging company, which many see as preferable to banning the logging company from donating altogether. However, some argue this denies all individuals the opportunity to be listened to fairly, because people may weigh messages with a preconceived bias depending on where the messages come from. This is not a widely-shared belief, and the main issue in the disclosure debate is to what extent should disclosure exist, not whether it should exist at all.
Third, enforcement: Whether American laws should be enforced cannot and should not be up for debate. However, the current US campaign finance system relies on enforcement from the Federal Election Commission and there are questions about whether this system and structure is an effective enforcement method. Many feel the FEC has a deeply flawed structure. At its worst it has become a tool for those who do not agree with current policies to stop them from being implemented, but even without intentional sabotage the FEC does not appear to be currently capable of enforcing the campaign finance legislation that safeguards American democracy. This is the least divisive topic of the three, but equally important. The main issue is finding the most effective way to restructure the FEC.
Campaign finance reform is a uniquely challenging political issue. Every person in elected office who would play a role in reforming the system is also a byproduct of the system, because they were elected and funded using the existing rules. It is difficult for a politician to call for, for example, a ban on outside spending when they were likely elected through a campaign reliant on outside spending. As elections become more and more expensive, it becomes harder and harder for elected officials to rail against the system for fear of alienating the funders they need to win reelection. Recently, there has been a movement on the progressive side of the Democratic Party to refuse support from Super PACs and corporations, essentially taking campaign finance into their own hands. While this is an interesting development, neither party has put forward meaningful campaign finance reform.
Appendix 1 provides a description of key terms relating to campaign finance. For those new to the field of campaign finance, it can be helpful to either read Appendix 1 in advance or refer to it while reading the report.
Historical Overview
Pre-1971 System
Prior to the Federal Election Campaign Act and its amendments, the US passed a series of laws regulating campaign finances to limit corporate and union campaign contributions and manage disclosure of contributions to the public. The system was patchwork, not comprehensive, and lacked a body to oversee and enforce.
Campaign finance issues became apparent during the investigations of President Nixon, which led to an overhaul of the current system and a national desire for robust campaign finance reform.
1971 and 1974: Federal Election Campaign Act and Amendments
The Federal Election Campaign Act and its Amendments (passed 1971-4) provided the basis for the current campaign finance system. They put in place disclosure requirements for all campaign contributions and expenditures, and limits on how much can be contributed per election cycle:
An individual could give to a candidate
An individual could spend advocating for a candidate (a.k.a. outside/independent spending)
An individual could give to any campaign overall (at that time it was $25,000)
A candidate could give to their own campaign
Each campaign could spend on election activities
All of these limits solely apply to federal elections, not state or local elections. The 1971-4 Act also established the Federal Election Committee (FEC), an independent body to oversee the new regulations, and provided the basis for public funding for federal election campaigns (read more about this system in the Current Policies section).
Buckley v. Valeo challenged the constitutionality of the Federal Election Campaign Act and its Amendments. Most of the provisions were found to be constitutional, because they fulfilled the purpose of limiting improper influence from campaign spending on the government without infringing on the First Amendment right to freedom of speech. However, the limits on how much an individual could spend advocating for a candidate (a.k.a. outside/independent spending) were struck down, as were the limits on how much a candidate could give to their own campaign, and how much a campaign could spend. In that decision, the Supreme Court decided that the value of outside spending is decreased, “probably not by 95%.” This means that the Supreme Court viewed spending on behalf of a candidate which was uncoordinated with the candidate as roughly 6% of the value of a direct campaign contribution, which was not enough value to improperly influence the government. For example, if an individual spent $100 to influence a campaign, that is the equivalent of giving $6 to a campaign. This precedent was never overruled, and still affects contemporary campaign finance laws.
Soft money contributions to political parties were banned. “Soft money” is funding which is not monitored by the FEC because it is intended to be spent on local or state elections rather than federal elections . Because soft money was not subject to the same caps and disclosure regulations as hard money (money going to federal elections), it provided a loophole to funnel additional funding into the federal campaign finance system. Corporations could give unlimited amounts of money to the National Democratic Party or the National Republican Party without disclosing their names or the amounts to the public. The national parties could then use the money for anything that didn’t specifically identify a federal election or candidate, even if their federal candidates benefited. This included things like voter drives and mobilization efforts, as well as “issue ads” which advocated for a policy position. During the 2001-2002 election cycle, national party committees (both Democrat and Republican) collectively spent $86 million of hard money and $217 million of soft money to state affiliates, including outsized spending in states with competitive senate elections.
“Electioneering” communications funded by corporations or labor unions were banned. “An electioneering communication is generally defined as ‘any broadcast, cable or satellite communication’ that is ‘publicly distributed’ and refers to a clearly identified federal candidate and is made within 30 days of a primary or 60 days of a general election.”
2010: Citizens United v. FEC
This court case overturned limits on corporate and labor union spending, or the “electioneering” aspect of the BCRA. The Court found that prohibiting corporate and labor union spending on electioneering communications within 60 days of the election amounted to limiting freedom of speech. An important precedent was also set by the decision. The FEC argued that limiting freedom of speech in this case was necessary because of compelling corruption concerns. The Court overruled this idea, essentially saying limiting independent expenditures did not serve an anti-corruption interest. In the 2008 election cycle, outside spending totaled $300 million. Following the Citizens United decision, outside spending in 2012 totaled $1.2 billion.
2010: SpeechNow v. FEC
This court case allowed corporations, labor unions, and individuals to contribute to political committees without a limit, based on the idea from Citizens United that funding from independent groups could not be limited by anti-corruption arguments. This led to the creation of Super PACs, or political action committees independent from the campaign which attempts to influence federal election outcomes. Regular PACs are political committees which coordinate with the campaign to raise and spend fundraising revenue. Because Super PACs are not supposed to coordinate with campaigns, they can raise unlimited amounts from individuals and corporations.
2014: McCutcheon v. FEC
McCutcheon v. FEC struck down limits on how a single donor could give to a variety of candidates, PACs, and parties. Individual contribution limits still exist, but limits on the aggregate amount an individual can spend in an election cycle do not. The original principle was established by the 1971-4 Act and Amendments. The McCutcheon decision increased the importance of Joint Fundraising Committees (JFCs), which are coalitions of PACs, parties, and candidates who split the results of fundraising. A single donor can contribute millions of dollars to a JFC, where it is then split between a candidate, national party, and state parties. JFCs raised $1.2 billion during the 2016 election cycle, the most in US history. The following chart shows JFC fundraising made up more than a quarter of all large-dollar contributions in 2016. To view the base data, see Appendix 4.1)
The Current Policies section begins with state and general policies, and then discusses policies categorized by the three campaign finance themes: freedom of speech vs. equality, disclosure, and enforcement.
State and General Policies
Variation in State Policies
Campaign finance policies are divided between federal and state. On a state level, policies vary widely and there are often fewer regulations than at the federal level. Every state requires campaigns to disclose their direct contributors, and the amount of time between the contribution and the reporting deadline varies from state to state. For example, in the ten days running up to Florida state elections, campaigns must report their contributions daily so that voters have the most up to date information going into the voting booth. In Iowa, the last reporting deadline is more than three weeks from the election, so individuals and corporations can contribute the maximum amount to influence the election in the weeks prior, and voters will not be informed about who is funding their candidates until the two months after the election.
Forty-seven states also have disclosure regulations for outside spending, and the requirements vary as much for outside spending as for campaign contributions. New York requires outside spending to be reported within twenty-four hours if it is within thirty days of an election, and New Jersey’s requirement is forty-eight hours. In Massachusetts and Minnesota the last deadline to report outside spending is ten days before the election and any outside spending within the last ten days is reported thirty days after. Indiana, New Mexico, and South Carolina do not require outside spending to be reported at all.
Contribution limits also vary by state. Eleven states have no contribution limits, and following data pertains to the other thirty-nine.
The states without contribution limits for individual donors are: Alabama, Indiana, Iowa, Mississippi, Nebraska, North Dakota, Oregon, Pennsylvania, Texas, Utah, and Virginia.
State Policies and Soft Money
The 2002 Bipartisan Campaign Finance Act banned national political parties from accepting soft money. This was an important step in limiting the role of unlimited and undisclosed funding impacting federal elections but it did not close the loophole altogether. Instead, associations exclusively involved in local and state politics disaffiliated from their national democratic and republican counterparts. For example, the Democratic Governors Association and the Republican Governors Association disaffiliated with the National Democratic Party and National Republican Party because they represent governors who run for state office. These associations can still accept soft money and continue the same activities as before, which benefit candidates for federal office. The Governors Associations can allocate their funds towards advertising and voter registration in states like Pennsylvania and Florida in presidential election years or target vulnerable senators from the opposite party when they are up for reelection.
Public Funding for Campaigns
The 1971-4 Act and Amendments established the basis for public funding for presidential campaigns. Funding is available for both the primary and the general election. There are no public funding options for congressional elections. The system differs for primary and general elections. In the primary election, the federal government matches campaign contributions to a candidate who meets certain fundraising goals. In exchange, the candidate agrees to an aggregate limit on spending, a cap on spending from their personal funds, and limitations of spending in each state based on the state’s population. In the general election, candidates from major parties can receive a grant which is $103.7 million in 2020. In exchange, the candidate cannot accept private contributions and agrees to a cap on spending from their person funds. An avenue also exists to fund a new or minor party. For more details on the public financing system, see Appendix 2.2.
Campaigns have grown so expensive over the past decade that it is no longer a feasible option for candidates to accept federal funding and forego fundraising events. John McCain, the 2008 Republican presidential candidate, was the last person to use the public financing option. President Trump’s winning 2016 campaign cost $957.6 million, which dwarfs the $96.14 million offered to candidates relying on public funding. This is an issue because public funding for presidential campaigns exists so that candidates have the option of getting their message to voters without courting donations. Relying on donations forces candidates to cater to high-income Americans who have disposable income, and corporations.
Freedom of Speech vs. Equality
US federal policies tend to lean more in the direction of freedom of speech. This is due to America’s history of prioritizing freedoms above all else, but also because equality-leaning policies which are passed by the US government are ruled unconstitutional by the Supreme Court. This indicates that the priorities of the American people (and their elected representatives) sometimes differs from the Constitutional framework valued by the un-elected Supreme Court Justices (for more on the background of policies and court decisions, see the Historical Overview section).
Limits vs. Useful Market
There are two main ways to preserve equality in the campaign finance system. The first involves placing limits on spending in a myriad of ways. These limits could apply to the amount an individual can contribute to a campaign, the amount the campaign can spend, the amount an individual can contribute in one election cycle, etc. Limits are generally seen as a more invasive way of preserving equality. The second option is by narrowing the useful market of campaign spending. The useful market is the area where campaign spending can be used effectively to promote a candidate. In the US, the useful market is virtually unlimited because campaigns are not bound to specific time frames or advertising through specific mediums. Narrowing the useful market involves actions like prohibiting tv/radio advertising past a certain amount or limiting the available advertising mediums in some other way, creating a time frame for a campaign before which advertising is prohibited, etc. By narrowing the useful market, individuals are still able to contribute in any way and amount they see fit (thereby preserving some freedom) but the value of their contribution in changing the outcome of the election after the useful market is saturated is minimal.
Contribution Limits and Loopholes
Contributions limits are one of the few limits which have been consistently approved by the Supreme Court.
Limits are placed on the amount an individual, PAC, and party committee can contribute to campaigns, PACs, and party committees each year. For the 2019-2020 election cycle, individuals can contribute up to $2,800 to a candidate. To see the FEC’s full guidelines on contribution limits, see Appendix 2.1.
Corporations and labor unions are not allowed to directly contribute to a campaign. However, they can contribute a PAC which directly coordinates with the campaign as well as a Super PAC which advertises on behalf of a campaign.
Foreign nationals who do not have US Green Cards are prohibited from donating to US campaigns. However, foreign corporations can donate to US super PACs if they have US subsidiary companies. A subsidiary is a company that is owned by another company, called the parent company. For example: British American Tobacco is a U.K company that purchased Reynolds American, Inc., a US company, in 2017, making Reynolds American, Inc. a US subsidiary. In the 2018 election cycle, Reynolds American, Inc. gave $1.2 million to political campaigns in the US.
Aggregate limit
At this time there is no aggregate limit on the amount an individual can contribute in one election cycle. This aggregate limit was eliminated in the McCutcheon v. FEC Supreme Court Decision (2014).
Outside spending
Currently, there is no limit on outside spending, or spending on political advertising which is independent of the campaign. The outside spending limitation was eliminated in the Citizens United v. FEC Supreme Court Decision (2010). Since the limits were eliminated, outside spending and Super PAC funds have risen from $300 million in the 2008 election to $2,824.6 million in the 2016 election, an increase of 841% in just eight years (in this case, Super PAC and outside spending is used as a catch-all term for spending from nonconnected political committees, primarily Super PACs.
Super PACs are a major conduit for outside spending. It is common for campaigns to communicate strategies to Super PACs in ways which do not violate FEC regulations but undermine the purpose of the Super PAC. The Super PAC is often run by political operatives familiar with the campaign and the candidate, raising questions about whether they can truly be “independent.” Furthermore, an in-depth study on independent expenditures spanning both parties found campaigns used strategies like: “creating a campaign advertisement but purchasing little airtime for it, and then putting out an accompanying press release stating that the ad is ‘really moving voters,’” or else releasing “b-roll, high-resolution photographs, and targeted talking points, either available through a hidden link on the campaign’s website or through some other microsite or YouTube account. Outside groups would then pick up the footage and use it in their own ads.” Campaigns are careful not to communicate directly, but instead pass messages through mutual acquaintances or other third parties to ensure Super PACs pick up on their hints. In this way, Super PACs operate much more like regular PACs but without the oversight, regulations, and contribution caps.
(Source: FEC, for base data and sources see Appendix 4.2)
Disclosure
All funding from political committees, PACs, Super PACs, and individual contributions is supposed to be disclosed. The FEC requires reporting on the donor and amount donated, and makes that information available to the public. However, if funding comes to the PAC or SuperPAC from 501(c)(4) organization, the donors and amounts are not disclosed. Money where the donor is not disclosed is known as dark money. The only deciding factor between a 501(c)(4) organization and a political committee is what percentage of the organization’s budget is spent on political advocacy. If it is below 50% it is a 501(c)(4) and can keep its donors undisclosed. Many donors use this loophole to obscure their involvement in elections.
Furthermore, the FEC definition of political advocacy is a major asset to 501(c)(4) organizations. Paying for the distribution of an advertisement counts as “political advocacy” but the cost of producing that advertisement does not. For example, if an individual starts a 501(c)(4) organization with a million dollars, spends half of that money producing a national ad campaign and the other half distributing it, that organization legally does not have to disclose its donors.
Enforcement and the FEC
The FEC is responsible for the enforcement of all campaign finance legislation, meaning that if the FEC doesn’t function properly, it does not matter what kind of policies are put in place. The FEC has a board with six Commissioners, as well as a general body. The Commissioners are responsible for initiating audits and investigations on individuals and organizations suspected of violating campaign finance policies. The general body does the investigating and reports back to the board. In 2017, the FEC’s budget was $79 million. There are several structural barriers which hamper the effectiveness of the FEC in its oversight and enforcement duties.
Gridlock: A maximum of three Commissioners can be from the same party in order to maintain balance on the board, and four votes are needed to proceed with any board action. While this was intended to stop partisan attacks from the FEC, it has also had the effect of causing intense gridlock on the board. If four Commissioners don’t agree, there is no recourse or appeals process to continue pursuing a valid campaign finance infraction. In 2016, with all 6 seats filled, the board gridlocked on 30% of enforcement issues.
Empty Seats: The gridlock problem is amplified when the board is not fully staffed. Currently, only four seats are filled, meaning a consensus among the two republicans, one democrat, and one independent on the board is required before instigating any sort of investigation or enforcement. From August 2019 to May 2020, only three seats were filled on the board so the FEC was at a standstill. This has only happened once before in the history of the FEC, when the board only had three seats filled for several months in 2008. New Commissioners are first selected by the president and then confirmed by the Senate. Although the board has been short of at least one Commissioner since the early days of the Trump presidency, President Trump has only nominated one replacement, who was recently confirmed. For a timeline of all FEC Commissioners and vacancies, see Appendix 2.3.
Priorities: One of the FEC’s main priorities is focusing on cases where it feels it can have the most impact. That sounds reasonable, but in practice it means that as soon as an organization feels it is genuinely in danger of being penalized by the FEC, it liquidates. The FEC sees little value in investigating or punishing the members of a defunct organization, and so the issue is dropped and the same offenders are free to restart the cycle with a clean record. This creates, for lack of a better analogy, a game of dark money whack-a-mole.
Statute of Limitations: The statute of limitations for most campaign finance violations is five years, and currently the FEC investigation system does not move quickly enough to prosecute many violators within that time frame. This is especially jarring because for democracy to work effectively, voters would ideally know about campaign finance violations prior to voting in an election, rather than five years after the election when likely the information has no impact on them.
Interpretation of Campaign Spending: Commissioners who turned down a campaign finance violation complaint recently came out with reasoning which severely limits the purview of the FEC’s enforcement and the definition of a political committee. In the case CREW v. FEC (New Models), the Commissioners reasoned that contributions to Super PACs did not count towards the 50% requirement which makes an organization a political committee and not a social welfare organization. This is important because social welfare organizations do not have to disclose their donors but political committees do, and in many occasions the only thing separating the two is that 50% requirement. It is also important because the FEC’s definition means organizations can funnel unlimited amounts of money to Super PACs without having to disclose their donors, because the FEC does not recognize Super PAC contributions as efforts to influence elections.
Interpretation of Prosecutorial Discretion: Currently, if watchdog organizations or other actors disagree with an FEC decision or think they are not fulfilling their role properly, they can sue the FEC in federal court. The court then decides whether the FEC made the right call, and can demand that the FEC reassess their decision. However, in the recent court case CREW v. FEC (CHGO), the court ruled that virtually any time the FEC claims “prosecutorial discretion” it has the right to dismiss any violation it sees fit. Prosecutorial discretion is the concept that the FEC is best informed on its own enforcement priorities, use of resources, and the likelihood of success in a trial. It is not meant to be a catch all excuse for avoiding oversight, but that is the current status quo.
Many of these issues can be seen in the story of the FEC investigation of New Models. New Models registered as a 501(c)(4) social welfare organization and put more than $3 million in 2012 towards Super PACs to influence the 2012 election in one party’s favor. This amounted to nearly 70% of New Models’ total spending that year. CREW, a nonprofit watchdog, reported New Models to the FEC in 2014 for violating campaign finance law. The FEC’s general body investigated New Models and, in 2015, recommended that the board take action against New Models for influencing a federal election without registering as a political committee and disclosing its donors. New Models liquidated that same year. No action was taken until two years later, in 2017, when the FEC voted on the New Models issue with only four seats filled. The board was split 2-2, with the two Commissioners from the party which New Models supported voting to dismiss the case. The case was then dismissed because of the 2-2 standstill and no action was taken against New Models or the people running it.
Current Data
Spending Types in the Status Quo
This data demonstrates that large dollar contributions have dominated political expenditures, and Super PAC spending is increasing dramatically following the Citizens United decision. Large dollar contributions are more than $200 and they are consistently made by less than 0.5% of American citizens and are commonly channeled through Joint Fundraising Committees which allow one mega-doner to write a single check and max out contributions for every level and candidate of a political party.
(Source: FEC, for base date and sources see Appendix 4.3. Please note there was no available data for small dollar contributions in 2008 so the demonstrated amount is based on estimates.)
Impact on Election
Some citizens may be tempted to assume that ideas win out over money, but with few exceptions that proved to be false. In 2016 95.4% of House races and 85.3% of Senate races were won by the candidates who spent the most. These percentages are consistent in elections throughout the 21st century. That same year, the average winning House seat cost $1.6 million and the Senate seat cost $19.4 million. A handful of high-profile wins by candidates with less funding (President Trump against Hillary Clinton and Jeb Bush, the rise of AOC, etc.) are used to create the myth that money doesn’t substantially impact the outcome of an election. But these are a few exceptions to the rule, and they stand out because they overcame a system stacked against them rather than because the system wasn’t stacked. Because individual contributions can only be raised $2,800 at a time, and even that amount is outside the bounds of possibility for the average American, it makes far more sense strategically to fundraise from large corporate donors who can donate unlimited amounts to a Super PAC. The connection between spending and election success incentivizes candidates to appeal to corporate interests that can afford to write big checks. Corporations want something in return for their financial support, like industry-specific regulation changes, which distorts the policy priorities of politicians.
This section begins with campaign finance systems in other democracies and the reforms implemented in those countries, then discusses recent efforts to reform the US system, and concludes with a discussion of other potential reforms which is divided into freedom of speech vs. equality, disclosure, and enforcement.
Campaign Finance in Other Democracies
Overview
While the US system leans towards preserving freedom of speech, many European campaign finance models are designed to produce fairness and equality in the electoral system. These two values compete in campaign finance, where equality necessarily means lifting up some and limiting others to create an even playing field. In the Buckley v. Valeo decision (read more about Buckley v. Valeo in the Historical Overview section), the Supreme Court stated “the concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment.” This divergence in values is the root of the differences which arise between the systems. It is important for citizens to consider if the tradeoff is worth it to them, and if the benefits of unfettered freedom of speech outweigh the cost of a government more susceptible to corruption and less responsive to the needs of the segment of the population that cannot afford to contribute to political campaigns.
It is also worth considering that the US system has produced one of the lowest voter turnout records in the developed world. While there are undoubtedly many factors which lead to low voter turnout, the emphasis on freedom of speech does not seem to bolster Americans’ interest in elections or elected officials, and limitations on outside spending, advertising, and campaign time frames have not had a chilling effect on democratic turnout in the countries which implemented them. To see US voter turnout data from 1800-present, see Appendix 2.3.
The longer a campaign is, the more expensive it has to be to sustain itself so limiting the time frame reduces the necessity of expensive campaigns. However, this system could also be seen as favoring the incumbent, because they have the ability to be seen by the public and make a positive impression throughout their time in office while the challenger is more limited to the campaign time frame in their ability to reach voters. In addition, it could be argued that limiting the time frame of a campaign makes it harder for voters to become informed on candidates and issues.
Allocate TV and radio time
Many countries give all candidates equal access to TV and radio advertising, free of charge. TV advertising is usually the most expensive part of a campaign, so allocating it would reduce the cost of the campaign overall and give each candidate equal opportunity to reach voters.
Ceiling on overall spending
A ceiling on overall spending reduces the importance of donations and slows the ever-increasing costs of elections. A ceiling was introduced in the 1971-4 Campaign Finance Act and Amendments, but was struck down by the Supreme Court Case Buckley v. Valeo.
Public financing system
The public financing system in the US was effective for decades, but the cost of a successful presidential campaign continued to rise and the public financing system did not increase at the same rate. This made the system impossible for presidential candidates to use, even if they believed in the principle. Reforming this system in a sustainable way would require some other limitation on the useful market, otherwise the system would become obsolete again as campaign costs continue to rise. Public financing could also be expanded to Senate and House campaigns.
Many other democracies have public financing systems for their equivalent of presidential and congressional elections. Some countries match all small dollar contributions to candidates in order to amplify their effect. Another strategy is to give public funding to candidates based on the percentage of the vote they received in previous elections.
Recent Efforts to Reform
H.R. 1 For the People Act of 2019
The first bill passed by the House in 2019 included meaningful campaign finance reform. This bill was not passed in the Senate. It requires the FEC to conduct an audit after each election cycle to assess whether any illicit foreign funds were used. The bill also tightened disclosure requirements for political committees and LLCs but not for other organizations not already covered by disclosure requirements like 501(c)(4)s. The For the People Act also created public campaign financing infrastructure. It provided for the establishment of a Freedom From Influence Fund, which matched small dollar contributions to House candidates, and provided each citizen with a $25 voucher to contribute to a House candidate.
In addition, the bill proposed reforming the FEC by making it a five-person commission instead of six. Currently, no more than three Commissioners can be from the same party, but this reform would instead limit each party to two Commissioners with the fifth Commissioner completely independent from either party. Resolutions would pass with three votes instead of four. In the status quo, it takes four commissioners to agree that a violation has occurred in order to take action against the party being investigated. H.R. 1 changes the FEC process so that a majority of Commissioners would have to disagree with the general body’s conclusion in order to stop action being taken. This means that instead of a quorum being required to proceed, a quorum would be required to not proceed.
Federal Election Administration Act (2016)
The Federal Election Administration Act was introduced into the Senate by Tom Udall of New Mexico, but it was never voted on. This Act would abolish the FEC and replace it with a Federal Election Administration (FEA), similar in structure to the reformed version suggested in H.R. 1. It would also include an empowered chairperson to streamline the administrative process and increase accountability. Other agencies with enforcement obligations (like the EPA) use administrative judges to enforce decisions about violations. This bill creates that policy for the FEA to create a legal process for campaign finance violations which allows for sentencing and appeals.
Constitutional Amendment
An important barrier to meaningful campaign finance reform has been the Supreme Court, which ruled repeatedly against limitations on outside spending, and aggregate spending caps for campaigns and individuals. These limits were ruled unconstitutional because they infringed on the First Amendment, the right to freedom of speech. One solution to this challenge would be a constitutional amendment permitting campaign finance limitations. A constitutional amendment can be ratified in two ways. First, two thirds of the House and Senate vote for it, then three quarters of the state legislatures vote for it. The second path (which has never been used) requires two thirds of states to call a Constitutional Convention and propose amendments, and then three quarters of states to support the amendment.
Multiple constitutional amendments have been introduced in both the House and Senate since the 2010 Citizens United decision. The first amendment was proposed in 2011 and it was called the Saving American Democracy Amendment. It failed to pass in the House or the Senate.
Adam Schiff, House Representative from California, introduced a constitutional amendment in 2019 which clarified that reasonable restrictions on outside spending and contribution limits were not prohibited by the Constitution. It also suggested (but did not mandate) that public financing of campaigns was another way to restrict wealth’s undue influence on government.
The We the People Amendment was also introduced in 2019, and along with permitting campaign finance restrictions it also clarified that Constitutional rights do not apply to corporations. This is a contentious issue which reaches farther than campaign finance regulations, but is related to Citizens United because the Supreme Court decision allowed corporations to participate in outside spending and express advocacy because of the corporation’s right to freedom of speech.
Additional Reforms
Freedom of Speech vs. Equality Reforms
Make Independent Expenditures Independent
In the status quo, “independent expenditures” or outside spending exists in name alone for the majority of spending. Super PACS, often run by close friends of former staff members of the candidate who they are supporting, have an intimate understanding of the goals and objectives of the campaign. Rather than acting as independent conduit of free speech, Super PACs have become an extension of the campaign with unlimited fundraising and spending potential. One way to change this would be to treat collusion between Super PACs and campaigns as insider trading, where any material, non-public information which is used by the Super PAC to influence their advocacy efforts is a criminal offense.
Limit Outside Spending to Buckley v. Valeo Expectations
The Supreme Court in Buckley v. Valeo decided outside spending has 6% of the value of direct campaign contributions to a campaign. Direct contributions are limited to $2,800 per individual, so one solution which is inline with the Buckley decision would be to limit outside spending to $46,667. If you take 6% of $46,667 it is $2,800, so this limit creates essentially the same campaign contribution limit which has already been approved by the courts.
Disclosure Reforms
Appropriate Disclosure Level
A debate rages in the US regarding how extensive disclosure requirements should be. The current level, where PACs and Super PACs must disclose their sources of funding but the organizations which are the sources are not required to, is a limited level of disclosure. In the Citizens United decision, the Supreme Court explained that disclosure is essential because it “helps citizens make informed choices in the political marketplace.” However, the disclosure requirements did not keep up with the changes in types of organizations allowed to participate in election advocacy. 501(c)(4) organizations, the main culprits, only became a real factor in campaign finance after the Citizens United decision in 2010.
In the status quo, 501(c)(4) organizations can only put 50% of their spending towards political advocacy. This is disclosure at the 50% level. The other side of the spectrum would be that any organization who puts any money towards political advocacy has to disclose their donors, or 100% disclosure. However, there are concerns that if political advocacy is a minimal part of an organization’s activities, it is not appropriate to connect their donors to the political advocacy. For example, if someone donates to PETA (People for the Ethical Treatment of Animals) they may expect their money to go to maintaining a list of cruelty-free companies, creating and distributing vegan recipes, or advertising about animal welfare issues. If PETA decides to contribute to a Super PAC supporting a presidential candidate, releasing the names of PETA’s financial supporters is not only unhelpful, but it actively works against citizens making informed choices in the political marketplace because it muddies the water by bringing in private citizens unconnected to the funding decision.
The next step in disclosure reform is to decide on the new level of disclosure which is beneficial to American democracy in the post-Citizens United era.
Change the Definition of Independent Expenditures
In the status quo, only spending which literally involves distributing the message is considered “political advocacy” meaning the cost of producing advertising campaigns is not included. Paying an advertising firm to develop a commercial is separate from buying air time for that commercial. One way to improve disclosure is by changing the definition of “independent expenditure” to include all aspects of political advocacy, not just buying air time. This broader definition would increase disclosure from 501(c)(4) organizations and provide the American public with a holistic view of money in politics.
Improve Enforcement by Restructuring the FEC
In addition to the FEC reforms which have already been introduced in Congress (although not passed) there are several other structural changes which could improve the process.
Require all six seats to be filled at all times. One serious challenge to FEC enforcement is the need for four Commissioners to agree to understand any action for it to pass. The likelihood of an action being undertaken shrinks even further when less than six seats are filled. To solve this problem, there needs to be an enforcement method for requiring all seats to be filled. This could look like requiring a full Commission before any other Senate vote can occur, or mandating that Congress cannot recess. The downside of this strategy is that by enforcing the seat requirement, other elements of the government could be slowed down.
Create an appeals process for decisions which do not reach the vote threshold. Currently, if four Commissioners do not approve an action there is no process to continue considering the action. This means that no matter how strongly some Commissioners believe that a violation has occurred, there is no resolution method within the commission. Creating an appeals process, potentially involving an administrative judge, would create an option for enforcing the most serious violations when the threshold cannot be met.
Mandate faster response times. There is very little accountability for the years-long deliberation processes commonly found at the FEC. Response times for each step of the process should be mandated so that voters receive campaign finance information in a timely fashion. The FEC should be accountable to a bipartisan committee if it frequently exceeds the reasonable time frames.
Change FEC priorities. Currently, the FEC prioritizes cases where it believes it can have the most impact, which creates a loophole where organizations under scrutiny liquidate to minimize the apparent impact of prosecuting their violations. While it is important to ensure FEC enforcement has an impact, the FEC needs to recognize the value of cracking down on organizations utilizing the loophole in order to stop the practice and decrease the misuse of 501(c)(4) organizations in the long run. Making this change could include increasing the FEC’s budget for its auditing team so that other impactful cases are not neglected. The 2017 budget was $79 million.
Now that you have finished an overview of the main aspects and challenges of campaign finance reform, consider these questions to help you establish your perspective:
Where do I think the US system should sit on this range?
How do I feel about where the US’s current system sits on the sliding scale of freedom of speech to equality?
What aspects of equality in the campaign finance system am I willing to give up to preserve freedom of speech? What limitations on freedom of speech am I willing to trade for equality?
Should corporations be allowed to advocate in elections?
Should outside spending in elections be allowed?
Which reforms (if any) should be undertaken in the freedom of speech vs. equality section of campaign finance reform?
Where do I sit on the disclosure range?
What level of disclosure in the campaign finance system am I comfortable with? What are the costs and benefits of that level of disclosure?
Am I happy with the status quo, where organizations spending 50% of their money on political advocacy do not have to disclose their donors?
How satisfied am I with the current enforcement of campaign finance regulations?
Would you consider campaign finance reform to be in the top tier of your political priorities?
How has your opinion on the importance of campaign finance as a policy issue changed, if at all?
Appendix 1: Key Terms
1.1 FEC
The Federal Election Commission, or the FEC, was created by the 1971-4 Federal Campaign Act and Amendments. It is the watchdog agency which monitors adherence to campaign finance regulations and enforces the policies. The FEC is led by six Commissioners who are selected by the President and confirmed by the Senate. By law, only three out of the six Commissioners can be from one political party in order to make sure the FEC maintains bipartisanship. Four out of the six votes are required to approve any FEC action, but currently only three seats are filled on the FEC. It is currently not possible for the FEC to enforce campaign finance regulations in the runup to the 2020 Presidential and Congressional elections because the necessary four seats are not filled.
Commissioners serve six year terms, but are able to continue serving past their term until a replacement has been nominated by the President and confirmed by the senate. The seats left open have been vacant from March of 2017, February of 2018, and August of 2019. President Trump has nominated one Republican to fill a seat in September of 2017, but the nomination has stalled, potentially because Republicans and Democrats are usually nominated by the President in pairs to maintain the balance of the Commission (read more about potential reforms to the FEC in the Potential Reforms section).
1.2 Individual contributions
Individual contributions are given by citizens either directly to political campaigns, or to PACs and party organizations which then redirect it to campaigns. Contributions have caps which are adjusted for inflation each year. Campaign and PAC contributions are counted together towards the contribution cap, and party organization contributions have a separate cap.
1.3 Fundraising Organizations
Political committees are organizations which contribute more than $1,000 in a year to influence federal elections, and who are either under the control of a candidate or whose major purpose is the election (or nomination) of a candidate. In order for an organization’s “major purpose” to be electing a candidate, they have to put 50% of their expenditures for a given year towards influencing federal elections. Political committees provide detailed reporting to the FEC about their expenditures, and disclose their donors and donation amounts.
PACs (political action committees) are political committees which coordinate with the campaign to raise and spend fundraising revenue. PAC donations are subject to contribution caps and must disclose their donors to the FEC.
Super PACs are separate from the campaign, and although they are not allowed to coordinate with campaigns, they are often run by people close to the candidate. Super PACs are not subject to contribution caps, so they can raise unlimited sums. Super PACs were created after the 2010 Supreme Court decision Speechnow v. FEC, where the court ruled that spending not connected to the campaign (outside spending) could not be limited. However, Super PACs still must disclose their donors to the FEC.
501(c)(4) organizations are classified by the IRS as social welfare organizations who do not operate for profit and who exclusively work to promote social welfare. They are not political committees because their major purpose is ostensibly not related to influencing a federal election. They can donate unlimited amounts to Super PACs without having to disclose their donors. The FEC decides what the “major purpose” of an organization is on a case-by-case basis.
1.4 Useful Market
The useful market is the area where campaign spending can be used effectively to promote a candidate. In the US, the useful market is virtually unlimited because campaigns are not bound to specific time frames or advertising through specific mediums. The concept of the useful market becomes important when comparing US policies with those of other countries.
1.5 Types of Money
Outside spending/independent expenditures are “independent” from the candidate. This spending is often focused on political advertising and issue ads, and “electioneering communications” (banned by the Bipartisan Campaign Reform Act but then ruled allowable by Citizens United v. FEC). Outside spending can come from non-profits, Super PACS, corporations, individuals, etc. Outside spending cannot come from regular PACs, because they coordinate with the campaign. However, there are common strategies and signaling tactics known throughout the industry which allow campaigns to communicate with their Super PACs without technically violating FEC regulations (for more on how this works, read the Current Policies Section, subsection Outside Spending).
2. Hard money is money which is monitored by the FEC because it is spent on federal elections.
3. Soft money is money intended to be spent on local and state elections, rather than federal elections. This money is regulated on a state-by-state basis, rather than by the FEC, who solely regulates money for federal elections. Soft money is frequently used for things that benefit both state and federal elections, like voter registration drives and ads which advocate specific issues without reference to a federal candidate. Up until the BCRA, national parties could accept unlimited donations of soft money, because it was not subject to the same limits which guided federal campaign donations. Read more about how soft money functioned pre- and post-BCRA in the “Current Policies” section.
4. Dark money is money which the donor cannot be traced. While PACs and Super PACs have to report their donors, 501(c)(4) organizations and shell companies do not. This causes tension in the campaign finance system, because the Supreme Court has consistently ruled that limitations on spending are unconstitutional so long as the donors are disclosed.
5. Gray money is money that is passed between PACs, which makes it difficult and time-consuming to trace the source. By passing money between PACs, the PACs can maintain the appearance of transparency while still concealing their donor base.
In the primary election, candidates must raise $5,000 in 20 states with a maximum of $250 counted per individual donation. The federal government will then match all campaign contributions to the candidate. In exchange, the campaign can only spend $10 million on the primary election, adjusted for inflation (in 2016 the adjusted limit was $48.07 million), limit spending from personal funds to $50,000, and limit spending in each state to $200,000, adjusted for inflation and the state’s population (in 2016 the limit in Wyoming was $961,400 and in California it was $23,092,100).
In the general election, candidates from a major party are eligible to receive a grant of $20 million, plus inflation (in 2020 the available grant is $103.7 million). In exchange, the candidate cannot accept private contributions and can only contribute $50,000 of their own funds. John McCain, the 2008 Republican presidential candidate, was the last person to use this option because the cost of presidential campaigns has risen so much it is no longer feasible to rely on public funds .
According to the FEC, funding is also available for “minor party” and “new party” candidates. “A minor party candidate is the nominee of a party whose candidate received between five and 25 percent of the total popular vote in the preceding presidential election. The amount of public funding to which a minor party candidate is entitled is based on the ratio of the party’s popular vote in the preceding presidential election to the average popular vote of the two major party candidates in that election. A new party candidate receives partial public funding after the election if he or she receives five percent or more of the vote. The entitlement is based on the ratio of the new party candidate’s popular vote in the current election to the average popular vote of the two major party candidates in the election.”
France pursues an aggressive campaign finance strategy. Campaign spending has an overall ceiling, and the useful market for campaign spending is controlled because the official campaign time frame is only two weeks long and no advertising is permitted prior to that. Equal time is allotted for TV and radio advertising for all candidates for free, and no other TV/radio advertising is permitted. Corporations, unions, and advocacy groups are not allowed to contribute to a campaign in any way. Individuals can contribute up to 4,600 euros ($4,992) to a candidate per election cycle. France also has a robust public funding system, where candidates are given a starting grant and then reimbursed for up to 50% of the ceiling on expenses if they receive 5% or more of the vote. This system functions for presidential elections and for the French equivalent of the House of Representatives.
3.2 New Zealand
New Zealand has a milder strategy which limits both overall spending and the useful market for outside spending. The ceiling on candidate and party expenditures is a combined US$1,959,000, meaning that is how much the party can spend in total on all of their candidates and on their party message. In New Zealand, elections are more about the party and less about the individual candidate, so the majority of spending comes from the party to promote party messages. Individual candidates can spend a maximum of NZ$26,000 ($17,240). New Zealand permits outside spending, and non-candidates can spend up to NZ$313,000 ($189,500) but not on TV or radio advertising. There is no limit on the amount an individual can contribute to a campaign.
TV advertising is strictly controlled. Each party is given a set amount of TV advertising time to communicate their message, and receive public funding to subsidize the cost of making the advertisement. Both of these allocations are based on the amount of support the party received at the previous election. Candidates can fund their own advertising pursuant to their spending ceiling, but they cannot advocate the party vote or promote negative messages.
Appendix 4: Chart Data
The section contains the base data for charts and graphs made by ACE.
*Super PAC and outside spending is used in this case as a catch-all term for contributions to nonconnected political committees, primarily Super PACs and excluding Leadership PACs, which are subject to contribution limits. The FEC separates independent expenditures and nonconnected political committee disbursements because only the act of disseminating political advocacy counts as an independent expenditure, whereas nonconnected political committee disbursements also include overhead and the cost of producing the advertisement. In 2016, nonconnected political committees (primarily Super PACs) received and disbursed more than $2.8 billion, but independent expenditures only account for $1.6 billion.
No data was available for this amount, so this estimate is based on the trend that close to 65% of individual contributions come from Large Dollar donors.
Campaign finance is the system by which money is raised and spent to advocate for a candidate or policies during an election. The US campaign finance system is defined by three issues: freedom of speech vs. equality, disclosure, and enforcement. It is a uniquely challenging policy issue because every policymaker was elected and funded through the current system. Campaigns are expensive and increase in cost every year, forcing elected officials to rely more and more on those who can afford to donate large sums every election cycle, and making it less likely officials will pass legislation limiting the power of that same group. The average spent for a successful 2016 campaign was: $957.6—Presidency, $19.4—Senate, and $1.6 million—House. That year 85.3% of Senate races and 95.4% of House races were won by the candidate which spent the most.
Balancing Freedom of Speech vs. Equality is one of the main debates in campaign finance policy. This tension exists because every step towards creating an election system with equal opportunity necessarily limits the speech of some and elevates others to bring everyone onto the same page. For example, if individuals are allowed to contribute a maximum of one thousand dollars to a political campaign, this preserves some amount of equality for a candidate and their supporters, many of whom cannot afford to contribute that amount. But it also limits the freedom of speech of those who can afford to give more than a thousand dollars and want to spend their money supporting a candidate who represents their beliefs. The US system leans towards free speech, and has fewer regulations than most liberal democracies. The only two elements which push the US towards the equality side of the spectrum are (1) an individual contribution limit, which is a cap on the amount individuals can donate to a federal campaign ($2,800 per election cycle) and (2) a public financing system where presidential candidates can receive a grant instead of accepting contributions. However, elections have become too expensive for public financing to be viable. The 2016 winning presidential campaign cost $957.6 million and the public financing option would have provided $96.1 million.
In the landmark decision Citizens United (2010), the Supreme Court decided individuals and corporations could spend as much as they want to support a candidate as long as that spending was independent of the campaign (outside spending). This case (and decisions based on the ruling) lead to the creation of Super PACs; groups which can raise and spend unlimited funds during an election. The rationale behind this decision was that outside spending has minimal value to a campaign, so unlimited outside spending does not risk corrupting the political system.
This decision was based on a Supreme Court case from the 1970s, Buckley v. Valeo, where the Supreme Court decided that outside spending is worth 6% of campaign spending. Regular PACs work with campaigns to raise and spend, so they have the same contribution limits as campaigns. Following the Citizens United decision, outside spending increased by 841% over 8 years to $2.8 billion in 2016, as seen in the chart on the right. Super PACs are a major conduit for outside spending, but they frequently coordinate with campaigns through back channels which undermines the concept of “outside” spending.
*Small dollar 2008 data based on estimates, information not available from the FEC
Reformers who want to move closer to equality suggest limiting or banning outside spending or improving the public financing system so that it is a viable option for presidential candidates, as well as expanding it to Congressional elections. In order to limit or ban outside spending, it is likely that a constitutional amendment would be required because of the Supreme Court’s position. Stricter policing of Super PACs colluding with campaigns is another potential suggestion, and would require buy-in from the FEC. Other reforms which have been implemented in other democracies include limiting the time frame of a campaign (the average US presidential campaign takes 1.5 years, French presidential campaigns take 1 month) to reduce the necessary costs, allocating tv and radio advertising time for free to all candidates who reach predetermined thresholds, and implementing a ceiling on overall campaign spending.
Although the system already leans heavily towards freedom of speech, reformers interested in pushing the system further in towards freedom of speech advocate for eliminating the individual contribution limit for campaigns and removing the public financing system.
Disclosure is the policy where sources of campaign or political advocacy (like advertisements) funding are available to the public. All funding from political committees, PACs, Super PACs, and individual contributions is supposed to be disclosed. A political committee is an organization which influences federal elections by spending, and who are either under the control of a candidate or whose major purpose is the election (or nomination) of a candidate. The FEC requires reporting on the donor and amount donated, and makes that information available to the public. However, if funding comes to the PAC or SuperPAC from 501(c)(4) organization, the donors and amounts are not disclosed. Money where the donor is not disclosed is known as dark money. The only deciding factor between a 501(c)(4) organization and a political committee is what percentage of the organization’s budget is spent on political advocacy. If it is below 50% it is a 501(c)(4) and can keep its donors undisclosed. Many donors use this loophole to obscure their involvement in elections. Because of the room for dark money, the US has limited disclosure.
Furthermore, the FEC definition of political advocacy is a major asset to 501(c)(4) organizations. Paying for the distribution of an advertisement counts as “political advocacy” but the cost of producing that advertisement does not. For example, if an individual starts a 501(c)(4) organization with a million dollars, spends 51% of that money producing a national ad campaign and 49% distributing it, that organization legally does not have to disclose its donors.
In the Citizens United decision, the Supreme Court explained that disclosure is essential because it “helps citizens make informed choices in the political marketplace.” However, the disclosure requirements did not keep up with the changes in types of organizations allowed to participate in election advocacy. 501(c)(4) organizations, the main culprits, only became a real factor in campaign finance after the Citizens United decision in 2010. Disclosure reformers suggest mandating that groups contributing above a certain amount disclose their donors, and the debate is around what that amount should be. In the status quo, 501(c)(4) organizations can only put 50% of their spending towards political advocacy. This is disclosure at the 50% level. The other side of the spectrum would be that any organization who puts any money towards political advocacy has to disclose their donors, or 100% disclosure. It would also be possible to roll back disclosure, so that individuals and corporations are able to spend more on political advocacy without having their names attached.
Enforcement: The Federal Election Commission is a 6-person board of Commissioners responsible for enforcing all federal election laws. The FEC is responsible for the enforcement of all campaign finance legislation, meaning that if the FEC doesn’t function properly, it does not matter what kind of policies are put in place. The Commissioners are responsible for initiating audits and investigations on individuals and organizations suspected of violating campaign finance policies, and they have an investigative team to conduct the audits and investigations. Current enforcement issues include:
1. Gridlock: A maximum of three Commissioners can be from the same party in order to maintain balance on the board, and four votes are needed to proceed with any board action. While this was intended to stop partisan attacks from the FEC, it causes intense gridlock. If four Commissioners don’t agree, there is no recourse or appeals process to continue pursuing a valid campaign finance infraction. In 2016, with all 6 seats filled, the board gridlocked on 30% of enforcement issues.
2. Empty Seats: The gridlock problem is amplified when the board is not fully staffed. Currently, only four seats are filled, meaning a consensus among the two republicans, one democrat, and one independent on the board is required before instigating any sort of investigation or enforcement. From August 2019 to May 2020, only three seats were filled on the board so the FEC was at a standstill. New Commissioners are first selected by the president and then confirmed by the Senate. Although the board has been short of at least one Commissioner since the early days of the Trump presidency, President Trump has only nominated one replacement, who was recently confirmed.
3. Priorities: One of the FEC’s main priorities is focusing on cases where it feels it can have the most impact. That sounds reasonable, but in practice it means that as soon as an organization feels it is genuinely in danger of being penalized by the FEC, it liquidates. The FEC sees little value in investigating or punishing the members of a defunct organization, and so the issue is dropped and the same offenders are free to restart the cycle with a clean record.
4. Statute of Limitations: The statute of limitations for most campaign finance violations is five years, and currently the FEC investigation system does not move quickly enough to prosecute many violators within that time frame. This is especially jarring because for democracy to work effectively, voters would ideally know about campaign finance violations prior to voting in an election, rather than five years after the election when likely the information has no impact on them.
Reformers suggest restructuring the FEC so that it only has five seats; two from each party and one independent. This reform was included in H.R. 1 (2019) a Democrat-lead bill which passed in the House but was never voted on in the Senate. H.R. 1 also proposed requiring a majority vote to rule against the recommendation of the investigative body rather than for it, in order to reduce the number of valid campaign finance violations which go unpunished because of empty seats or partisan bias. Additional reform suggestions include creating an appeals process for decisions which don’t reach the vote threshold, and increasing the FEC budget in order to mandate faster response times on cases and include investigating defunct organizations in the FEC priorities.
The other perspective is that the FEC was built in a way to ensure gridlock, so that it is nearly impossible for one party to unfairly persecute the financial backers of the other party. This is one valid argument against reforming the structure of the FEC, but does not respond to suggestions for an appeals process, faster response times, and investigations of collusion and smaller organizations.
Reflection Questions
Now that you have finished an overview of the main aspects and challenges of campaign finance reform, consider these questions to help you establish your perspective:
Where do I think the US system should sit on this range?
How do I feel about where the US’s current system sits on the sliding scale of freedom of speech to equality?
What aspects of equality in the campaign finance system am I willing to give up to preserve freedom of speech? What limitations on freedom of speech am I willing to trade for equality?
Should corporations be allowed to advocate in elections?
Should outside spending in elections be allowed?
Which reforms (if any) should be undertaken in the freedom of speech vs. equality section of campaign finance reform?
Where do I sit on the disclosure range?
What level of disclosure in the campaign finance system am I comfortable with? What are the costs and benefits of that level of disclosure?
Am I happy with the status quo, where organizations spending 50% of their money on political advocacy do not have to disclose their donors?
How satisfied am I with the current enforcement of campaign finance regulations?
Would you consider campaign finance reform to be in the top tier of your political priorities?
How has your opinion on the importance of campaign finance as a policy issue changed, if at all?
Campaign finance is the process of raising and spending to fund campaigns and advocacy in public elections. Funding is costly and growing. The average spend for successful 2016 campaigns per candidate was $957.6 million—President, $19.4 million—Senate, and $1.6 million—House. These amounts are beyond the capacity of most prospective candidates, forcing them to successfully navigate fundraising or abandon the race. Improving the process is challenging because all incumbents and successful legislation were funded through the current system.
Balancing Freedom of Speech vs. Equality is one of the main debates in campaign finance policy. The U.S. system leans towards free speech, and has fewer regulations than other democracies. This means individuals and corporations can speak (advertise) as loudly and often as they like. The only two aspects which tend towards equality are:
1. An individual contribution limit, which is a cap on the amount individuals can donate to a campaign ($2,800 per cycle)
2. A public financing system where presidential candidates can receive a grant instead of accepting contributions.
However, elections have become too expensive for public financing to be viable. In the landmark decision Citizens United (2010), the Supreme Court decided individuals and corporations could spend as much as they want to support a candidate as long as that spending was independent of the campaign (outside spending). This case (and decisions based on the ruling) led to the creation of Super PACs: groups which can raise and spend unlimited funds during an election. Regular PACs work with campaigns to raise and spend, so they have the same contribution limits.
This chart shows types of spending before and after Citizens United. Large dollar donors (giving more than $200 per election cycle) spend the most across the board, and outside spending increased by 841% over 8 years to $2.8 billion in 2016. Reformers suggest limiting or banning outside spending or improving the public financing system to reduce the potential for corruption.
*Small dollar 2008 data based on estimates, information not available from the FEC
Disclosure is a requirement to reveal funding sources. The US has limited disclosure. PACs, Super PACs, and campaigns must report their donors but many private organizations and corporations which donate to them are not required to disclose their donors, so in many cases it is unclear where the money is coming from. Political spending where the source is not disclosed is called dark money. Disclosure reformers suggest mandating that groups contributing above a certain amount disclose their donors, and the debate is around what that amount should be.
Enforcement: The Federal Election Commission is a six person bipartisan board responsible for enforcing federal election laws. It struggles with responsiveness and partisanship because four members are required to approve enforcement actions. The Commission has been short two members for the past two years, compounding the dysfunction. Notices of campaign finance violations may take years to reach voters, or go unpunished altogether. FEC reform proposals include creating an appeals process for issues that don’t get four votes, mandating faster response times, and restructuring the board to streamline enforcement. H.R.1 (2019) is a bill passed in the House that included many of the suggested reforms.
