5
5
If the proposals we discussed in the last chapter are bromides to avoid, what then constitutes an affirmative agenda for improving the performance of America’s dysfunctional politics? It starts with addressing the most problematic features of the party system, including the vast ideological gulf between the parties, their increasing internal homogeneity, the prevalence of constituencies safe for one party or the other, the news organizations and outside groups’ reinforcement of ideological purity and extreme partisanship, and the rough parity between the parties nationally that contributes to the intensity and stakes of conflict. All these factors together produce a hotly contested, never-ending permanent campaign to control the White House and Congress. The asymmetric polarization that has recently developed has made the poisonous brew that these characteristics of the party system pose for governing within the U.S. constitutional system and political institutions even more toxic. As we have described in earlier chapters, much of the dysfunctionality Americans observe in their government is a direct consequence of the GOP’s unabashed ambition to reverse decades of economic and social policy by any means available.
Political parties play a crucial role in every well-functioning democracy. They organize a complex political world into digestible choices for voters and provide a basis on which elected officials can act for their constituents and the country and for which citizens can then hold them accountable. Party differences are essential to democratic choice and political accountability. We make no brief for weakening parties, delegating excessive authority to nonpartisan entities, or elevating bipartisanship as an inherently more constructive and responsible basis of policy making. Instead, we seek parties that are less ideologically polarized, more accepting of each other’s legitimacy, and more open to genuine deliberation and bargaining on issues of fundamental importance to the future of the country. Most importantly, America needs parties that can function constructively in a governance system that requires an unusual degree of consensus to act.
While we can locate no single institutional fix, we have identified three avenues of electoral reform that have some promise of cooling the war between the parties. The first is to moderate politics by expanding the electorate. Higher turnout would pull more citizens with less-fixed partisan and ideological commitments into the electorate. Near-universal voting (achieved through Australian-style mandatory attendance at the polls, which we explain more fully later) would virtually eliminate the parties’ incentive to diminish the turnout of those likely to support their opponent and to mobilize their strongest supporters.
The second is to reduce the presumed bias against moderate voters and candidates by altering how votes in the election are converted into seats in government. The most visible proposal is to reduce the gerrymandering of legislative districts that produces more lopsided constituencies for the two parties. Another is to replace closed primary elections, which attract ideologically skewed electorates that favor similarly disposed candidates, with open or semi-closed primaries. Finally, instant runoff voting (IRV), where voters can rank their candidate preferences, and electoral arrangements that provide a degree of proportional representation offer some promise of reducing polarization.
The third avenue of electoral reform seeks to break the polarizing dynamic of the parties through changes in campaign fund-raising and spending rules and practices. The most promising methods are to mobilize large numbers of small donors and to enforce the transparency and genuine independence of super PACs and their nonprofit affiliates.
A political system that restrains its citizens’ voting is vulnerable to two corrosive phenomena: turnout in which the most motivated voters, usually ideological activists, have much greater leverage than their numbers would indicate, and a temptation by partisan political operatives to manipulate turnout to their own advantage, often by suppressing votes of those favoring the other side. Both phenomena have afflicted American democracy and contribute mightily to the polarization the country faces today and questions about the legitimacy of election outcomes. The process of manipulating voters and elections has led to a series of contested elections that have inflamed partisans and decreased public trust in the election process.
That reality suggests that Americans should explore multiple ways of making voting by eligible citizens easier, not harder, while guarding sufficiently against voter fraud and illegitimate manipulation of the voting process. They should also expand the vote to reflect more accurately the sentiments and orientations of the broader citizenry, not the smaller extremes. There are many avenues to consider.
Many of the problems with voting in the United States stem from a bulky and outmoded voter registration system in which the burden of registration is on the individual voter. In virtually every other established democracy, the burden is on the government. In the U.S., every state has its own system and requirements, and many lack the modern technology to ensure that they can track a highly mobile population of voters, who move frequently within cities and states and across state lines.
The Pew Center on the States has noted:
In the 2008 general election, an estimated 2.2 million eligible Americans were unable to cast ballots due to problems with their voter registrations. Outdated and inaccurate voter rolls and a heavy dependence on new voter registrations submitted by unregulated third-party groups led to troubling questions about the integrity of our elections. To make matters worse, antiquated paper-based registration systems imposed unnecessary costs and administrative burdens on state and county election offices already facing severe fiscal constraints.1
What to do? First, the states should automate the registration system, so voters can register online and take their voter records with them when they move.2 Automating registration—moving from paper to electronic records—is both cheaper and more effective. In South Dakota, registration at the Department of Motor Vehicles increased eightfold after the system was automated.3 Nine states currently offer online registration (Arizona became the first, in 2002), with other states still awaiting implementation. The process is both easier for voters and dramatically less expensive for states and localities. Online registration for all Americans, which nonprofit groups such as the Pew Center on the States and the Brennan Center for Justice at NYU have recommended, should be a long-term goal.4 It offers an additional advantage, because voters themselves are sending information directly to election officials; the potential for data entry errors diminishes, likely translating into more accurate voter rolls.
Second, local governments should harness the private sector to help create better, more reliable, and more up-to-date voter lists. The lists, which determine whether voters are qualified to vote, are essential to the system. There are many outside databases that can match with voter registration lists to verify records and keep lists up-to-date. Local governments responsible for building, maintaining, and updating voter registration lists can save money via such data sharing. The process can also reduce partisan manipulation of voter rolls by offering a range of objective databases to merge and purge voter lists; eligible voters being kept off the rolls either inadvertently or intentionally is less likely.
Third, computer technology could give voters more flexibility in where they vote, so a person who works long hours away from his local polling place would be able to vote more easily. Governments should allow hassle-reducing features such as an option to vote near work or at polling centers. Easily accessed and equipped sites like superstores and arenas would make it much easier for people to vote at convenient times. For several years, voters in Larimer County, Colorado, have been able to vote at Walmarts and other sites that have ample parking and are more convenient. The result? A systematic study comparing Larimer County with a county that lacks vote centers shows that the centers increased turnout by 2.5 percent to 7.1 percent.5
Fourth, nationally implemented election-day registration (EDR) would further spur increases in turnout. A number of states, including Wisconsin, Maine, and Minnesota, have implemented it. One nonpartisan report finds that voter turnout in states with EDR averages 10 to 12 percentage points higher than states without EDR.6 States that are demographically and culturally disposed to higher turnout have been more likely to adopt EDR than other states. Nonetheless, the evidence demonstrates a significant, independent boost in turnout from EDR. Unfortunately, that positive impact has led to partisan (Republican) efforts in some states to roll back EDR, evidently out of concern that the increased turnout will benefit Democrats. Ohio and Maine passed laws ending EDR, but in Maine, where EDR has been widely popular, voters overwhelmingly rejected the repeal.7 As with many of these reform ideas, sustained energy and resolve are needed to overcome both inertia and partisan opposition. The Maine example suggests that there will be sizable voter support for these ideas, which may grow as frustration with dysfunction leads more Americans to seek appropriate reforms.
A larger problem in the era of dysfunction is that America also needs to vigorously fight the efforts to restrict and manipulate votes. Republican-dominated state governments in places like Kansas, Indiana, Georgia, and South Carolina, among others, have moved aggressively in the past two years to narrow the franchise for partisan political gain. These states have altered their voting rules, both by instituting tough voter ID laws and by using other ploys such as disenfranchising previously legitimate former felons, eliminating EDR, and reducing early voting in areas where Democrats have voted in advance of Election Day. Florida’s Republican governor and legislature, for example, eliminated early voting on Sunday in an effort to thwart African-American churches’ efforts to get out the vote.
Laws requiring voters to present photo identification at the polls should also make the IDs and any necessary documents, like Social Security cards and birth certificates, available for free. They can help those in poor neighborhoods where many residents cannot easily travel to government centers to obtain documents. But many Republican-dominated states are creating huge roadblocks to make it much harder for certain groups of Americans to get those IDs. The Associated Press reported on a study in South Carolina showing that African-American voters are disproportionately hurt by that state’s new voter ID law.8 In Texas, the political intent of its voter ID law is clear: voters can use a concealed-weapon permit to vote, but not a student ID. In New Hampshire, the Republican House speaker told a Tea Party gathering that he supported the law because it would decrease student voting: “They’re foolish. Voting as a liberal, that’s what kids do.”9
Concerted efforts to raise roadblocks for voting haven’t been evident since the days of the poll tax in the 1950s and 1960s—a move in Southern states that effectively disenfranchised poor black voters. And the efforts may increase: laws to restrict or constrain voting via voter ID or other methods in Mississippi, Texas, and South Carolina must currently be cleared in advance by the U.S. Justice Department under the Voting Rights Act of 1965. But the Supreme Court has already come within an eyelash of striking down the preclearance provision of the Voting Rights Act (naturally, by a 5–4 vote). Congress should consider a new voting rights act to implement national protections for voters. The act would presumably go beyond the Southern states included in the original act and should have provisions like the following:
•Mandate that people must be able to obtain any IDs required for voting for free—including not just the IDs themselves, but costly supporting documents, like birth certificates; mandate that all voters would be able to find such IDs widely available at reasonably accessible sites, including mobile vans, if there are no offices within ten miles of eligible voters.
•Allow civil rights groups and the minority voters they represent to “opt in” to the Voting Rights Act by filing an administrative complaint with the Justice Department when their voting rights are constrained. Election reform expert Heather Gerken has suggested this approach as a way to protect minority voters while getting rid of the Roberts Court’s likely argument for why Section 5, the preclearance provision, is unconstitutional.10 This opt-in provision could cover the entire nation, without trying for the much harder expansion of the Voting Rights Act to all states.
•Require that polling places accept valid student IDs on equal terms with any government-issued ID.
•Mandate that any identification requirement contain a provision—as Rhode Island’s voter ID law does—allowing voters who lack an approved ID to confirm their identity and have their votes counted, by signing an attestation that matches their signatures on file with their voter registration.
•Reward states that adopt best voting practices or enact policies that result in voter turnout gains generally, as well as specifically among minority, young, older, and disabled voters, perhaps with extra federal funds to administer elections or to buy voting machines.
•Create a separate federal ballot. The problems with disastrous election disputes such as the 2000 presidential contest and votes using the infamous and convoluted “butterfly ballot” in Palm Beach County, Florida, are often caused by election officials who cram too many local and state contests, along with ballot initiatives, on the same ballot with presidential and congressional elections. A separate federal ballot, using a nationally acceptable format, would have a maximum of three contests (president, Senate, House). It would eliminate costly sideshows such as the 2000 dispute or the one in a 2008 congressional race in Sarasota, Florida, caused by poor ballot placement for the House candidates. Such disputes add to the partisan division and high levels of voter distrust.
The organization “Why Tuesday?” which Norman Ornstein helped to form, has regularly asked prominent political figures, including presidential candidates, if they know why the United States votes on Tuesdays. Almost none have answered correctly, and many, including veteran lawmakers, mistakenly believe it is a constitutional provision. In fact, Tuesday voting stems from an 1845 law, enacted because of market day. In early agrarian American society, Saturday was for farming, Sunday was the Lord’s day, Monday was for travel to the polling places at the county seat, Tuesday for voting and return home, Wednesday for market day, and Thursday for work.
In contemporary nonagrarian America, Tuesday voting is inconvenient for many working people; surveys show that 25 percent or more of nonvoters say that work or conflicting schedules impeded their ability to vote. For many people, the only opportunities to vote on Election Day are early in the morning, before work, or in the evening after work. The polls are usually the most crowded at these times, with long lines that discourage people. One solution is to pass a law that would change the federal Election Day to the weekend, as countries such as Iceland, Sweden, and New Zealand do (and some American states, like South Carolina, do for primaries); the best solution would be a twenty-four-hour election period from noon Saturday to noon Sunday. This schedule would eliminate Sabbath conflicts and give voters many more opportunities to get to the polls. If a weekend voting law were accompanied by a three-day early voting period on the Wednesday, Thursday, and Friday before the election, people away for the weekend would be able to vote at the polls as well.
In both primaries and general elections in the United States, party professionals and consultants focus on bases: how to gin up the turnout of the party’s ideological base and suppress the turnout of the other side. Nothing has forced discourse and political strategy away from the center to the extreme more than that focus. It has encouraged a concentration on hot-button issues that appeal to the party bases, like guns, abortion, immigration, and same-sex marriage, and led to more and more extreme rhetoric and exaggerated positions to accomplish the larger political goals.
Our earlier suggestions, if implemented, could significantly expand the electorate, but none would be as effective as adopting a version of the Australian system of mandatory voting. As the political scientist William Galston has noted, “Thirty-one countries have some form of mandatory voting, according to the International Institute for Democracy and Electoral Assistance. The list includes nine members of the Organization for Economic Cooperation and Development and two-thirds of the Latin American nations. More than half back up the legal requirement with an enforcement mechanism, while the rest are content to rely on the moral force of the law.”11 The Australian model would work best for the United States.12
In the Australian system, registered voters who do not show up at the polls have to either provide a reason for not voting or pay a modest fine, the equivalent of about $15. The fine increases with subsequent offenses. People do not have to vote. They can cast a ballot for “none of the above.” Individuals can avoid the fine by providing a written excuse, such as for illness or travel. But the possibility of a fine has proven to be a powerful motivator, in the same way a five-cent tax on shopping bags in the District of Columbia has motivated people to bring their own bags or walk out of the supermarket juggling an armload of cans. In Australia, after over seven decades under the law, the result is a turnout rate of more than 95 percent, with roughly 3 percent choosing the “none of the above” option.13 The fine, of course, is an incentive to vote, but the system has also instilled the idea that voting is a societal obligation.
Higher turnout is a desirable goal, but it does not necessarily mean a healthier democracy. Witness the “elections” in the former Soviet Union, which claimed a 99 percent turnout. The Australian system has also elevated the political dialogue. Australian politicians across the political spectrum have told us that it changes the way they campaign because they know that all their fellow citizens, including their own partisans, adversaries’ partisans, and nonpartisans will be at the polls. The way to gain votes does not come from working the base to a fever pitch, but from persuading the centrists—the same kinds of voters who are increasingly left out of the American political process. In Australia, a candidate appealing to the extremes is destined for failure.
Ideally, the U.S. Congress would pass a law making poll attendance mandatory for federal primary and general elections. Of course, the chance such a law would pass is, in a favorite phrase of George W. Bush, “slim to none, and slim just left the building.” Surveys show that substantial majorities of Americans oppose mandatory voting. Americans don’t like compulsory anything; they value the freedom not to vote. But they may change their opinions after another lengthy period of dominance by political extremes and the divisive discourse, agenda, and outcomes that follow.
Mandatory voting comes with a price: a modest loss of freedom. But the revitalization of the rapidly vanishing center in American politics and the diminishment of the ideological base would more than balance that loss. If more Americans began to call for mandatory attendance and to educate others about why it would benefit the political system, it might become feasible as a long-term solution.
Another option is to provide an incentive rather than a disincentive. Mickey Edwards, a scholar and former Republican lawmaker from Oklahoma, suggested to us that the government offer voting Americans a $10 credit on their income tax bills (perhaps a refundable tax credit for poor people). The cost to the Treasury makes that option less than likely, but other possible incentives may have the same effect. One feasible option is a lottery—an election PowerBall with a large prize, in which a person gets a ticket in exchange for a voting receipt. Lottery mania could enhance turnout substantially. That said, we prefer a change that strengthens the civic fabric of society, one with responsibilities and opportunities for citizens.
Another approach to encouraging less ideologically polarized parties is to diversify the constituencies of candidates seeking election or reelection to the Congress and state legislatures. Redistricting reform could reduce the number of seats that are overwhelmingly safe for one party or other; adopting primary rules that open up the process to give less advantage to the most ideologically extreme activists and voters; and using alternatives to the single-member district, plurality systems that are most common in U.S. legislative elections.
The United States is an outlier in the democratic world in terms of how politicians shape the rules that affect their own electoral fortunes. This factor is especially notable in establishing legislative district boundaries. While most countries with single-member districts use nonpartisan boundary commissions to redraw lines so they reflect population shifts, in America most state legislatures create the maps for both congressional and state legislative districts through the regular legislative process. Gerrymandering—the manipulation of district boundaries to protect or harm the political interests of incumbents, parties, or other groups—began in the early years of the republic and has been a source of controversy and criticism throughout American history. Since the Supreme Court in the 1960s established the “one person, one vote” (equal population) requirement, each decennial census has set off a wild scramble across the country to garner political advantage while meeting the letter of the law. This picture is not pretty, and there are many good reasons for changing the redistricting process as some states already have, most recently, California.
For our purposes here, however, the question is whether such reform would make the parties less ideologically polarized and more willing to work together in a deliberative process. The answer is not as simple as it might first appear. The danger facing moderate candidates for office has metastasized to other levels like the Senate, where constituency lines never change and redistricting is absent. Redistricting would most likely not create widespread change. The U.S. Senate offers a prime example. Jiggered districts did not cost Republican Senator Robert Bennett of Utah even the chance to run for his party’s renomination for his seat or unseat Lisa Murkowski in an Alaska Republican senatorial primary. Nor did they move then Senator Arlen Specter to switch parties in Pennsylvania, which he candidly admitted was because he simply could not win a Republican primary against an arch-conservative foe. Given the larger changes in partisan dynamics, imagining that a massive change would occur with redistricting reform would be foolish.
On the one hand, scholars have demonstrated that gerrymandering accounts for at most a modest share of the recent polarization.14 To be sure, partisan and bipartisan gerrymandering in individual states has paid dividends in the form of seat gains for the party controlling the process or safe seats for incumbents of both parties. Egregious examples of politicians deciding who their voters will be (before voters have the opportunity to decide which politicians will represent them) are manifold. But a host of factors, including the geographical clustering of like-minded citizens and the inevitable trade-offs between partisan gains and safe seats constrains the national impact of such self-interested mapping on the number of lopsided Democratic and Republican districts. Removing all political manipulation from redistricting would very likely increase partisan fairness within states and marginally grow the number of competitive seats, but it is no panacea for the ideological polarization of the two parties’ constituencies.
On the other hand, redistricting reform could play a very constructive role in curbing the extreme partisanship that extends well beyond ideological differences. Redistricting has become a major front in the permanent campaign of both parties. The parties devote enormous energy and resources to winning control of key state legislatures and governorships and then designing, enacting, and defending in the courts the maps that advance the interests of the controlling party. Party members in Congress and state legislatures find their own interests in reelection and majority status importantly connected to these efforts, which makes them even more inclined to cooperate with the strategic partisan team play that drains the policy-making process of its deliberative capacity. One needn’t see gerrymandering as the major source of partisan polarization in order to believe that redistricting reform can contain and possibly reduce the escalating partisanship in American politics and ameliorate the poisonous ideologically driven culture.
The menu of possible reforms is familiar.15 One reform is to delegate authority to an independent redistricting commission. Some states have chosen this option, most recently after citizens’ groups utilized the initiative process. California, particularly notorious for noncompetitive congressional and state legislative districts, turned to an independent commission for its post-2010 redistricting. Its 2012 election results will show if that effort worked. The structure and rules of redistricting commissions shape their processes and outcomes; they can suffer from the same pathologies as the usual process if not designed properly.
Judicial intervention in the redistricting process has been common since the Supreme Court’s landmark decisions in the 1960s, starting with Baker v. Carr. It might be a promising avenue for constraining gerrymandering. Based on provisions of the Voting Rights Act, federal courts have acted to prevent minority-vote dilution as well as to limit the extent to which states can take race into account in drawing boundaries. They have also enforced the equal population standard, although their exacting standard on one person, one vote to the exclusion of other considerations may well have facilitated rather than constrained gerrymandering. Virtually all redistricting maps are now subject to aggrieved parties’ challenges in federal or state courts, but courts have little basis or inclination to step into the thicket of partisan gerrymandering.
Another approach to reform is to alter the redistricting standards that govern the process in individual states. Florida, a swing state in presidential elections that has overwhelming Republican majorities in its House delegation and state legislature, is drawing districts under new standards approved by a voter initiative designed partly to limit gerrymandering that protects parties and incumbents. Most state redistricting standards—dealing with such matters as contiguity, compactness, adherence to existing political and geographical boundaries, and respect for communities of interest—have had relatively limited impact in constraining gerrymandering. Some states are addressing this by adopting explicit standards for partisan fairness, competition, and politically blind redistricting.
Another fruitful approach is to increase transparency and citizen involvement in the redistricting process. Some states have adopted requirements to hold public hearings, post all data used by redistricting authorities as well as draft maps on public websites, and provide ways that citizens can submit alternative maps. Reformers have come up with a number of initiatives, including one in which we have helped, to develop mapping software and make it widely available. By using the open-source software available at www.publicmapping.org, anyone can draw district lines with real census data and maximize criteria such as communities of interest (cities, counties, even neighborhoods), partisan competitiveness, or geographic compactness. Then anyone can contrast the results with the highly manipulative plans of political actors and consultants and make them available to courts if the political plans fail.16 Use of the public mapping software in Virginia and Michigan showed that it is indeed possible to create districts equal in population but much better in representing natural communities of interest and fostering electoral competition. Much work remains to be done to empower this form of citizen involvement.
In virtually all contests for the Senate, House, governorship, or state legislature, candidates must win their party primary before moving to the general election. Thus, party election laws are crucial, but they vary greatly among the states.17 So-called closed primaries limit participation to voters who declare their party affiliation at a specified time before the election. Semi-closed primaries allow independents to participate and/or allow new voters to register and choose their party on the day of the primary. Open primaries come in two forms: (1) Blanket primaries feature a single ballot with candidates from all parties; all participants may vote office by office in some or all of the party primaries. The top vote receiver from each party becomes that party’s nominee in the general election. (2) Top-two vote-getter (TTVG) primaries are formally nonpartisan. Candidates may list a party preference but not a party affiliation. All voters choose office by office from among all candidates. The top-two vote receivers (even if both list the same party preference) face a runoff in the general election.18
Not surprisingly, closed primaries tend to produce lower turnout, attract more ideologically extreme voters, and select fewer moderate candidates. Semi-closed primaries produce somewhat higher turnout, attract more ideologically diverse voters, and choose more moderate candidates. The differences between these two primary systems are modest but significant.19
Several states, including Louisiana, Alaska, Washington, and California, have experimented with open primaries. In 2000, the Supreme Court found California’s blanket primary to be an unconstitutional violation of the parties’ right of association. That prompted the state of Washington to replace its blanket primary with a TTVG system, which the Supreme Court subsequently upheld. In 2010, California voters approved an initiative establishing the same TTVG system, which is now in place for the 2012 election.
The form of open primary matters in terms of its ability to encourage a broad group of nonextreme voters to play a role in selecting candidates. TTVG proponents argue that their system makes it easier for relatively moderate candidates to be nominated and elected to public office. Empirical evidence of the impact of this form of open primary is very limited. The Public Policy Institute of California, which has carefully parsed the available evidence, concludes that TTVG is unlikely to change California’s political landscape overnight and its overall effect will probably be modest.20 This is partly because voters often cross party lines to support incumbents. Nonetheless, TTVG offers the possibility of producing more moderate elected officials after a period of adjustment. An added practical virtue of the open primary is that states can implement it more easily than reforms like mandatory attendance at the polls.
The objective of primary reform is to increase the number of moderate voters and candidates participating in the nomination process. While the outcome is uncertain, the likely direction of change surely merits states’ further experimentation along these lines.
The U.S. electoral system is dominated by winner-take-all rules. Single-member districts with plurality winners create powerful forces favoring a two-party system and an electoral geography producing vast areas of one-party dominance. This pattern was described many years ago as Duverger’s Law, for French social scientist Maurice Duverger.21 Many voters have little opportunity to elect a representative whose public views are consistent with their own. Third-party and independent candidates have virtually no chance of winning elections; at best, they can aspire to be spoilers by drawing enough votes from the most broadly preferred candidate to produce a plurality victory for the major-party opponent. Even presidential elections, which are inherently winner-take-all (only one president at a time), are problematic. When all the electoral votes in each of forty-eight states are allocated to the plurality winner of the popular vote in that state, it creates the possibility and occasional reality of mischief—the election of a candidate who loses the national popular vote or whose victory results from the presence of an independent or third-party spoiler.
The states could deal with some of these drawbacks by using the above-mentioned Australian-style instant runoff voting (IRV), sometimes called the alternative vote.22 Voters rank candidates in order of choice, allowing ballot counts of a single round of voting to perform like a series of runoff elections. Until a candidate receives a majority of votes, ballots cast for the lowest-placing candidate are redistributed according to each voter’s next choice. IRV produces majority winners, eliminates the spoiler role, and reduces the “wasted vote” calculation for minor-party candidates, allowing them to participate more fully in the election process and work to build their party’s support. IRV would also complement a presidential election system based on a direct national popular vote. Building more legitimate majorities in this fashion (by eliminating the Electoral College and plurality outcomes) could well extend the electoral reach of the major parties and thereby reduce their ideological polarization.
A more ambitious way of pushing this same logic is through proportional representation (PR). Based on the principle that any group of like-minded voters should win legislative seats in proportion to its share of the popular vote, PR facilitates the direct representation of racial and political groups and encourages multi party systems and broad coalitions within legislatures. There are many types of PR systems, but the one that the United States might be most able to adapt is the single transferable vote (STV) with multimember districts, that is, more than a single candidate is elected at large from the same constituency.23 To be elected, candidates need not capture a majority, just the share of the vote determined by the size of the electorate divided by the number of positions to fill. Each voter gets one vote, which can transfer to another candidate in accordance with that voter’s instructions if his or her first choice already has enough votes or has no chance to be elected.
The United States has had some modest experience with multi member districts in state legislative elections, and the results are encouraging. Illinois, for example, has experimented successfully with such a system. There is no constitutional impediment to using multimember districts in congressional or state legislative elections, although a federal law passed in 1967 requires single-member districts for elections to the House of Representatives. The historical experience in the U.S. with alternative electoral systems and the more wide-ranging comparative evidence across the democratic world suggest that some form of PR would reduce the impact of gerrymandering, increase turnout, better represent minority interests, provide a more accurate representation of majority popular sentiment, and encourage depolarization in the current party system.
We are in no way full-throated adherents of moving fully to proportional representation; some PR systems in Europe and elsewhere encourage a splintering of the party system, with extreme parties arising because they can get a foothold and seats in the legislature and force unnatural coalitions in which extreme groups hold the balance of power. In Israel, where the threshold for representation is particularly low, ultrareligious parties have in effect held coalition governments of the left, center, and right hostage for decades to extreme policies that do not reflect the positions or desires of the country’s majority. We recognize that the details of any such plan are important, the complications and trade-offs significant, and the uncertainty far from trivial. But it would be shortsighted to ignore the costs of winner-take-all electoral politics and refuse at least to consider viable alternatives.
The path to significant restrictions on an out-of-control money system after Citizens United is steeply uphill. The Federal Election Commission, which has three Republican commissioners determined to nullify federal election law, would need dramatic change—something President Obama could achieve, at the cost of infuriating Senate Republican Leader Mitch McConnell, by aggressive use of his recess appointment power. And the five members of the Supreme Court who made up the majority in Citizens United—justices Kennedy, Roberts, Alito, Scalia, and Thomas—would also need to change. What can reformers do?24
First and foremost, reformers must aggressively try to restore the effectiveness of two provisions of the law the Court affirmed in Citizens United—(1) disclosure, and (2) the separation of independent expenditure groups from the candidates and campaigns they support. One legislative remedy, the DISCLOSE Act, passed the House in the 111th Congress but as we noted earlier, died in the Senate on a filibuster by a single vote. As another tragic example of asymmetric polarization, every single Republican, including all those who had strongly supported campaign finance reform like Olympia Snowe of Maine and John McCain, voted against it.
The DISCLOSE Act would have required the organizations running independent spending campaigns to disclose the identity of their large donors and to reveal the donors’ identities in any political ads they fund. (To avoid opposition from the nonprofit community, the bill exempted all long-standing, nonprofit organizations with more than 500,000 members from having to disclose their donor lists.) A stripped-down bill would be a useful antidote to the poisonous interaction between huge money spent on campaign ads and subterfuges to ensure the contributors can remain anonymous. For all the reasons we suggest in Chapter 2, unlimited contributions are themselves deeply corrupting, but disclosure at least provides some form of prevention.
Inadequate disclosure is not the only problematic feature of super PACs that needs attention. Another is the fiction that their so-called independent spending activities are truly free of the candidates and parties they support. The requirement of independence is routinely honored in the breach by nearly everybody participating in the super PAC farce. Two court decisions in 2010—Citizens United and SpeechNow (the latter a decision of the Court of Appeals for the District of Columbia)—allowed unlimited contributions to independent expenditure-only PACs. But the Federal Election Commission’s “advisory opinions” laid out rules for the so-called super PACs and gave them a green light for mendacity that makes laughable the candidates’ claims that they have no connections with the super PACs created in their names.
To start, Congress could pass a new law sharply tightening the anti-coordination provisions that require unlimited donations to be totally independent of candidates and their campaigns. Every serious presidential candidate has a super PAC that can collect unlimited amounts for “independent” expenditures; people who are intimates of the candidates, often directly from their campaigns, run those “independent” groups. The idea that they do not communicate with or coordinate with the candidates and their campaign operatives defies common sense. A Rick Perry campaign ad in late 2011 used extensive video footage taken directly from Perry super PAC ads. Another FEC loophole allows the candidates themselves to appear at super PAC fund-raisers, so long as they do not directly solicit unregulated money. The super PACs are plainly an avenue for candidates to evade the law that limits contributions. A PAC created for the purpose of supporting a single candidate is itself a violation of the law requiring independence, but the FEC has refused to implement regulations that would make that clear and ban such behavior.
Even the political parties have now formed their own super PACs, albeit through legally independent organizations but staffed by former party officials working aggressively to advance partisan interests in the election. These groups reinforce and exacerbate the partisan divide, and do so in a way that mocks the notion of independent spending. Super PACs are starting to form to boost individual members of the Senate and House.
A new law that flatly outlaws the super PACs would be the best route. But as the DISCLOSE Act vote in the 111th Congress shows, passing any campaign reform law without sixty Democrats in the Senate and a Democratic majority in the House is next to impossible. Also close to impossible would be reform of the FEC or a new set of commissioners, at least as long as Mitch McConnell remains Senate Republican Leader; he has made it clear that protecting the FEC as it now exists, that is, as a lawless agency, is a top priority for him. As Public Citizen’s Craig Holman has noted, “[McConnell] is really the whole key to the FEC. . . . He realized several years ago that a very effective way to minimize the effect of federal laws is to undermine the regulator.”25 So absent a recess appointment strategy on the part of the president, the government has to look for other options to provide disclosure and prevent brazen and illegal coordination. As a first option, the Justice Department could prosecute violations of the coordination bans in cases where the brazen behavior has been most evident. Justice does not need to wait for the FEC.
Other federal agencies could take the same route. Consider the problem of 501(c)4s: their designation under the Internal Revenue code enables a nonprofit social welfare organization, which must operate primarily to further the common good and general welfare of the people, to engage in lobbying and advocate for issues. As we outlined in Chapter 2, operatives like Karl Rove and Norm Coleman have manipulated the IRS process to create 501(c)4s that are parallel to their other organizations—either directly political ones (called 527s) or think tanks—so that they can raise unlimited sums for campaign purposes from undisclosed individuals, corporations, or unions.
The way the Rove and Coleman organizations have operated, using their 501(c)4s for election-driven activities clearly designed as their fundamental and overwhelming purpose, is a direct distortion of the intent of the law and the IRS regulations. It is possible to file an application with the IRS to create a 501(c)4 and operate as one for a year before the IRS rules on the application. In the meantime, the organization can raise and spend millions of undisclosed and unlimited contributions and flood them into ads to affect elections, and not have to file a tax return until long after.
To stop this behavior, the IRS would have to enforce its own regulations, not because one party or the president demands it, but because it is the agency’s duty to see that its regulations apply as intended. The IRS started in 2011 with a tentative plan to require the donors to the faux-501(c)4s to pay a gift tax on their donations, but it drew back after criticism from conservatives, both political operatives like Karl Rove and media figures like Rush Limbaugh, who like the lack of disclosure. The IRS should go further and entirely deny the designation to organizations misusing the 501(c)4 status and fine those who do so.
Another avenue of reform is through the Federal Communications Commission. As former FCC Chairman Newton Minow and former FCC General Counsel Henry Geller have pointed out, “Section 317 of the 1934 Communications Act provides that viewers and listeners are entitled to know who is paying for commercials. This is true of advertising not only for commercial products, but especially in the case of elections or controversial issues.”26
To implement the law, the FCC has long stipulated that television and radio stations disclose the identities of those who pay for the ads. Minow and Geller continue, “The longstanding FCC regulation requires an announcement to ‘fully and fairly disclose the true identity of the person or persons . . . or other entity by whom or on whose behalf such payment is made.’ It provides that when a person or entity acts on behalf of another, and this fact is known or could be known by the station exercising reasonable diligence, the name of the real sponsor must be announced.”27
The FCC has begun regulatory action to require stations to electronically compile information on their public interest obligations and to put it online for viewers or others to examine. Going the next step—requiring the stations to disclose in real time the identities of all significant donors who paid for political ads and to acquire the information from the ad buyers—is clearly within the agency’s purview and would create the appropriate disclosure that the Court has applauded and the FEC has blocked.
The Securities and Exchange Commission could require all public corporations to disclose in their annual or quarterly reports the monies they have spent for political contributions or issue advertising, including monies paid to third parties, like the Chamber of Commerce, that now are hidden from public view. Of course, this step would not affect private corporations, but would be a giant move forward from the current situation.
The executive branch could also have some effect here. In 2011, the White House drafted an executive order to require all private contractors who do business with the federal government to disclose their spending on political activities. These contractors already have to disclose their direct contributions to candidates and parties; this order would only extend current regulations to the new forms of political activity via so-called independent groups that are clearly designed to influence the outcome of elections. Implementing the executive order would be an appropriate way to extend disclosure. All it needs is presidential approval.
Finally, corporate and investor rights groups could target corporations’ political spending practices to establish accountability for their decisions to allocate resources for political campaigns and to require full disclosure of all such spending to the board of directors, shareholders, and the general public. The Center for Political Accountability has begun that effort, with some initial success.28
Disclosure and tightened rules governing coordination are not the only ways to ameliorate the broken campaign finance system. One area in serious need of reform is so-called leadership PACs, created and run by individual lawmakers using the same rules as other regular PACs, which have been growing in number and reach since the mid-1990s. In FEC parlance, these are called “unconnected” PACs. Opensecrets.org describes them this way:
Politicians collect money for their own campaigns—we all know that. But many of them also raise a separate pot of money, commonly called a leadership political action committee, to help other politicians. By making donations to members of their party, ambitious lawmakers can use their leadership PACs to gain clout among their colleagues and boost their bids for leadership posts or committee chairmanships. Politicians also use leadership PACs to lay the groundwork for their own campaigns for higher office. And some use their PACs to hire additional staff—sometimes even their family members—and to travel around the country or eat in some of Washington’s finest restaurants. The limits on how a politician can spend leadership PAC money are not especially strict. Also, lacking a requirement that lawmakers disclose their affiliations with leadership PACs, these committees have been able to slip under the radar for years.29
Opensecrets.org tallied 265 such PACs, with well over $9 million in contributions for the 2012 election cycle before the end of calendar year 2011. The development and expansion of leadership PACs, in which congressional figures, including all the top party and committee leaders, use their clout with donors to raise money and then distribute it to their colleagues or candidates, all to advance their own political careers, add to the corrupting influence of money inside Washington. Lawmakers rise to positions of committee and party leadership not based on their talents or expertise but on their prowess at shaking down big money donors. The more active role of party leaders in raising money for their “teams” adds to the sharp divisions of the permanent campaign. Leadership PACs should be eliminated.
Odd as it may seem to cite Jack Abramoff as a character witness about the evils of political money—a bit like citing the Marquis de Sade on the evils of torture—he may be the best eyewitness to the deeply corrosive and corrupting effect of the money culture. Abramoff believes that anyone who has or seeks a contract with the federal government or is trying directly to influence governmental decisions should be prohibited from making campaign contributions. In his book, Capitol Punishment: The Hard Truth About Washington Corruption From America’s Most Notorious Lobbyist, Abramoff suggests reforms include banning donations from lobbyists and those who receive public funds:
Instead of limiting the size of every American’s political contribution, we need to entirely eliminate any contribution by those lobbying the government, participating in a federal contract, or otherwise financially benefiting from public funds. If you get money or perks from elected officials—be “you” a company, a union, an association, a law firm, or an individual—you shouldn’t be permitted to give them so much as one dollar. It does no good to ban Jack Abramoff from giving $2,000 to Congressman Badenov, but allow the members of his law firm to pick up the slack. If you choose to lobby, if you choose to take money from our nation, if you choose to perform federal contracts, or if you draw your compensation from any entity which does, you need to abstain from giving campaign contributions. It’s your choice either way. But you have to choose one, not both.30
A law banning certain American citizens from contributing to campaigns will quickly run afoul of the First Amendment. But a congressional rule that says lawmakers may not accept a contribution for themselves or for their parties from anyone lobbying Congress or participating in a federal contract is another matter. Admittedly, this is unlikely to happen. But it is a goal for lawmakers.
Discussing next-generation campaign finance reform when Citizens United and its progeny remain as the driving forces behind political campaigns may seem fruitless at best. Once unlimited money becomes the rule and the wall between independent efforts and candidates breaks down, any serious efforts to alter the fundamentals of the system, short of a constitutional amendment, are like erecting a thin line of sandbags to alter the course of a tsunami.
But pursuing a new framework for campaign finance remains a key component for reducing dysfunction in the American polity. One reason is history: for ideas in this realm to reach fruition or be enacted takes years or decades. A second reason is that even a thin line of sandbags is better than none. A third is that a new framework—one based more on incentives than restrictions—has the potential to take the issue of reform out of the courts, where it is ill suited for balanced and reasonable resolution, and into the political sphere.
In 2010, we joined with Michael Malbin of the Campaign Finance Institute and Anthony Corrado of Colby College to create a new working group on campaign finance reform. The four of us had worked together more than a decade earlier coming up with a set of ideas that helped shape what ultimately became the Bipartisan Campaign Reform Act. This time, we wanted a model that took into account not just the Supreme Court decisions and the regulatory environment but the vast technological changes that had altered communications, including social networking, and also the nature of political fund-raising because of the ubiquity of the web and web purchases.
The 2008 Obama campaign demonstrated that it is both possible and cost-effective in the Internet age to raise a lot of money from many small donors. Just a few years earlier, the only effective way to have a massive number of small donors was through the use of direct mail, an extraordinarily costly tool; some 95 cents of every dollar raised had to be poured back into the costs of creating and maintaining mailing lists and sending out letters to solicit donors. Using the Internet cut those costs to a handful of pennies on the dollar. And raising the money also enabled Obama to engage and involve a wide range of donors throughout the campaign and created a robust and ongoing social network of supporters.
Our working group recognized that taking full advantage of the communications revolution required universal access to affordable high-speed broadband and full access by all carriers for political speech. We strongly supported the creation of a one-stop portal for a citizen to access all election-related public information.
But the core of our report, called “Reform in an Age of Networked Campaigns,” was a strong endorsement to redefine public funding of campaigns through a multiple matching fund for small donors in primary and general election campaigns for candidates who receive more than a reasonable threshold of such contributions; to abolish spending limits as a condition for public funding; to require candidates who accept the matching funds of public dollars to abide not by any spending limit but by lower but reasonable contribution limits; to provide “seed money” by offering early money sooner to newly emerging candidates; and to encourage small donors by offering tax credits or rebates for their contributions.31
A system built around a four-to-one or five-to-one match for small donors would give candidates a powerful incentive to spend more time finding a large number of small donors and less time trolling for the larger ones. Expanding the number of people giving even small amounts to a campaign would mean more engaged citizens. And a system that also would enable parties to have unlimited coordinated spending for their candidates if the money were all raised from small donors creates a more realistic and better campaign dynamic.
This kind of reform is no panacea for the oceans of unlimited money now flooding the system, but it is the best way to provide at least some countervailing force.
Many of the reforms we discuss in this chapter would require a long time and a lot of discussion to enact; others have only a tiny chance of implementation. But as voter disgust with dysfunctional politics grows in intensity, the market for ideas like public financing or even mandatory attendance at the polls will also grow.