As we slog through another negative, money-saturated presidential campaign, Americans are doing everything they can to let their leaders know they are fed up. As if the votes for anti-establishment candidates weren’t enough to send the message, thousands of activists spent the last week in Washington and more than 1,200 were arrested in sit-ins at the Capitol.
The current state of American elections is deeply troubling, and it’s the result of many failures in our government. The US Supreme Court’s gutting of essential voting rights and campaign finance laws, combined with congressional inaction and regulatory gridlock, have eroded the integrity of our democratic process and the public’s confidence in it.
A cynical person could assume from all this that democracy reform is impossible – and that no matter what we do, special interests will always find a way to control our political system at the expense of the average voter.
It doesn’t have to be that way. Even without changing a single mind on the Federal Election Commission, in the US Congress or on the US Supreme Court, there are steps that can and are being taken to ensure that democracy survives.
The Campaign Legal Center, a nonpartisan democracy reform organization, develops and implements solutions to enhance our democracy within the current legal landscape, while laying the groundwork for a long-term strategy that will eventually put our nation’s democracy back on track. Some of these common sense solutions are detailed in Blueprints for Democracy: Actionable Reforms to Solve Our Governing Crisis, a 2015 report by the Campaign Legal Center and Issue One.
Here are four ways we’re fighting for our democracy:
1. Coping with Shelby County v. Holder
In this 2013 case, the Court struck down a key part of the civil rights era Voting Rights Act. The section had enabled the Department of Justice or a DC court to block discriminatory policies before they were enacted if the state or locality couldn’t prove the law was non-discriminatory. Now, states with a history of discrimination, like Texas or North Carolina, can pass laws without that preclearance, and the private citizens who are victims of discrimination have to find attorneys willing to file a lawsuit on their behalf against a state or locality while the discriminatory law remains in effect. These cases can take years to litigate, and often hundreds of thousands of dollars are needed to get a big voting rights case to trial.
Still, litigation offers some protection and we are trying to make it easier for people to utilize it. Recognizing litigation as the key tactic remaining to protect the right to vote, the Campaign Legal Center, along with the American Constitution Society and Georgetown University Law Center, launched the Voting Rights Institute in 2014 to prepare the next generation of attorneys, experts and activists to preserve our democracy and protect all Americans’ right to vote. The Institute provides resources, litigates, educates, trains, conducts original research and seeks to increase the pool of voting rights attorneys and experts who can respond when the right to vote is abridged or denied.
In December 2015, for example, the Waller County Commissioners Court in Texas voted to reduce the number of early voting locations from eight to two before the March presidential primary. The new plan eliminated both early polling locations in the only precinct in the county that was majority people of color – one in the African-American city of Prairie View, and another on the campus of Prairie View A&M University, a historically black university.
Waller County voters contacted the Voting Rights Institute for help. The VRI wrote a letter to the county judge, the elections administrator and the county commissioners, urging them to reverse course and protect the early voting locations in Prairie View. After learning about the impact of the change, and recognizing the possible threat of litigation, the Commissioners Court voted to increase the number of early voting locations to six, including one location in the city of Prairie View within walking distance of the university campus. Later, the County re-established the second polling place on the campus of Prairie View A&M as well.
2. Going local
In its now infamous 2010 Citizens United decision, the Supreme Court reiterated the importance of disclosing the sources of campaign funding, as well as the importance of candidates remaining independent of super PACs and other outside spenders. This has not worked out as the justices envisioned. Reports filed so far at the FEC have made evident that nearly every presidential candidate in the 2016 election is supported by at least one so-called ‘independent group’, or super PAC, which can accept unlimited donations from individuals, corporations and unions. Of the $317 million donated so far to support Democratic candidates, 15 percent has been raised by super PACs and other independent groups. Of the $599.4 million donated so far to support Republican candidates, 52 percent has been raised by super PACs and other independent groups. Some of that money, because it is given by political nonprofits or, as the Washington Post has reported, LLCs, remains impossible to trace to its source.
Despite the obvious flouting of the Supreme Court’s expressed desire for disclosure and distance between the candidates and super PACs, Congress has failed to strengthen disclosure and anti-coordination laws, and the Federal Election Commission has failed to enforce the laws on the books at the federal level.
Happily, more is happening outside the Beltway: States and localities are passing strong laws so voters know who is funding their elections, making “independent” expenditures truly independent of candidates’ campaigns. And the Campaign Legal Center has been successfully helping to defend these laws in court.
California is leading the way in both these areas. In 2015, the California Fair Political Practices Commission – an agency that consistently has been a model of effective campaign finance enforcement and regulation – updated its coordination regulation to more effectively capture activity that was flying below the radar of the legal definition of coordination, but was coordination in any common-sense understanding of the word.
Rather than solely focusing on the hard-to-prove question of whether specific expenditures were prearranged between candidates and super PACS – as many coordination laws have traditionally done – the California regulations also focus on the relationship between the candidate and the outside spender and the back-and-forth communications inherent in such relationships. This is precisely the type of “wink and nod” coordination that has gone unregulated by most coordination laws. Similarly, California dramatically strengthened its disclosure law in 2014 – shining light on previously “dark money” – through regulation of “multipurpose organizations” active in California elections.
Another West Coast example: Under a groundbreaking new public financing ballot measure approved in Seattle last November, voters there receive $100 in vouchers that they can contribute to candidates who agree to additional campaign finance restrictions. This new program will enable all voters to play a part in financing the city’s elections, and will enable candidates to raise the funds they need without having to spend all of their time courting wealthy donors.
3. Taking Aim at the Gerrymander
Every 10 years, following the US Census, lawmakers at the state and local level gerrymander their districts, choosing their voters rather than allowing voters to choose them. Legislators, aiming to reduce the political influence of a particular political, racial or socio-economic group, redraw district lines so that that group is packed in one district, or fractured among multiple districts.
This blatant effort to diminish the power of certain groups simply because elected officials don’t like the way they vote is illegal. But the Supreme Court has yet to embrace a legal standard voters can use to challenge such political gerrymandering, leaving the gerrymanderers free to target voters in ways that seek to disfavor them in the political process.
The Campaign Legal Center is trying to fix that. We are co-counsel in a Wisconsin case, Whitford v. Nichol, in which 12 voters are challenging the state’s 2012 partisan gerrymander, which unconstitutionally drew district lines in a way that treats voters unequally, diluting their voting power based on their political beliefs.
We argue that the gerrymander violates the 14th Amendment’s guarantee of equal protection, and unreasonably burdens voters’ First Amendment rights of association and free speech. The case puts forward a workable and constitutionally defensible legal standard that courts can use to distinguish between permissible political line-drawing and unconstitutional partisan gerrymandering.
4. The Long Game
Besides immediate reforms to strengthen our democracy today, the Campaign Legal Center is also working on a long-term strategy to change the campaign finance legal landscape as we know it. The goal is to change how the Supreme Court thinks about and analyzes the constitutionality of campaign finance laws. We hope to lead a majority of the Court to recognize that campaign finance laws protect and advance critically important First Amendment interests — and to abandon the Court’s view that campaign finance restrictions burden First Amendment rights and can only be justified by a narrow “anti-corruption” interest.
Such a shift in how the Court analyzes campaign finance laws could result in future Court decisions overturning not only Citizens United, but also other Court decisions limiting campaign finance laws. This new campaign finance “jurisprudence” would give reformers the breathing room needed to experiment with campaign finance laws that make sense and work in their own communities, the laboratories of democracy.
And the “long-term” may now be a lot shorter. The current vacancy on the Supreme Court might be filled by a justice who recognizes the importance and constitutionality of campaign finance laws. Justice Breyer’s 2014 dissenting opinion in McCutcheon v. FEC, signed by three of his fellow justices, sketches what a pro-reform jurisprudence might look like. Half of the Court’s members are seemingly ready for a new and supportive approach to analyzing campaign finance laws. We’re working on a strategy now to engage a new pro-reform majority in the near future.
Despite the many challenges ahead, it truly is an exciting time. The arc of our nation’s history over the centuries has been one of increasing democracy and we have an obligation to continue this fight. As President Harry Truman once said: “We know the way; we need only the will.”