We Must Draft Reforms That Can Survive Constitutional Review (The New York Times)


The Federal Election Campaign Act is far from a perfect system. But the reason for its deficiencies lies not in its drafting, but rather in its repeated dismemberment by the Supreme Court. The court has been as much a player in the field of campaign finance as Congress. Any solution must take its active — and increasingly activist — role into account.

Enacted in response to the Watergate scandal, FECA and its amendments were a sweeping reform to our system of financing elections. FECA established limits on contributions to candidates and parties, as well as limits on their expenditures and the independent expenditures of individuals. It recodified the ban on corporate and union contributions and expenditures. It also expanded the disclosure requirements and established the Federal Election Commission to enforce the law.

Scarcely had the ink dried on the 1974 amendments to FECA, however, before the Supreme Court took a whack at the law. In Buckley v. Valeo, it held that limits on expenditures violated the First Amendment, while simultaneously finding that limits on contributions to candidates and parties were permissible because they combated political corruption and its appearance. This holding created the problematic “hydraulic” nature of today’s campaign finance regime: contributions are limited but expenditures are limitless, creating constant pressure to circumvent the limits.

In 2010, after decades of relative quiet, a newly constituted Supreme Court under Chief Justice Roberts again took a more activist tack, shocking not only election lawyers, but also the American public, and struck down the 60-year-old restriction on corporate spending in federal elections. Its theory: If a campaign expenditure is “independent” of a candidate — whether made by corporation, union or Super PAC — it by definition cannot “corrupt.”

If Buckley narrowed the playing lines on the field of campaign finance, Citizens United was akin to fashioning them into a maze few lawmakers can navigate. Today, we need to preserve the parts of FECA the Supreme Court has approved — comprehensive contribution limits and full disclosure of campaign activity — while taking great care in drafting new reforms to ensure they can survive the labyrinth of constitutional review. And at least as important is developing a new jurisprudence that gives greater authority to Congress — and the voters it represents — to protect the political system from the undue influence of unlimited money and that adopts a real-world view of the effects of unchecked spending. Reform can start in the legislature but must end in the courts.

Tara Malloy is senior counsel at the Campaign Legal Center in Washington. This opinion piece was originally published in The New York Times Opinion pages on October 13, 2014. To read it and related pieces marking the 4th Anniversary of FECA, click here.