Experts Discuss Money in Politics
Diverse views on the effects of campaign finance,
the current state of regulation, and action needed
by Ken Martin
© The Austin Bulldog 2015
Posted Tuesday, November 17, 2015 10:04am
“The League of Women Voters of the United States believes that the methods of financing political campaigns should ensure the public's right to know, combat corruption and undue influence, enable candidates to compete more equitably for public office and allow maximum citizen participation in the political process....”
—League of Women Voters National Board
Panelists Kurt Hildebrand, Michael Schneider, Craig McDonald, Sara Smith, and Roger BorgeltThe League of Women Voters Austin Area brought the League’s national study on Money in Politics into local focus with a Sunday afternoon panel discussion. A more politically diverse panel of five speakers would be difficult to imagine. The audience of nearly 50 people paid close attention and posed a number of questions for the panelists.
Kurt Hildebrand, chair of the Libertarian Party of Texas, said his party has taken no position on campaign finance or on money in politics, as the views of Libertarians encompass a broad range. Some believe there should be tight regulations and some believe there should be no regulation at all, he said.
“We want people to be as free as they possibly can be with equality, justice, and equal protection under the law.”
Michael Schneider is vice president for legislative and regulatory affairs with the Texas Association of Broadcasters, which represents more than 1200 free, over-the-air radio and television stations. All must comply with rules of the Federal Communications Commission concerning political advertising.
“Federal candidates have absolute right of access to advertise,” he said. “State and local candidates do not.” So stations can choose which political contests that will be allowed to advertise but once chosen must allow all competing candidates to do so.
Broadcasters have to keep records related to the sale of political advertising, whether from candidates or third parties. Television stations have to upload those records to the Federal Communications Commission website, which maintains TV Broadcast Public Inspection Files that contain detailed invoices used to bill candidates, including the rate charged, when it ran, and who paid for it. Radio stations are not yet required to follow this rule, Schneider said.
Craig McDonald is the director of Texans for Public Justice, a campaign finance watchdog organization that not only tracks spending but has filed criminal complaints that resulted in indictments and prosecution of Governor Rick Perry, Attorney General Ken Paxton, and U.S. Representative Tom DeLay. Perry and Paxton’s cases are in progress. DeLay was initially convicted but that was overturned on appeal.
McDonald noted that courts have ruled that campaign finance can be regulated only when there is the appearance of or actual corruption, involving a quid pro quo, or a contribution in exchange for something.
The public’s right to know is under attack, McDonald said, because people want to take away that right. The right of 501(c)(4) organizations to operate political action committees (PACs) that collect and spend money from undisclosed sources has created a huge loophole. “Citizens United v. Federal Elections Commission erased the wall between corporations and people.”
He said spending by so-called Super PACs is on track to balloon to billions in the 2016 elections and these expenditures should be subject to disclosure. Those against such regulation contend that requiring disclosure is a limitation on free speech, McDonald said, which is “contrary to years of jurisprudence.”
He noted that Texas banned corporate contributions to political campaigns in 1903 and every federal court has upheld disclosure.
Sara Smith is a staff attorney with Environment Texas and the former director of the Texas Public Interest Research Group (TexPIRG). She spent three years with the latter group working on campaign finance reform.
Every corporate dollar spent on political campaigns returns $59 in benefits, she said, but campaign spending “should not be able to destroy our environment.” Public Enemy No. 1 is corporate spending to undo the good done by the Clean Air Act and Clean Water Act.
Environment Texas recently launched a campaign critical of the University of Texas for allowing fracking on UT land that is polluting the air and water, she said.
Smith said the names of donors who support this kind of work should be kept confidential. She said she met face-to-face with donors who were highly concerned that if they supported her organization's work they might lose their jobs if their names were listed in its IRS reports. “We support disclosure to the extent that it does not chill donors, and elevates the voice or ordinary citizens.”
“We engage in the same activity as corporations,” Smith said. “We spend money to support or oppose candidates.”
“It’s important to overturn Citizens United,” she said, but first comes incremental steps.
Roger Borgelt is a former vice chairman of the Travis County Republican Party. His law practice, Borgelt Law, includes campaign finance. Drawing laughter, he said, “There is not a cohesive Republican Party position.”
As to the Citizens United decision that others criticized, Borgelt said, “I look at this as First Amendment free speech issue, not campaign finance.” He said the decision “held there should be no government restrictions on free association of individuals to spend money in support of political candidates or parties. I think it was a good decision, a right result.” It also upheld the ban on direct contributions to candidates by corporations or unions.
But as for striking down disclosure requirements, he pointed to an older court decision in National Association for the Advancement of Colored People v. State of Alabama, which involved the state trying to get the names of NAACP members for the purposes of retribution. That case went before the U.S. Supreme Court four times for different reasons before the court in 1958 finally ruled the group’s membership lists were immune from state scrutiny.
Borgelt said he believed Citizens United would prevail for some time and in the meantime there might be avenues for improvement, such as to require disclosure of donors but allow a “safe harbor” to donors who can show cause to a court for a legitimate fear of retribution.
He said that tighter restrictions should be placed on 501(c)(4) organizations, who are not supposed to spend the majority of the funds they raise on political activity.
The Supreme Court said that contributions are a form of speech, he said. “We have got to figure out a way to get contribution disclosure, and we need to come to an agreement on how.”
Questions were written and presented to the panel by two moderators.
Noting that opponents of the non-discrimination Houston Equal Rights Ordinance raised and spent millions of dollars, the first question was where to draw the line? Is this free speech?
Borgelt answered by noting that advocates of building a new courthouse in Travis County “spent about a hundred times more than opponents” but the proposition failed anyway. “It’s not just about the amount of money being spent. You have to get out there and use your resources for or against what you like or don’t like.”
The topic of voter apathy was raised, noting that people may think their vote doesn’t count against the power of moneyed interests. But Borgelt countered by saying there are many ways to communicate a political message, through e-mails, websites, and social media. “You can get opinions out there,” he said, to countervail large amounts being spent.
He said groups can be formed to push through an agenda, as did the grass-roots coalition formed by Austinites for Geographic Representation that petitioned for and gained voter approval of the 10-1 plan for geographic representation on the Austin City Council.
Libertarian Hildebrand noted that good efforts are made for voter registration but we still get “horrible turnout.” “If you want to see change you have to take personal responsibility. That’s how it will change.”
Smith, who said she “is an activist for a living and lives and breathes politics,” agreed that personal responsibility needs to be taken but noted there is “systematic oppression” in the form of Voter ID laws.
When the possibility of using public money to finance campaigns was raised, Smith said the success of Public Interest Research Group efforts in other states that encouraged small donors resulted in increased voter turnout. “People who have skin in the game show up at the polls.”
Schneider talked about how tightly political districts are drawn, to the extent that “only one congressional district is truly competitive.” Most seats are pretty safe. In the Texas Legislature, “only a handful of House seats could go either way.”
Borgelt mentioned the widely recognized success of the City of Austin’s Independent Citizens Redistricting Commission that resulted from the City Charter amendment for the 10-1 plan. It was nonpartisan and the council districts were drawn without consideration of incumbency. Schneider recalled the decade of effort that former State Senator Jeff Wentworth spent trying to establish a similar body to draw districts for the State of Texas. “Others have picked up the flag but couldn't get enough support,” he said. “The party in power doesn't want to give up the opportunity.”
Hildebrand said the problem in politics is not money—it's secrecy—the way that money is spent can be kept secret. It is fundamental that if you stand for public office, privacy is not a right. In politics you are subject to inspection.
Borgelt said that we live in a Citizens United world and it’s not practical to think that will change anytime soon. He quoted from a November 6, 2015, article in the National Review, titled “Why the Media Hate Super PACs” written by Bradley A. Smith, former chair of the Federal Elections Commission:
“Despite Citizens United and SpeechNow, campaign finance remains more heavily regulated than at any time before the 1970s. These 40 years of regulation have taught us that when regulators and the media push to ‘clean up’ the campaign process or to make it fairer, the inevitable result is the restriction of speech and the thickening complexity of laws that should be simple enough for everyone to follow. Court decisions that strike down unnecessary restrictions on political speech should be celebrated, not vilified. If super PACs are not always pretty, they are a lot prettier than a federal government that dictates who can speak, and when, and how, about politics.”
Smith said, “Money in politics is the biggest issue we face as a nation” and she was not as skeptical about overturning Citizens United. She urges people to get engaged in elections, contribute, and be involved with candidates at city, state and federal levels. “We absolutely have to do this.”
Hildebrand closed saying he did not support limits on campaign spending but he did support “full transparency.” He agreed with Smith that Citizens United decision should be rolled back. “We support voluntary free association and we can’t support public funding of campaigns.”
McDonald agreed with Borgelt that the Citizens United decision will last for some time and agreed with Hildebrand that transparency in campaign finance is one of the highest values. Not to be outdone by Borgelt’s closing quote, McDonald closed with one from Supreme Court Associate Justice Antonin Scalia, in the Doe v. Reed opinion, in which the court found the state had a compelling interest in the disclosure of names of people who signed a petition to preserve the integrity of the electoral process:
“Requiring people to stand up in public for their political acts fosters civic courage, without which democracy is doomed," Scalia wrote, adding that "I do not look forward to a society which, thanks to the Supreme Court, campaigns anonymously ... hidden from public scrutiny and protected from the accountability of criticism. This does not resemble the Home of the Brave.”
Austin event part of nationwide action
Joanne RichardsOrganizer Joanne Richardson complimented the day’s speakers, saying, “This is the best panel I’ve ever heard. They come from different perspectives but I hear common ground.
She said that League chapters all over the country were holding similar meetings and all are working to build a national consensus about what changes in campaign finance the organization will lobby to achieve.
To further explore the influence of money in politics, the local group will meet again 1-3pm Wednesday November 18 at the Old Quarry Branch Library, 7051 Village Center Drive. Two consensus meetings will be held in December to arrive at the basis for a report to the national organization.
Once the consensus position is achieved, she said, “The League of Women Voters will lobby for change.”
This report was made possible by contributions to The Austin Bulldog, which operates as a 501(c)(3) nonprofit to publish investigative reporting in the public interest. You can help sustain this work by making a tax-deductible contribution.
Related Bulldog coverage:
Locals United Against Citizens United: Pay 2 Play documentary, panel discussion focus on reducing influence of big money in politics, January 23, 2015
Money in Politics: Introduction and Overview, a League of Women Voters update on its campaign finance position
Money in Politics Consensus Questions
Study Guide for the Money in Politics Consensus