- - Monday, February 8, 2016

ANALYSIS/OPINION:

America’s campaign finance laws are often a convenient scapegoat for all of our country’s ills. Witness Democratic socialist Sen. Bernie Sanders invoking campaign spending in response to seemingly every other debate question.

Now comes Republican Rep. David Jolly of Florida, who has proposed the Stop Act to ban members of Congress from personally soliciting campaign contributions, which he says diverts members’ time and attention away from the legislative work they are elected and paid to do. Mr. Jolly’s concern about fundraising by members deserves to be taken seriously, but his legislation is likely unconstitutional and is not the best solution.

Anecdotes abound about the apparently inordinate amount of time that members spend on fundraising. Several years ago, a leaked Democratic Congressional Campaign Committee (DCCC) presentation to freshmen members recommended spending four hours a day on telephone solicitations, with another hour reserved for miscellaneous “strategic outreach,” including in-person solicitations.

Recently, in a New York Times op-ed, retiring Democratic Rep. Steve Israel of New York estimated that he has spent 4,200 hours during his career on fundraising calls. Of course, the DCCC, which Rep. Israel headed, has a vested interest in inflating the amount of time it expects members to fundraise; it relies heavily on members paying committee “dues” from their campaign coffers and raising additional money for the committee. Still, it is difficult to dispute Mr. Jolly’s preference for legislating instead of fundraising.

Mr. Jolly’s proposed Stop Act, however, is likely unconstitutional. He cites the Supreme Court’s recent Williams-Yulee decision upholding Florida’s ban against state judicial candidates making personal solicitations, and which his bill is apparently modeled on. However, the court’s tough stance on campaign finance in judicial races does not translate to legislative and executive branch elections.

As the Supreme Court made clear in Williams-Yulee, “States may regulate judicial elections differently than they regulate political elections, because the role of judges differs from the role of politicians.” Note that the court does not even regard judicial elections as being within the same realm of “political elections” for other offices. The court also found significant the fact that 30 of the 39 states that elect judges have similar solicitation bans. By contrast, not a single state categorically prohibits candidates for other offices from making personal solicitations.

Also of significance: In 2009, the Supreme Court ruled that a West Virginia state judge was required to recuse from a matter involving the A.T. Massey Coal Co., whose CEO had independently spent large amounts to support the judge’s election. Less than a year later, the high court issued the Citizens United decision, permitting unlimited independent expenditures in a case primarily involving those other so-called “political elections.”

The Supreme Court also reaffirmed in the Williams-Yulee case the long-standing principle that “exacting scrutiny” applies to restrictions on campaign solicitations, meaning that they must be “narrowly tailored to serve a compelling interest.” Mr. Jolly’s proposal fails this test, since the bill would still permit members to attend fundraisers. Thus, it is not at clear that they will actually spend less time on fundraising, which supposedly is the whole point of the bill.

If Mr. Jolly is correct that members spend too much time fundraising because of the campaign finance laws, it is not for the reason he thinks. When the federal contribution limits were originally enacted in 1974, an individual could give $1,000 per election to a candidate, and a PAC could give $5,000 per election to a candidate and $15,000 per year to a party committee. Had those limits been properly adjusted for inflation, those limits today would be $4,814, $24,070 and $72,211, respectively. But under current law, those limits are just $2,700, $5,000 and $15,000, respectively. Under these effectively lower per-donor limits, candidates spend more time chasing after a greater number of contributors for their own campaigns and their party committees.

The most logical and least constitutionally questionable measure to ease members’ fundraising burden would be to substantially raise the limits on campaign contributions. While worrywarts will hyperventilate that this will exacerbate corruption, there is no empirical evidence of this. In fact, comparing states’ contribution limits with the Pew Center on the States rankings, the Center for Competitive Politics found that of the 17 states with high or no limits on contributions, seven scored “above average” for quality of governance. By contrast, of the 16 states with low contribution limits, only three scored “above average.”

Short of amending the First Amendment, members of Congress may not constitutionally be prohibited from asking for campaign contributions, especially when a less drastic solution exists for alleviating the time they spend on this task. The first and most important step for members to free up more time for legislating is to pass legislation to lift the limits on contributions to candidates and party committees.

Eric Wang is a political law attorney and senior fellow with the Center for Competitive Politics.

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