WHOSE VOTE MATTERS? WHY PRESIDENTIAL CAMPAIGNS SHOULD BE PUBLICLY FUNDED IN ORDER TO BALANCE THE VALUE OF VOTER SPEECH WITH CANDIDATE SPEECH

By Joshua Cottle, Volume 104 Staff Member

Over 1.3 billion dollars were spent by candidates in each of the last three presidential campaigns, while political action committees spent more than 4 billion dollars on political advertising.[1] Yet, only twelve percent of the population donated to political campaigns in the 2016 election.[2] As these donations quickly add up, presidential campaigns fail to reflect support and investment from a large section of the electorate. They may simply reflect candidates’ focus on donations to continue advertising throughout the country, especially with candidates spending as much as 248 million dollars on advertising.[3] At the same time, the average net worth of the past ten Presidents of the United States is 343 million dollars.[4] The last president with a net worth of less than a million dollars, adjusted to present day, was Harry Truman in 1953.[5] As money becomes more critical to a successful presidential campaign and presidents routinely have vast fortunes of their own, the role and dominance of money in political campaigns has overshadowed an emphasis on advocating for the support of all voters. Required public funding of presidential election campaigns is a necessary reform to ensure that voter speech is valued by the courts and the public in the same manner as candidate speech. Public funding of presidential campaigns serves to eliminate disparities in voting power based on wealth, remove barriers for candidates who may not have sufficient independent wealth to initiate or power their campaign, and substantially reduce the billions of dollars in money used on political campaigns.

Public funding of campaigns is considered a “substantial restraint”[6] on the quantity of political speech, subject to strict scrutiny analysis and requiring a compelling governmental interest.[7] Courts have largely determined that restrictions on the speech of candidates do not have a sufficient governmental interest.[8] Additionally, the Court has “repeatedly rejected the argument that the government has a compelling state interest in leveling the playing field” in the realm of political speech by limiting candidate dependence on large contributions and equalizing financial resources.[9] Courts premise their arguments in this area on the critical nature of speech of each candidate and all potential donors.[10] The Supreme Court has viewed challenges to campaign finance laws with the understanding that each voter has equal opportunity to make donations to their favorite campaigns and causes.[11] However, this fails to account for the residual effect of creating disparities in the value of the speech of each voter. In 2016 only twelve percent of individuals donated to political campaigns.[12] Of families with incomes above $150,000, more than thirty percent made a political donation, while just seven percent of families with incomes below $30,000 donated.[13] While individuals and families with higher income clearly have more disposable income to spend on political donations, the perspective that all political speech, whether it be donations or votes, is valued equally by campaigns and candidates is far from true. The political speech of each voter is exercised through their support of a candidate, a potential donation, and their vote. The reality of political donations is that they mainly come from large corporations or wealthy individuals. While the Court has expressly determined that actions to “level the playing field” do not constitute a sufficient interest to justify limitations on political speech, the focus of its analysis to exclusively protect the speech of presidential candidates without consideration of equivalent protection for voter speech fails to reckon with the realities of disparities within political speech.[14]

The Court has stated that “taking the right to speak from some and giving it to others . . . deprives the disadvantaged person or class of the right to use speech.”[15] However, the Court fails to recognize that its current jurisprudence on political campaign speech has the effect of heavily favoring wealthy donors and wealthy candidates, while limiting the value of contributions by millions of voters. Given the small proportion of the electorate that donates to political campaigns, presidential candidates must tailor their message or campaign strategy to this small and wealthy proportion of the electorate or be able to self-fund part of their campaign. Either of these options restrict the focus of a candidate towards money, as opposed to representation of the entire electorate.

Candidates who are able to fund campaigns and have more access to speech than other candidates who have funded their campaigns off the support of large coalitions do not serve the fundamental values of a democracy of the people. Voters’ speech should be reflected throughout the political process as a metric of support for each candidate, not simply the funds available to candidates. The Supreme Court has recognized the essential nature of speech as a “means to hold officials accountable to the people.”[16] Additionally, the Court has also stated that governments may engage in public financing of election campaigns, which may further significant government interests in preventing corruption, in a “manner consistent with the First Amendment.”[17] Public funding of presidential campaigns would shift attention from “elite and wealthy supporters to the everyday constituent” in order to “foster and redevelop voter engagement that has eroded over the years, at least in part because of the influence of money in elections.”[18] Protections of free speech should ensure that the speech of candidates is valued equally with the speech of voters. Additionally, as the Court stated in Citizens United, the “right of citizens to inquire, to hear, to speak, and to use information to reach consensus is a precondition to enlightened self-government and a necessary means to protect it.”[19] However, the current framework of election funding does not support this interest.

Public funding of presidential campaigns would shift the focus of presidential campaigns to a broader proportion of the electorate and advocate for the vote of each voter. Public funding will enable “politicians to focus more on the interests of a broader cross section of the population” in order to “foster and redevelop voter engagement.”[20] The proposed public funding option would initially capitalize on the $300 million currently sitting in the Presidential Election Campaign Fund (PECF).[21] Currently, a candidate must raise more than $5,000 in at least 20 states with a maximum donation of $250, requiring at least 400 different people, in order to receive funding from the PECF.[22] If public funding was required for presidential campaigns, this threshold should increase substantially to ensure that considerable support is displayed capable of indicating widespread voter support. Additionally, an additional limitation on private speech to continue to fund the PECF could be enacted. Political speech in the form of advertisements on mass media should be taxed when a single organization or corporation exceeds $1 million in spending and this tax would fund the PECF.

Public funding of presidential elections can serve to place power back into voters’ hands, as opposed to organizations or candidates willing to spend millions of dollars to place their own interests at the forefront. Voter speech should be valued in the same manner as candidate speech through campaign expenditures and courts should balance these interests in considering required public funding.

[1] Federal Election Commission, Statistical Summary of 24-Month Campaign Activity of the 2015-2016 Election Cycle (March 23, 2017) https://www.fec.gov/updates/statistical-summary-24-month-campaign-activity-2015-2016-election-cycle/.

[2] Adam Hughes, 5 Facts About U.S. Political Donations, Pew Research Center (May 17, 2017) https://www.pewresearch.org/fact-tank/2017/05/17/5-facts-about-u-s-political-donations/.

[3] Maya King, Bloomberg’s Massive Ad Campaign Hikes TV Prices for Other Candidates, Politico (Jan. 20, 2020), https://www.politico.com/news/2020/01/20/bloomberg-ad-campaign-hikes-tv-prices-100572.

[4] Grant Suneson, The Net Worth of Every US President from George Washington to Donald Trump, USA Today (Feb. 13, 2019) https://www.usatoday.com/story/money/2019/02/13/donald-trump-george-washington-net-worth-us-presidents/39011559/.

[5] Id.

[6] Buckley v. Valeo, 96 S. Ct. 612, 651 (1976).

[7] Citizens United v. Federal Election Com’n, 558 U.S. 310, 340 (2010) (“Laws that burden political speech are “subject to strict scrutiny,” which requires the Government to prove that the restriction “furthers a compelling interest and is narrowly tailored to achieve that interest.”).

[8] See Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett, 131 S. Ct. 2806, 2825–26 (“[C]ontribution limits meant to ‘level electoral opportunities for candidates of different personal wealth’ did not serve a ‘legitimate government objective,’ let alone a compelling one.”) (citing Davis v. Federal Election Commission, 554 U.S. 724, 741 (2011);Buckley, 96 S. Ct. at 649 (limiting campaign expenditures was not justified by a government “interest in equalizing the financial resources of candidates”).

[9] Arizona Free Enterprise, 131 S. Ct. at 2825–26 (2011) (noting that “equalizing campaign resources might serve not to equalize the opportunities of all candidates, but to handicap a candidate who lacked substantial name recognition or exposure of his views before the start of the campaign.”); Buckley, 96 S. Ct. at 651 (“The ancillary interest in equalizing the relative financial resources of candidates competing for elective office, therefore, provides the sole relevant rationale for s 608(a)‘s expenditure ceiling. That interest is clearly not sufficient to justify the provision’s infringement of fundamental First Amendment rights.”).

[10] Buckley, 96 S. Ct. at 631 (“In a republic where the people are sovereign, the ability of the citizenry to make informed choices among candidates for office is essential.”); Citizens United, 558 U.S. at 339 (“The right of citizens to inquire, to hear, to speak, and to use information to reach consensus is a precondition to enlightened self-government and a necessary means to protect it.”).

[11] Citizens United, 558 U.S. at 351 (“All speakers, including individuals and the media, use money amassed from the economic marketplace to fund their speech.”); Buckley, 96 S. Ct. at 652.

[12] Hughes, supra note 2.

[13] Id.

[14] Arizona Free Enterprise, 131 S. Ct. at 2825 (“We have repeatedly rejected the argument that the government has a compelling state interest in ‘leveling the playing field’ that can justify undue burdens on political speech.”); Davis v. Federal Election Commission, 554 U.S. 724, 741–42 (2011) (“[T]he interest in equalizing the relative ability of individuals and groups to influence the outcome of elections cannot support a cap on expenditures for express advocacy of the election or defeat of candidates, as the concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment.”).

[15] Citizens United, 558 U.S. at 340.

[16] Citizens United, 558 U.S. at 339.

[17] Id. at 2828.

[18] James Sample, The Last Rites of Public Campaign Financing?, 92 Neb. L. Rev. 349, 362 (2013).

[19] Citizens United, 558 U.S. at 339.

[20] Sample, supra note 18, at 362 (discussing that voter engagement has “eroded over the years, at least in part because of the influence of money in elections.”).

[21] Marilyn W. Thompson, The Price of Public Money, The Atlantic (May 27, 2016) https://www.theatlantic.com/politics/archive/2016/05/the-price-of-public-money/484223/ (explaining that, currently, this fund receives money annually from taxpayers in the form of an optional $3 authorization on 1040 forms).

[22] Federal Election Commission, Public Funding of Presidential Elections, https://www.fec.gov/introduction-campaign-finance/understanding-ways-support-federal-candidates/presidential-elections/public-funding-presidential-elections/.