NEW REPORT: Hope Remains for Reining in Big Money in California Politics Post-Citizens United
State-level reform can help manage big money’s influence in California elections
Sacramento — California Common Cause has released a new report that shows how states can regulate independent expenditures at the state level even in the wake of Citizens United. The report details the existing pockets of campaign finance law that are ripe for reform and can make a measurable difference on the impact big money has on state and local elections.
Unlike campaign contributions, independent expenditures cannot be capped by state or federal regulation, creating an avenue for unlimited spending in our politics. This allows wealthy individuals, corporate interests, and unions to buy access to, and curry favor with, politicians to see their policy preferences enacted.
Today’s report, authored by UC Berkeley graduate student fellow Andrew Albright for California Common Cause, illustrates that the best ways California can fight back against the damaging effects of Citizens United within the constraints placed on states by the Supreme Court, including tightening coordination laws to ensure that independent expenditures truly are independent.
Coordination laws govern the relationships between candidates and third-party committees that make independent expenditures in support of those candidates. This report examines the legal doctrine and public policy around coordination laws, in California, other states, and federally. It identifies the best-in-field practices, where California falls short, and proposes how California can improve.
“Citizens United irreparably changed how elections operate, but that doesn’t mean reform is impossible. Our work demonstrates the contrary,” said Sean McMorris, California Common Cause’s transparency, ethics, and accountability program manager. “We’re dedicated to pushing the ball forward on campaign finance reform research in California because we know a better future is possible. This report offers a glimpse into what those solutions could look like.”
To withstand constitutional scrutiny, campaign finance regulations must protect against quid pro quo corruption, the trading of dollars for votes. Citizens United states that independent expenditures cannot be a source of quid pro quo corruption as long as the persons or entities spend their dollars independent of, or absent coordination with, the candidates those dollars support. Thus, the only form of regulation likely to withstand scrutiny under Citizens United are laws that ensure the independence of outside spenders and eliminate wink-and-nod coordination that has become common. Reformers are therefore best positioned to turn their attention to strengthening coordination laws.
The report found that the most effective coordination laws adhere to the following four principles: (1) they cover all relevant spending, including both “express advocacy” and “issue advocacy,” (2) they define coordination broadly, (3) they are free of loopholes, and (4) they are highly enforceable.
In light of these principles, the report recommends that California can take several steps to tighten its laws, including:
- Extend California coordination laws to cover issue advocacy, a major gap currently left by existing legislation.
- Broaden the definition of “coordination” and afford those accused of coordination fewer opportunities to make bad-faith but ultimately successful rebuttals of clear evidence of coordination.
- Consider barring “general purpose” and “primarily formed” committees from making independent expenditures. California can instead create an “independent expenditure only” committee that can make independent expenditures but cannot make direct contributions to candidates.
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