It has been about forty-five years since the Federal Election Commission (FEC) was founded as the entity responsible for disclosing campaign funding information, restricting contributions and expenditures made to influence federal elections, and overseeing the public financing of presidential elections. The agency was made in the wake of Nixon and the Watergate scandal to try and shore up the lost trust in the presidency. The FEC was founded to administer and enforce the Federal Election Campaign Act (FECA) of 1974, a comprehensive system of federal campaign finance regulation. However, of this system’s regulations, only half survived the Supreme Court’s decision in Buckley v. Valeo (1976), which struck down restrictions on independent expenditures. From Buckley forward, Congress and the Court developed campaign finance law under the basic principles of contribution limits and mandated contribution disclosure. This framework was maintained until United v. FEC (2010), which largely nullified any effects of the remaining framework of campaign finance law altogether.
The statutory reform schemes of Congress have been the main vehicle of campaign finance reform, but the Supreme Court has shown its opposition to these written law regulation efforts by striking down the provisions of restrictions time and time again. However, there is still a way for Congress to take control of campaign finance regulations: by implementing a system of recusals. Legislative recusals identify conflicts of interest and prevent representatives from voting on issues when these conflicts exist.
In light of the hostility of the Court and the shortcomings of statutory reform, private ordering has been proposed as an alternative way to regulate campaign finance. Private ordering seeks to circumvent the challenges of passing regulatory law reforms by creating methods for private actors to mitigate problematic campaign spending practices themselves. While these solutions provide potentially potent ways of combating campaign spending, relying on them also represents a certain concession of agency on the part of democratic political institutions.
One of the most prominent recent examples of a successful private agreement was the self-enforcing contract, “The People’s Pledge,” that restricted third party spending from various media platforms in the 2012 Brown-Warren race in Massachusetts. This private ordering option required opposing campaigns to agree to a contract that enforces penalties against campaigns for any spending that outside groups use to support a candidate. For example, in the case of television advertisements, if an outside group spends money on negative advertisements against the candidate of the opposing campaign, the candidate who benefited from the advertisements must pay a penalty fee. The idea here is to deter third parties from spending on behalf of candidates they support because they would ultimately be draining their candidate of their own funds. This type of self-enforcing contract needs no congressional involvement and doesn’t need a public law to enforce it and restrict third parties. It also doesn’t come into contact with violations of the first amendment, the primary obstacle of statutory campaign finance reform efforts.
Another development in private ordering solutions espouses the idea of Super PAC insurance. Similar to the self-enforcing “People’s Pledge” model, Super PAC insurance seeks to avoid the barriers of congressional deliberation and infringement of the First Amendment. Its one central goal is to deter third party outside spending by levying costs upon spending decisions. Campaign organizers can contract Super PAC insurance companies to spend in response to spending that negatively affects their candidate. By creating contracted forms of deterrence, Super PAC insurance would make it more costly for Super PACs to operate, thus mitigating the ability of third-party expenditures to influence federal elections.
Statutory efforts have failed because judicial review has determined campaign finance restrictions to be at odds with free speech. While private ordering methods seem to provide means of successful degrees of reform, like the Super PACs and third parties they combat, they are subject to variable private interests and are not required to hold themselves accountable to the American public. As a result, externally functioning solutions such as these should not take priority over institutional changes that incorporate the input of citizens.
Legislative recusals are an institutional response to campaign financing and are able to circumvent the free speech obstacles legal provisions face. Recusals would also be easier to pass than statutes because they exist within the realm of internal procedural rules that each house has the prerogative to change. The precedent for legislative recusals within both houses of Congress exists at both the state level and within federal courts. Currently, most states have in place some type of legislative recusal provision that requires state legislators with any conflict of interest to abstain from voting. Federal judges must also disqualify themselves in proceedings where their impartiality could be brought into question. Legislative recusals are especially powerful in regulating campaign financing because they are not subject to judicial review, which has been an effective tool in dismantling campaign finance reform.
Recusals can be implemented to take into account any financing expended in support of representatives, regardless of explicit affiliation, and restrict legislators from voting when there is a conflict. For example, if a legislator were to benefit from the spending of the oil industry, even if the oil industry is just funding negative advertisements against that legislator’s opponents, the legislator would have be restricted on issues relating to regulation of oil interests. For this to work, however, recusal procedures cannot exist apart from a strong system of disclosure. Establishing a threshold of spending from which a conflict of interest can be identified is fundamental. Without disclosed spending, there would be no way to tell when a representative should be obligated to recuse themselves.
Stronger disclosure practices are on their way. Currently, campaign finance reform is one of most important pillars of HR 1, the extensive anti-corruption and pro-democracy bill Democrats have recently passed in the House. Among the most important pieces of the anti-corruption portion of the bill includes the DISCLOSURE Act. Supreme Court rulings such as Citizens United have determined that super PACs and certain tax-exempt groups can spend unlimited sums in elections. Many of these groups are not mandated to disclose their donors. The DISCLOSURE Act takes several steps to ensure the disclosure of this type of obscured spending. One of the foundational steps it takes is a requirement for organizations spending money in elections, like super PACs and certain nonprofit groups, to disclose if they have given $10,000 or more during an election cycle. The provisions of HR 1 represent some of the most recent and ongoing efforts to ameliorate the problems of campaign finance.
While assessing the political will of the houses of Congress to create and pass legislative recusal rules may be outside the scope of this article, the recent developments within the House show that the necessary institutional preconditions related to disclosure are moving forward in a way that lends itself to the feasibility of implementing recusal procedure as a powerful method of campaign finance reform.