Politics, Prisoners, & Power: Election Law in 2016, Part II

This is part two of a two-part discussion with Professor Anthony Johnstone, who teaches Constitutional Law and Legislative & Political Process at University of Montana School of Law. Along with the constitution and legislation, Johnstone writes about and studies election law and campaign finance. Here, he answers questions about voting, the future of the electoral process, and the complex world of campaign finance. Partcampaign_finance_sm I focuses on election law, who creates it, and who gets to vote. Part II tackles campaign finance and reform.

In national elections, how has campaigning and elections changed since Citizens United? What are the most monumental changes you’ve seen?

Over the long term, there has been a steady increase in the amount of money in politics. What congress and the courts have done has not been to really limit that money, but to redirect it. It’s often said that there’s a hydraulics of campaign finance reform. Once you dam one channel of money in politics, the money just flows elsewhere.

After Citizens United, what we have not seen is more corporate money. What we have seen is the liberalization of wealthy individuals and nonprofit money coming through Super PACs, which, because they do not give money directly to a candidate, can spend unlimited amounts, and, so-called “dark money groups” or nonprofit groups which say they’re not PACs. PACs disclose their donors. So, you have not seen a big change in terms of what corporations are spending, but you have seen a big change in a green light for Super PACs funded by individuals and wealthy individuals and nonprofits.

That goes against what I assumed would happen. I’d assumed that there would be an influx of corporate money being funneled into elections. So, you’re saying that prior to Citizens United, that was already happening, but through other means?

Yes. Corporations are people. One corporation isn’t an individual, it isn’t a person. But a corporation is just a group of people and their spending decisions are dictated by who’s at the top. And, as William Clark showed during the days of the Copper Kings, there’s no reason you have to pull out the corporate checkbook when you’re already paying yourself out of the corporation to give plenty of money on your own. And that way you get the dinner invitations, too.

Basically, corporate executives who have a ton of money are spending more now than they did before, but they’re doing it through Super PACs and nonprofit organizations, not with their corporate checkbook. So, the real difference was not Citizens United specific holding with respect to corporate and union spending in the 60 days prior to an election, it was Citizens United rationale that independent expenditures, whatever their source, cannot be regulated. So, after waves of first soft money in the 1990s, and then 527s in the 2000s, now we’re seeing Super PACs and nonprofit groups. The same money is just going through these different conduits.

How is this new campaign finance scheme directly affecting Montana?

Within the state, it’s led to more and better campaign finance disclosure of groups which operate within the state. It remains to be seen how far the law will be applied to these out-of-state groups that continue to use different types of conduits to avoid disclosure. This is true across the board for national groups, like the Republican State Leadership Committee, which has spent, not just in partisan elections, but in judicial elections in Montana. It’s doing so by writing big checks to a local affiliate, thereby not disclosing who its major donors are outside. That’s also true for the Democratic and Republican Governors Associations.

Was this not happening before?

It was happening before, but when it was happening before, our excuse was that we didn’t have good campaign disclosure laws. Now, we have pretty good campaign disclosure laws, and the only question is where the gray areas are. These out-of-state groups are trying to expand and exploit these gray areas and the commissioner of local practices and reformers are trying to shrink them.

How are Montana and federal disclosure laws distinct?

 They are different, but they don’t have to be different. Originally, states would set campaign finance law for both state candidates and the state’s federal candidates. So Montana, if it had a problem with the senate races and the outside money, they could fix it, even for their federal officers. But, congress has preempted state regulation of that, so they are now separate schemes.

The main differences are federal law has much higher contribution limits; it has relatively higher disclosure thresholds. Both of which might actually be good things in terms of increasing participation, because small donors don’t have to worry about their boss or their friends knowing who they’re giving money to. But, the Federal Election Commission, who’s the enforcer of these laws, is asleep at the switch in terms of expenditures. They’re not quite asleep. They’re awake, but there’s six of them and three of them are republicans and three are democrats and they can’t agree on anything important, by design.

So, to take those three things – contribution limits, disclosure limits, and independent expenditure regulation – at the state level. Contribution limits are lower, but not as low as they were before a federal court struck them down. Our disclosure limits, however, are very low – $35. That might be a problem to the extent that it prevents small donors from getting involved in a small state. But, we have a very energetic commissioner of political practices. So, the laws that we have are getting enforced. Lower thresholds more enforcement in Montana. Higher thresholds less enforcement on the federal level.

Do you think our current state of campaign finance is where we’re staying for a while, or do you see it changing anytime soon?

The easiest thing to focus on, just because there are fewer of them, is the Supreme Court. We will know after the election whether the Supreme Court will stand by its holding in Citizens United that disclosure requirements are constitutional. That’s the part of Citizens United that is the most useful piece to reformers now, but people don’t pay attention to. But, of course, them saying that it’s constitutional doesn’t actually mean that it becomes policy, or good policy. That’s going to turn on a congress that is polarized that likely to remain polarized.

Professor Anthony Johnstone teaches Constitutional Law and Politics & Legislation at University of Montana School of Law.

One of the interesting questions will be to what extent can Democrats take advantage of the deregulation of campaign finance law to throw a lot of money at making better campaign finance law. Though, there are actually campaign finance reform Super PACs that recognize it’s a necessary evil.


My pet innovation – that localities in some states are moving toward – is more public financing for elections. Not necessarily the “Welfare for Politicians” model, where the government gives taxpayer money to candidates who meet certain requirements, but more along a voucher or tax credit plan. You know, in Montana, if every citizen had $20 to spend on elections, we would have fully publicly-financed elections. There’s not actually that much money in politics. If you’re trying to budget it and provide vouchers to citizens so that they’re the ones who are the big campaign donors, instead of wealthy individuals, it’s actually not that much in Montana. About $20 per person per year would be enough to fund the elections.

So, the Montana government would give each citizen at $20 voucher and then that money would have to be used to fund a candidate that best fits their ideals?

Actually, a little broader – any registered political committee, candidate, or political party. They can give it to their teacher’s union PAC. The result of this is that with all that money out there, candidates suddenly have a new reason to talk to their constituents. So, when they’re knocking on doors, one of the things they could say is “By the way, have you submitted your voucher yet? I’d like to try to get your support.” That would create more politics. We all would be as lucky as the wealthy donors who are getting hit up for donations all the time. I don’t think there’s anything wrong with those conversations. Politicians now only have incentives to have those conversations with big donors. We want politicians to be hitting the rest of us up for money as well. We want to have those conversations to say “Why do you deserve my $20 this year?”

Is there any traction on this?

There’s actually deep support from both ends of the spectrum.

Interview edited for length and clarity.

For more on Anthony Johnstone head to his faculty page.
Law Review Articles from Anthony Johnstone:
Recalibrating Campaign Finance Law, 32 Yale L. & Pol’y Rev. 217 (2013)
The Federalist Safeguards of Politics, Harv. J. L. & Pub. Pol. (2016)
A Madisonian Case for Disclosure, 19 Geo. Mason L. Rev. 413 (2012)

By Chelsea Bissell


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