Can vouchers fix campaign finance?

On Friday, I noted that a number of campaign finance experts, including Yale’s Bruce Ackerman and Ian Ayres and Harvard’s Larry Lessig, support a voucher system in which every eligible voter has a $50 voucher or tax credit to donate to a campaign of his or her choice. In exchange, campaigns either agree to maintaining donor anonymity to avoid influence peddling (in Ackerman and Ayres’s system) or to only accepting donations of $100 or less (in Lessig’s). The voucher idea has a lot of traction in intellectual circles, but has thus far proved less popular in legislatures than the “clean elections” model in which qualifying campaigns are given matching funds and lump sum grants.

That’s about to change. John Sarbanes, a Democratic congressman from Maryland, is planning on introducing the Grassroots Democracy Act, which would implement a voucher system for congressional elections. Here is a summary (PDF) his office provided to The Washington Post:

The bill has three components. The first is a voucher of the kind Ackerman, Ayres and Lessig endorse, implemented as a $50 refundable tax credit for congressional donations, so even people who do not make enough to pay income taxes are eligible. The second is a matching system, where campaigns that reject PAC money will get $5 from a public fund for every private donation of $1, and those that agree to collect only small contributions receive $10 from the public fund for every private dollar. The third is a fund to provide support to candidates who are facing heavy third-party expenditures from super PACs and other groups, to make sure they aren’t drowned out.

The fund to combat super PACs would probably be the trickiest part of the bill to defend in court. Last year the Supreme Court ruled in McComish v. Bennett that a provision of Arizona’s clean elections law that provided additional matching funds to candidates facing self-funding opponents was unconstitutional. The rationale was that self-funders have a free speech right to spend their own money to promote their political beliefs, and that the matching funds “chilled” such speech.

Asked whether the super-PAC fund could run into similar trouble, Sarbanes conceded that this was a concern, but said he is trying to craft the bill to avoid the features that got Arizona’s law in trouble. Rather than kicking in if a particular super PAC is targeting a particular candidate, it would kick in if all net independent expenditures exceeded a certain amount such that “the decibel level of speech has been raised so high that it’s beginning to crowd out the voice and the speech opportunity of the candidates in that race.” The goal is to get “get them back into the speech ballgame,” not to penalize super PACs for their speech. Super PACs would even be eligible for public funds if they met the same requirements of candidates, though “of course as a practical matter they won’t do that since those include things like absolute total disclosure, limiting donations you receive to a certain amount, things that legitimate candidates would be abiding by easily but a super PAC is not going to do.”

Sarbanes does not have anything against the clean elections approach, and is, in fact, a cosponsor of the Fair Elections Now Act. But he thinks vouchers deserve a place on the table alongside that approach, the DISCLOSE act, and the campaign for a constitutional amendment to overturn Citizens United. “I think there’s every reason to have a number of different proposals being put forward that are saying, ‘Public financing makes sense, here’s one version of it, here’s another version of it,’ ” he explains. “And that then becomes a strong overarching narrative, and then when you get to the stage of being able to maybe really move forward and make this happen, you have a number of different things you can choose from. .. and you can craft something that will have broad support.”

In all likelihood, the Grassroots Democracy Act isn’t going anywhere under House Speaker John Boehner. But it does represent the first public financing proposal to directly address the issue of super PACs. If Democrats retake Congress, that could give it a crucial edge over rival bills.

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