How We Can Save Democracy in Maryland, Part One

By Marc Korman.

Recently District 14 Delegate candidate Eric Luedtke wrote about the need for campaign finance reform in Maryland. If the polls are to be believed, people from across the political spectrum agree with Luedtke’s diagnosis of the problem. I am certainly not alone in the progressive community in sharing his view. Here are a few ideas, big and small, to address the concerns.

Full disclosure, I gave a campaign contribution to Luedtke.

My own, less articulate take on Luedtke’s argument is that increasing costs of local campaigns presents at least three problems. One, it is much harder for good candidates to run as the barriers to entry rise. Fundraising is a big barrier to entry. Good candidates should be able to raise funds, but the numbers are becoming astronomical. This is not to knock anyone who has successfully raised a lot of funds because they are playing by the current rules. But it should be a catalyst for reform.

Two, there is a great fear of undue influence by donors. My own view, previously stated, is that donors are building long term relationships and are not usually paying by the vote but the negative implications of that are still real.

Three, raising money takes a lot of time. That is time incumbents should be working for their constituents and challengers should be trying to meet them.

So here are a few ideas for reform from the big down to the small. But note, what follows is not a complete list. Banning corporate contributions, closing the LLC loophole, or empowering localities to enact campaign finance legislation may be sensible reforms, but I do not discuss them here:

Constitutional Amendment

The problem with a lot of public campaign finance reforms, including one that was agonizingly close to reality in Maryland back in 2009, is that the Supreme Court has not been treating them well. Although the Court has upheld the core concept of voluntary campaign finance regimes, they have mutilated many important provisions. In 2008 for example, the Supreme Court struck down the so-called “Millionaire’s Amendment.” Although not part of a public financing scheme, the “Millionaire’s Amendment” was a piece of 2002 campaign finance reform legislation that allowed a candidate running against someone who contributed a certain threshold of their own money to raise above the fundraising caps in order to level the playing field.

More recently, the Supreme Court stopped Arizona from distributing matching funds given to candidates facing privately funded challengers, again expressing skepticism about allowing public policy or finance to level the playing field and a continued interest in interfering with state campaign finance programs.

In my view, such leveling mechanisms are absolutely necessary to any statutory public finance reform because you probably cannot compel participation in public financing under the Constitution today. Without a leveling mechanism, it would be too simple for a wealthy candidate to overwhelm a publicly financed one. They may not be able to outright buy the election (just ask Ross Perot), but few campaigns would be hurt by more mail or canvassers that money can pay for.

However, this could all be addressed by a carefully crafted Constitutional amendment expressly granting Congress or the states to regulate elections notwithstanding the First Amendment or even setting up a public funding structure. That way, public financing and other campaign finance reforms could not be struck down as unconstitutional.

There are currently five Constitutional amendments pending in Congress explicitly granting the power to regulate campaign finance. Of course, passing a Constitutional amendment is a heavy lift. The last Constitutional Amendment took 202 years to be enacted. But this should be the long term goal of reformers.

In Part Two, I will look at a few more ideas.