Statement on behalf of the
American Civil Liberties Union of the District of Columbia
DC Council Committee on Judiciary and Public Safety
Public Hearing on Bill 22-0192, the “Fair Elections Act of 2017”
Thursday, June 29, 2017
Nassim Moshiree, Policy Director
Good morning, Councilmember Allen and members of the Committee. My name is Nassim Moshiree and I am the Policy Director of the American Civil Liberties Union of the District of Columbia (ACLU-DC). I present the following testimony on behalf of our more than 20,000 members in the District.
The ACLU has long advocated for public financing of political campaigns as a legitimate means of creating a level playing field and advancing the public’s interest in being able to hear the speech of all qualified candidates, as long as participating in the public financing system is truly voluntary on the part of candidates, and is fair among all qualified candidates.1 We support “The Fair Elections Act of 2017” (Bill 22-192) precisely because it satisfies these criteria.
Introduced by the DC Council on March 21, Bill 22-192 proposes to reform campaign financing in the District and provide for publicly funded political campaigns for the offices of Mayor, Attorney General, DC Council, and Board of Education. The bill would allow candidates who choose not to accept large donations to receive limited public matching funds at a rate of five to one for small donations that they collect from DC residents.
For decades, the ACLU has opposed laws and regulations intended to ban or limit what individuals as well as for-profit corporations, non-profits, and unions can spend legally on political speech. This policy derives from our belief that the First Amendment’s free speech guarantee requires us to look with skepticism at any governmental efforts that aim to limit political speech. The right to speak freely about the legitimate issues of the day is at the core of the First Amendment and that right must not be curtailed. While money is not speech, limiting the money that can be spent on political speech can serve as a limit on political speech itself.
The ACLU strongly believes that fair elections are essential to a free society, and we acknowledge that even before, but especially in the aftermath of the United States Supreme Court’s Citizens United2 decision, there has been a growing skepticism in the public about the integrity of our electoral system. We recognize that the escalating costs of campaigns for public office may restrict the breadth and freedom of political expression — that access to money, not political support or policy positions, may determine who runs for office and who is elected — and that even the appearance of impropriety can undermine the public’s confidence in the electoral system’s integrity.
Adopting a serious system of voluntary public financing can reduce the dependency of candidates on private funding for campaigns and help ensure a diversity of voices in DC elections. We also support the notion that a voluntary small-donor campaign finance scheme has the potential to promote greater accountability of public officials to their constituents, and to promote racial, gender, and income equity in the District, given that women and people of color make up less than 31 percent of donors giving more than $1,000 to District campaigns, but represent a significantly larger portion of donors giving under $100.3
By expanding the resources available for political advocacy, Bill 22-192 can address these legitimate concerns, giving DC residents more choices while also remaining consistent with our constitutional commitment to freedom of speech and association.
We do have a few suggestions for improvements to the bill which I will plan to submit for the record, but I want to address one concern in particular about a provision of the bill that we think would be best to remove.
In general, Bill 22-192 would allow participating candidates to accept contributions only from individuals. But it also allows participating candidates to accept contributions from a “People PAC,” which is a “political committee that only accepts contributions from individuals that do not exceed $250 per individual per calendar year.”4 We take no issue with this provision.
However, section 10(c) of the bill currently states that, for purposes of contributing to People PACs, the definitions of “contributions from individuals” includes “labor or other membership organization[s] whose members are limited to individual dues, whose amount and frequency are predetermined and the payment of which is a condition of membership in the organization.”
We think that the language of this provision could use some clarity, but our main concern is that the purpose of the provision is to allow a special carve-out for labor unions (and perhaps some membership organizations) to qualify as “individuals” in order to allow them to contribute to People PACs. Labor unions are not individuals any more than partnerships or corporations are individuals. It seems to us that this provision 10(c) undermines the intention of the law to limit small-donor funding of elections to actual people.
While the amount that labor unions (and perhaps some other membership organizations) will be able to give under this provision is not large enough to create an undue influence on an election, it does create a double standard when the bill does not allow contributions to “People PACs” by other types of organizations like partnerships and small businesses. The provision’s discrimination in favor of labor unions and against other kinds of entities may also be subject to legal challenge. Making political contributions is an activity protected by the First Amendment, and labor unions do not have greater First Amendment rights than other kinds of organizations.5
Removing provision 10(c) from the bill will protect the integrity of the small-donor funding system by reinforcing that individuals are just that — individuals.
Finally, we commend the DC Council for supporting a comprehensive and meaningful system of public financing by introducing this bill. We look forward to working with the Council and our community partners in the DC Fair Elections Coalition to make this voluntary and fair system a reality for the District. In doing so, we will stress fidelity to the principles protected by the First Amendment with the goal of expanding, not limiting, political speech.
1. We also support carefully drawn disclosure rules, reasonable limits on campaign contributions, and stricter enforcement of existing bans on coordination between candidates and super PACs.
2. In Citizens United v. Federal Election Commission, 558 U.S. 310 (2010), the U.S. Supreme Court held that freedom of speech prohibits government from restricting independent political expenditures by nonprofit corporations, for-profit corporations, labor unions and other associations.
3. Demos Report, “DC’s White Donor Class: Outsized Influence in a Diverse City” available at http://www.demos.org/publication/dc%E2%80%99s-white-donor-class-outsized...
4. See Sec. 10(a), lines 303-304 of the bill
5. In Protect My Check, Inc. v. Dilger, 176 F. Supp. 3d 685 (E.D. Ky. 2016), the State of Kentucky conceded, and the court agreed, that “that a complete ban on direct contributions that applied to corporations but not to LLCs and unions could not survive strict scrutiny for purposes of equal protection, and that LLCs and unions should be treated the same as corporations concerning their ability to form and administer PACs that contribute to state-level candidates.” Id. at 689