Money for Nothing and Your Facts for Free: An Exploration of Political Spending and a Proposal for Combatting Big Money Interests

Money for Nothing and Your Facts for Free: An Exploration of Political Spending and a Proposal for Combatting Big Money Interests

Article | 104 KY. L. J. ONLINE 54 | January 11, 2016

Chris K. Stewart[1]

Introduction

Each election since 1998 has cost more than the one before it.[2] Total spending for the 2014 midterm was $3.77 billion.[3] Some estimates project spending on the 2016 presidential election alone may exceed six billion dollars.[4] While this consistent uptick in spending is a powerful testament to the ever-increasing role of money in politics, two other statistics are even more disturbing. First, in 2014 House races, the candidate who outspent the opposition claimed victory 94.2% of the time.[5] Second, in the 2014 midterm election, nationwide voter turnout dropped to its lowest level since 1942.[6] The dramatic uptick in spending coupled with historically low voter turnout paint a grim picture of the future of American elections.

Since Citizens United v. Federal Election Commission,[7] scholars have offered numerous legal arguments hoping to convince the Supreme Court to reconsider its position on the Bipartisan Campaign Reform Act (BCRA). However, in the wake of American Tradition Partnership v. Bullock[8] and, most recently, McCutcheon v. Federal Election Commission,[9] the genie is decidedly out of the bottle, and the current Court is unlikely to reverse the trend. Thus, attempting to litigate the matter head-on is fruitless.

This note will explore the political history that has brought us to this point. It will then propose two solutions, one of them legal and the other non-legal. The focus will be on the Commonwealth of Kentucky, though many arguments apply to other states as well.

The first proposal is to parry the increase in spending with an increase in voter access via early voting. Early voting allows registered voters to cast an in-person vote during a defined period before Election Day. Kentucky does not currently have an early voting scheme, and this note argues that early voting facilitates increased voter access across a broad spectrum of potential voters. When casting a ballot is as easy as possible for all eligible voters, the influence of money in politics can be minimized. Moreover, the Sixth Circuit Court of Appeals outlined the constitutional importance of early voting by applying heightened scrutiny to Ohio’s early voting law in Obama for America v. Husted.[10]

The second proposal involves the increased presence of nonpartisan, fact-checking services. For younger voters, these organizations should step up their social media presence. Platforms such as Facebook, Twitter, and Instagram should offer free ad space to permit easy-to-understand explanations of misleading campaign ads. For older voters, local television stations should adopt, as part of their campaign coverage, a weekly segment that offers a non-partisan, fact-based assessment of the most recent ads for local elections of interest.

Ultimately, the goal of election reform should be to allow as many eligible voters as possible to exercise the franchise, armed with reliable information that enables them to cast a vote reflective of their personal beliefs. As Louis Brandeis famously noted, “Sunlight is said to be the best of disinfectants; electric light the most efficient policeman.”[11]

I. Corruption and Concealment: A Historical Overview of Campaign Finance Law

A. The Early Years

American politics has always carried the stigma of corruption. Originally, officials feared that candidates might corrupt voters or the voting process through bribes or other means. George Washington may have been unable to tell a lie, but when he ran for the Virginia House of Burgesses in 1758, that didn’t stop him from spending thirty-nine pounds, six shillings on purchasing for voters “‘a hogshead and a barrel of punch, thirty-five gallons of wine, forty-three gallons of strong beer, cider, and dinner for his friends.’”[12] Washington’s election agent provided about a half-gallon of booze for each voter.[13] This process was affectionately known as “swilling the planters with bumbo.”[14]

At the end of the nineteenth century, America saw the rise of the career politician.[15] These politicians often were not independently wealthy and therefore relied heavily on contributions from others to run a campaign.[16] With this trend came modern, more expensive campaigns, and the script was flipped: new fears emerged that contributors would exercise undue influence on governance, rather than the original concern, maintaining the integrity of the electorate.[17]

Early campaign finance legislation enjoyed bipartisan support, with Republican president Theodore Roosevelt giving fervent speeches to Congress calling for limitations on the influence of special interests and increases in disclosure requirements.[18] This led to the passage of the first federal campaign finance disclosure law, the Publicity of Political Contributions Act of 1910 (Publicity Act).[19] The Publicity Act required congressional candidates to submit disclosure statements regarding the identity of their donors before the general election.[20] The Act did not, however, apply to candidates for the presidency, a weakness that would become fully apparent during the Teapot Dome Scandal where Interior Department Officials were bribed in exchange for oil drilling rights.[21] The scandal prompted Congress to amend the Publicity Act with the Federal Corrupt Practices Act in 1925,[22] which would serve as the principal campaign finance law for nearly five decades.[23]

B. Calls for Reform as Spending Ramps Up

By the late 1960’s, an explosion in campaign spending coupled with a nearly universal evasion of the prohibition against corporate expenditures and disclosures, “which was ‘honored more in the breach than in the observance,’” provided the impetus for reform.[24] Congress passed and President Nixon signed the Federal Election Campaign Act of 1971 (FECA).[25] FECA limited the total amount candidates could spend on advertising.[26] It also limited the amounts candidates and their families could spend on their own campaigns and provided for the reporting of sources and uses of campaign funds.[27] According to a statement released upon signing the bill, President Nixon hoped that “this legislation will guard against campaign abuses and will work to build public confidence in the integrity of the electoral process.[28] The irony of this statement cannot be ignored, given the laundry list of Nixon’s FECA violations that would come to light over the next two years.[29] These would include, among many others, a $2 million donation from American Milk Producers, Inc. divided into $2500 contributions from hundreds of shell committees given in exchange for federal price supports.[30]

Outrage over Watergate led Congress to amend FECA in 1974. Challenges to the amendments appeared almost immediately. In 1976, the Supreme Court issued its first ruling on FECA in Buckley v. Valeo.[31] The Court upheld as constitutional the right of Congress to limit individual contributions, finding that corruption or the appearance of corruption was sufficient justification to limit these donations.[32] On the other hand, the Court struck down FECA’s limitations on individual expenditures, meaning moneys spent in support of an individual candidate but not given directly to the campaign.[33] Buckley thus left some room for campaign finance regulation, but future legislation and subsequent First Amendment challenges would erode such laws far beyond the Buckley Court’s wildest dreams.

C. Soft Money, the Bipartisan Campaign Reform Act, and the Maelstrom That Followed

The Buckley Court narrowly construed FECA’s disclosure requirements to only apply to acts of express advocacy. “Magic Words” such as “vote for” or “reject” had to be present before candidates were required to disclose sponsors of the ads.[34] Not surprisingly, candidates, donors, and any number of interest groups, corporations, and unions began to circumvent the disclosure through soft money advertising.[35] These groups were not subject to disclosure requirements and could therefore spend unlimited amounts on what came to be known as sham issue ads.[36] Typically, these ads would feature an issue of the day followed by a description of the candidate’s position on that issue.[37] Viewers would then hear a message such as “call up this candidate and say thank you for her commitment to this issue.”[38] Because there was no express call for anyone to vote for the candidate in question, no one need report the sources or costs of these advertisements.[39]

Eventually, Congress amended FECA with the Bipartisan Campaign Reform Act of 2002 (BCRA). This placed a ban on soft money and addressed the problem of express versus issue advocacy by creating a category of speech it termed electioneering communication.[40] Congress defined electioneering communications to include “any broadcast, cable, or satellite communication” that “refers to a clearly identified candidate for federal office,” is made within 60 days of a general election or 30 days of a primary or convention, and “is targeted to the relevant electorate.”[41]

BCRA even included what appears to be a backup definition of electioneering communication. In the event the original is found constitutionally deficient, BCRA provides that an electioneering communication is:

any broadcast, cable, or satellite communication which promotes or supports a candidate for that office, or attacks or opposes a candidate for that office (regardless of whether the communication expressly advocates a vote for or against a candidate) and which also is suggestive of no plausible meaning other than an exhortation to vote for or against a specific candidate.[42]

Within days of the passage of BCRA, eleven lawsuits emerged challenging the new law.[43] Eighty-four plaintiffs, later reduced to seventy-seven, spanned the political gamut from the National Rifle Association and Republican National Committee to the California Democratic Party and the AFL-CIO.[44] But the lead plaintiff was Senator Mitch McConnell of Kentucky.[45] After an exhaustive fact-finding process, followed by nine hours of oral arguments featuring twenty-three lawyers, the district court issued its opinion, which upheld much of BCRA.[46] The Supreme Court granted certiorari, and the oral argument was an unusually long four hours with eight attorneys.[47] On December 10, 2003, eight of nine justices voted to uphold the electioneering communications portion of BCRA.[48] Perhaps more importantly given the subsequent history in Citizens United, the Court voted to uphold the prohibition of the use of corporate and labor treasury funds in electioneering communications.[49] The Court reasoned that corporations and labor unions could adequately influence the political process through their political action committees, and the restrictions on the use of general funds acted as a regulation, not a restriction.[50] Moreover, the Court killed the magic words test from Buckley, recognizing that using it as the measure of express advocacy “is functionally meaningless.”[51]

The McConnell Court left open the possibility for as-applied challenges to the electioneering communications disclosure requirements, and it was only a matter of time before new litigation cropped up to test the limits of BCRA.[52] In 2007, Wisconsin Right to Life challenged the FEC, arguing that the prohibition against corporate and union funds for ads that are not express advocacy or their functional equivalent was unconstitutional.[53] The Supreme Court agreed, and corporations and unions were suddenly free to open their coffers for independent expenditures on issue advertisements.

This sudden shift in campaign finance jurisprudence in just four short years seems baffling on its face but makes much more sense in the light of one other important change. Justice O’Connor, author of the 5-4 opinion in McConnell, retired in 2005[54] and was replaced by the conservative Justice Alito.[55]

Finally, in 2010, the Court held by a 5-4 margin in Citizens United v. FEC that the government’s previous justification for regulating corporate expenditures, preventing corruption or the appearance of corruption, no longer passed constitutional muster.[56] Justice Kennedy narrowed the definition of corruption to encompass only situations where there is clear evidence of a quid pro quo exchange between candidate and donor, not merely signs of ingratiation or access.[57] This ruling signaled the removal of a final obstacle, and corporations and unions could subsequently spend directly from their treasuries on express advertisements on behalf of candidates.

The response to Citizens United was immediate and overwhelming. The Brennan Center for Justice has compiled data from U.S. Senate races since 2010.[58] Senate races are a particularly effective measure of outside influence on elections because the balance of power in the Senate has been a genuine issue in all three elections since 2010.[59] Outside spending on candidates has more than doubled since Citizens United. This is a conservative estimate, which does not include the innumerable sham issue ads, which still carry no disclosure requirements.[60] While some hoped that state laws might be able to combat the effect of Citizens United, the Supreme Court made it clear that its decision was not simply made on the facts of that case, but was controlling precedent until otherwise stated.[61]

II. Moving Forward

Given the clear trend in campaign finance jurisprudence toward allowing greater contributions with minimal disclosure, attempting to combat big money influence in politics through the FEC and federal judiciary seems, at least for the time being, a fool’s errand. Another approach is needed, and it should happen at the state and local level through a combination of insuring access to the polls through early voting as well as providing citizens with nonpartisan perspectives on the frequently misleading advertisements promulgated by both parties.

A. An Overview of Early Voting

There will likely continue to be attempts by some state legislatures to rein in political spending. However, as these laws will undoubtedly face lengthy, expensive, and almost certainly successful First Amendment challenges, opponents of big money spending should take a more pragmatic, grassroots approach. By turning their attention away from litigation and toward efforts to expand access to the polls, opponents of political spending will encounter a new path to their goal while simultaneously swelling support for voter access. Early voting is one obvious way to expand the franchise, thus insuring that voting is as easy as possible for as many citizens regardless of the flood of political spending.

While in person early voting is a relatively new phenomenon, researchers are beginning to collect enough empirical data to answer some questions. In assessing the efficacy of electoral reforms, researchers typically weigh at least two considerations.[62] First, researchers ask whether the reform increases the level of participation.[63] Second, the researchers ask whether, and to what extent, the reform affects the quality of voter participation.[64]

Enough empirical evidence has accumulated to answer the first question. In general, early voting schemes do not serve to bring new voters into the system. However, the data suggest that early voting does encourage voters to participate in lower-intensity contests that they would otherwise skip.[65] As for the second question, the data are as of yet too sparse to assess whether early voting impacts the quality of democratic decision making.[66] However, regardless of what future analysis reveals as election cycles pass and more data are gathered, the impact of early voting on the quality of the electorate is secondary to its objective ability to increase voter access.

A second effect of early voting schemes is how they may impact the political calculus that candidates use to structure their campaigns. In American presidential elections, recent history reveals a clear pattern. Campaigns become extremely active around Labor Day, followed by candidate debates in September and October, and a final push near November and Election Day.[67] Early voting can impact this cycle. In districts with early voting, candidates could hypothetically find themselves flooding the market with expensive advertising, unintentionally targeting citizens who have already voted.[68] Of course, this could simply cause campaigns to pull back at an earlier point in the campaign and flood the market during the early voting window. However, this strategy could potentially create marketing overkill and lessen the impact of the advertisements, thereby depriving money interests of some measure of influence.

B. The Equitable Case for Early Voting

Not everyone can manage to make it to the polls on Election Day. Consider the following hypothetical. A registered nurse lives in the East end of Jefferson County, Kentucky, and works on the far west end of Jefferson County. This nurse works twelve-hour shifts. He must clock in at 7:00 AM, and he clocks out at 7:00 PM. His commute is, on average, forty-five minutes. In order to clock in on time, he leaves his home each morning at 6:00 AM.

Kentucky polls open at 6:00 AM.[69] The Kentucky Constitution provides that the legislature should fashion a law requiring employers to give employees leave to vote during the work day.[70] While this law is on the books,[71] the reality of our hypothetical nurse is that he works in an underserved area, performing emergency services. Leaving work for him could cause him to choose between a person’s physical wellbeing and his right to exercise the franchise. Moreover, because polls require all voters to be in line at 6:00 PM,[72] our nurse cannot vote after his shift, which ends at 7:00 PM.

This hypothetical paints a picture of an able-bodied, educated person for whom voting could be nearly impossible during the statutorily-defined polling hours. However, it is worth noting that voting on Election Day can create substantial burdens for many other groups. It goes without saying that physically accessing the polls creates additional barriers for the physically disabled. Additionally, single working parents, the poor, and African Americans have been shown to take advantage of early voting at a rate disproportional to others.[73] For these early voters, the democratic calculus extends beyond simply weighing issues, candidate qualifications, or special interests. Rather, these voters face a host of systemic barriers and must further ask how they will get to the polls, whether they can spare the time and potential lost income, and in many cases, who will watch the kids.[74] Because of scenarios such as these, thirty-three states and the District of Columbia have adopted some form of early voting.[75]

C. The Constitutional Significance of Early Voting

It is clear from the previous section that early voting is a useful tool to facilitate voter access. However, there is an additional compelling reason for Kentucky to adopt early voting as well. The Sixth Circuit Court of Appeals has underscored the importance of early voting by applying heightened scrutiny to Ohio’s early voting scheme in Obama for America v. Husted.[76]

On July 17, 2012, Obama for America, the Democratic National Committee, and the Ohio Democratic Party filed suit in district court against John Husted in his official capacity as the Attorney General of Ohio.[77] At issue in the case was an Ohio statute that imposed a deadline of 6:00 PM for in person early voting, while allowing military and overseas voters to cast votes through the weekend.[78] The plaintiffs alleged that the statute imposed an undue burden on the fundamental right to vote, and that this burden was not supported by a sufficiently weighty state interest.[79] The state argued that the need for providing military voters with extra time, coupled with the burden on local election boards of facilitating the additional time for non-military voters was a sufficient need to allow for the disparate cutoff times.[80]

The district court held a hearing and considered a wealth of demographic information, legislative history, and depositions of military officers and voting experts.[81] After considering the evidence, the district court granted the plaintiff’s motion for a preliminary injunction and ordered that early voting in Ohio be available to all voters regardless of military status.[82] The State and various interveners appealed.[83]

Ohio originally implemented its early voting scheme after the 2004 election, when long lines kept polls open—in some cases, into the early hours of the morning after Election Day.[84] Many Ohio residents took advantage of the new opportunity, and in 2008, 20.7% of registered voters cast early ballots, which represented 29.7% of total votes cast.[85]

Before drawing its legal conclusions, the court considered several demographic factors in the evidentiary process.[86] Expert testimony revealed a number of truths concerning the demographics of citizens who chose to vote early.[87] Those who took advantage of the option were “more likely than election-day voters to be women, older, and of lower income and educational attainment.”[88] Moreover, statistics from Cuyahoga and Franklin County, the homes of Cleveland and Columbus respectively, suggested that early voters were disproportionately African American.[89] Regardless of the overall impact on turnout, these statistics confirm what people on the ground know intuitively: making it to the polls on Election Day is much more difficult for the poor, elderly, and disabled.

The legal analysis follows the demographic assessment.[90] The court recognized that voting is one of our most precious fundamental rights, and that equal protection applies not only to the granting of the franchise, but also in the manner of its exercise.[91] Moreover, the court added that heightened scrutiny under the Equal Protection clause is invoked when different groups of voters are treated differently.[92] This distinction was an important signal of which way the subsequent analysis would go given that the Ohio law clearly created different groups of military and non-military voters.

The court then went on to determine which level of scrutiny to apply to the Ohio early voting law.[93] A general grievance by a plaintiff that she is being treated differently from another person in a similarly-situated class will not receive more than a rational basis review unless she can identify a corresponding burden to the franchise.[94] The level of scrutiny will depend on the severity of the burden.[95] Where the burden is severe, strict scrutiny will apply, but most cases fall under the flexible balancing test outlined in Anderson v. Celebrezze and Burdick v. Takushi.[96] The court outlined the standard as follows:

A court considering a challenge to a state election law must weigh “the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate” against “the precise interests put forward by the State as justifications for the burden imposed by its rule,” taking into consideration “the extent to which those interests make it necessary to burden the plaintiffs’ rights.”[97]

The State and interveners urged the court in Obama for America to apply a rational basis standard, arguing that a straight-forward equal protection claim required a straight-forward equal protection analysis.[98] But the court wrote, “However, when a state regulation is found to treat voters differently in a way that burdens the fundamental right to vote, the Anderson-Burdick standard applies.”[99] Notably, this language clearly indicates that the court was affording early voting the same constitutional weight as an in-person vote cast on Election Day.

The State further based its claim on McDonald v. Board of Election Commissioners, where the Supreme Court applied rational basis review to an Illinois law denying un-sentenced inmates absentee ballots.[100] The McDonald court found no fundamental right to receive an absentee ballot, particularly where the regulation did not discriminate on the basis of race or wealth, and there were no other signs that the state had otherwise restricted the inmate’s right to vote.[101] However, the court in Obama for America disagreed and created an important distinction. Opponents to early voting may argue that, because in-person voting is still available regardless of early voting, any changes to the early voting laws do not fundamentally affect a citizen’s right to vote.

The Obama for America court held that the plaintiffs need not be legally prohibited from voting, only that they present a showing that their right to vote was burdened, and they had few other alternatives to access the ballot.[102] The court pointed to statistical sampling that suggested that some one hundred thousand Ohio voters planned to vote in the three days in dispute, and these voters were disproportionately female, older, and of lower education levels.[103] By shortening the early voting window after initiating the system, the state of Ohio created enough of a burden on the right to vote to require justification under the Anderson-Burdick standard.[104]

Ohio needed to offer justifications both for why it was restricting voting rights as well as why it treated non-military voters differently from military voters.[105] As for the first, Ohio claimed that local election boards were too busy in the days leading up to Election Day to accommodate early voters.[106] The State justified disparate treatment of voters with the need to accommodate military voters and their families.[107] Ohio argued that, because military voters can be called away at a moment’s notice, the State was justified in extending early voting privileges to these voters while denying it to others.[108]

The court weighed the magnitude of the plaintiff’s injury against Ohio’s proffered justifications.[109] As for the contention that election boards needed the window to prepare for Election Day, the court cited evidence that, in fact, early voting may alleviate Election Day problems by eliminating long lines and the need for extended polling hours.[110] Moreover, the court noted that “Ohio’s statutory scheme is not generally applicable to all voters, nor is the State’s justification sufficiently ‘important’ to excuse the discriminatory burden it has placed on some but not all Ohio voters.”[111]

The court similarly rejected Ohio’s second justification, that military voters require special accommodations because of the risk of being suddenly called away. Here, the court points out that the Equal Protection Clause does not forbid classifications, it merely prohibits treating groups of individuals differently who are otherwise similarly situated.[112] In this case, while military voters are distinct for certain aspects of the voting process, like the need for more liberal rules for obtaining and submitting absentee ballots,[113] the court does not accept Ohio’s justification for the purposes of early voting.[114] The court reasons, “[A]ny voter could be suddenly called away and prevented from voting on Election Day. At any time, personal contingencies like medical emergencies or sudden business trips could arise, and police officers, firefighters and other first responders could be suddenly called to serve at a moment’s notice.”[115] Therefore, while Ohio has a justification for offering military voters more time to vote, there is not a corresponding justification for offering other voters less time, and shortening the window of early voting for some, and not all voters, represents an unconstitutional burden on the right to vote.[116]

In this case, the level of scrutiny and the reliance on equal protection are clear indications that the court intentionally analyzed early voting in Ohio as a fundamental right on par with in-person voting on Election Day.[117] This suggests that, barring further clarification from additional litigation resulting in a resolution of the issue by the Supreme Court, early voting will from now on receive heightened scrutiny in the Sixth Circuit. The implications for Kentucky are two-fold. First, given the reasons outlined in part A) of this section, Kentucky should adopt a system of early voting to expand access to the polls. And, second, in order to implement a constitutional early voting scheme, the system should be comprehensive and should not make any efforts to classify similarly situated voters.[118]

D. Nonpartisan Fact-Checking

There is a second solution, which exists independent of any courtroom or legislative chamber. This solution involves increasing the quality of voter participation by insuring that voters arrive at the polls on Election Day having chosen their candidates based on good information, not corrupted by misleading advertising. The neatest way to accomplish this is through the promotion of fact-checking services. If fact-checkers occupy a more visible platform and broadcast as widely as possible, opponents of the explosion in political spending may eventually feel satisfied that, at the very least, voters of all demographics possess the requisite tools for making an informed decision on Election Day.

As previously stated, much of the money in political campaigns is dedicated to advertising, and much of these advertisements are, at best, variations on the truth, and at worst, misleading, false, and potentially defamatory statements.[119] For example, when Mitt Romney kicked off his campaign, one of his first ads featured a sound bite of President Obama saying, “if we keep talking about the economy, we’re going to lose.”[120] This commercial stands as a prime example of a misleading ad because, while President Obama did utter those words, the Romney camp truncated the quotation so badly that it ignored one crucial fact, when President Obama made the statement, he was directly quoting Senator John McCain, his Republican opponent in the previous election.[121] The reductio ad absurdum of this technique would be a commercial with President Obama saying “Vote for Romney,” while leaving off the first half of the statement, “Republicans contend you should . . .”

The website PolitiFact.com rated this advertisement “Pants on Fire,” its most excoriating rebuke of the truthfulness of a statement.[122] However, given the relatively limited scope of PolitiFact when compared with the Romney campaign, the effect of the “Pants on Fire” rating did less than one might think to impact the efficacy of the advertisement. In reality, the die was cast. Potential voters heard the message and turned their attention toward the economy, focusing on Obama’s policies in the process.[123]

In 2009, PolitiFact won a Pulitzer Prize for journalism for their coverage of the 2008 presidential election.[124] The website sifted through over 750 political claims made during the 2008 campaign.[125] Since then, PolitiFact has increased the breadth of its coverage, regularly fact-checking the Sunday news shows in a series called PunditFact,[126] and even live-tweeting the primary debates in the run up to the 2016 presidential election.[127] PolitiFact used Twitter to solicit questions from debate viewers, and relied on its extensive body of work to provide up-to-the-minute assessments of candidate’s veracity.[128] This information can combat misleading political advertisement, but the average voter needs greater access to this information.

One method to increase the influence of fact-checking websites is to amplify their broadcast power. The reach of misleading political ads is enormous. Justice Brandeis famously noted, “If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence.”[129] If this is so, then perhaps it would benefit voters to hear the messages of fact-checkers as frequently as they hear misleading radio and television ads. Concerned citizens should consider, rather than donating to a super PAC, using their political capital to support non-partisan fact-checking. Presently, effective advertisement would expansively target social media platforms. Social media is an effective means of reaching millennial voters, but television and radio advertising still garners the bulk of political spending.[130] Given this, local news broadcasts should adopt a nonpartisan, fact-checking segment in the period approaching the election. The news, traditionally a source of objective reporting, will make a strong ally in the effort to create an informed electorate.

To clarify, all of these efforts must be accomplished without governmental involvement. The state is a poor arbiter of truth. The government cannot, therefore, serve as the fact-checker. At least one state supreme court has held truth in advertisement laws to be unconstitutional because they placed the burden on the government of proving truth or falsity.[131] However, some claims, as PolitiFact has proven, are simply false, and as many of these should be brought to light by non-partisan, not for profit fact-checkers as possible.

Conclusion

While the recent explosion in political spending is unlikely to slow down any time soon, implementing an early voting program and promoting robust fact-checking will insure that, on Election Day, the roar of political spending does not drown out the voice of the most important political speakers, the voters. Additionally, these steps can insure that the voice with which the electorate speaks is informed and reflective of the people’s will. By allowing early voting, the Kentucky legislature would signal that, no matter how partisan political issues may be, voters can trust that, during election season, their representatives and hopeful representatives are as concerned with providing a government that reflects the will of the constituency as they are with electoral success. The heightened scrutiny applied to early voting laws in the Sixth Circuit underscores the constitutional significance of early voting programs.

Second, the tidal wave of political advertisements can be met with truth and nonpartisan fact-checking on a national, state, and local level. Increasing the visibility of these important organizations will serve to offer a populist response to the shifting control of political spending from individual contributors to a few donors with outsized financial resources.

As more people realize the futility of further litigation against the money interests in light of the current Supreme Court’s ideological composition, there is no doubt that additional grassroots ideas will crop up to combat the influence of money in politics. Some will be more successful than others, but advocates for voting rights and campaign finance reform should openly welcome new ideas, allowing each to succeed or fail on its own merits. At the end of the day, the goal for everyone should be an open, honest, and fair political process.


[1] I want to extend my sincerest thanks to the Kentucky Law Journal, Professor Josh Douglas of the UK College of Law, my wife Emily, and my guide dog Baron for their immeasurable contributions to my achievements in law school.

[2] Russ Choma, Money Won on Tuesday, but Rules of the Game Changed, OpenSecrets: Blog (Nov. 5, 2014), http://www.opensecrets.org/news/2014/11/money-won-on-tuesday-but-rules-of-the-game-changed/.

[3] Russ Choma, Final Tally: 2014’s Midterm Was Most Expensive, with Fewer Donors, OpenSecrets: Blog (Feb. 18, 2015), http://www.opensecrets.org/news/2015/02/final-tally-2014s-midterm-was-most-expensive-with-fewer-donors/.

[4] See e.g. Meg James, Political Ad Spending Estimated at $6 Billion in 2016, L.A. Times (Nov. 18, 2015), http://www.latimes.com/entertainment/envelope/cotown/la-et-ct-political-ad-spending-6-billion-dollars-in-2016-20151117-story.html.

[5] Id.

[6] Doug Mataconis, Voter Turnout in 2014 Midterms Hit Lowest Point Since 1942, Outside the Beltway (Nov. 15, 2014), http://www.outsidethebeltway.com/voter-turnout-in-2014-midterms-hit-lowest-point-since-1942/.

[7] 558 U.S. 310 (2009).

[8] 132 S. Ct. 2490 (2012).

[9] 134 S. Ct. 1434 (2014).

[10] 697 F.3d 423, 430 (6th Cir. 2012).

[11] Louis D. Brandeis, Other People’s Money – Chapter V, Louis D. Brandeis School of Law Library, https://louisville.edu/law/library/special-collections/the-louis-d.-brandeis-collection/other-peoples-money-chapter-v (last visited Dec. 28, 2015).

[12] Mary V. Thompson, Beer. George Washington’s Mount Vernon, Mount Vernon Estate & Gardens, available at http://www.mountvernon.org/research-collections/digital-encyclopedia/article/beer/ (last visited Jan. 3, 2016).

[13] Lisa Bramen, Swilling the Planters with Bumbo: When Booze Bought Elections, Smithsonian.com (Oct. 20, 2010), http://www.smithsonianmag.com/arts-culture/swilling-the-planters-with-bumbo-when-booze-bought-elections-102758236/?no-ist.

[14] Id.

[15] Trevor Potter & Bryson B. Morgan, The History of Undisclosed Spending in U.S. Elections & How 2012 Became the “Dark Money” Election, 27 Notre Dame J.L. Ethics & Pub. Pol’y 383, 400 (2013).

[16] Id.

[17] Id.

[18] Id. at 385-86.

[19] Id. at 386.

[20] Id.

[21] See generally M. R. Werner & John Starr, Teapot Dome (1959).

[22] Potter & Morgan, supra note 15, at 404-05.

[23] Id. at 405.

[24] Id. at 411-12 (noting that campaign spending nearly doubled between 1956 and 1968 from $155 million to nearly $300 million).

[25] Id. at 412.

[26] See id.

[27] Id. at 412-13.

[28] Leon Friedman & William F. Levantrosser, Richard M. Nixon: Politician, President, Administrator 301 (1991).

[29] See id. at 414.

[30] Id.

[31] Buckley v. Valeo, 424 U.S. 1 (1976).

[32] Id. at 27.

[33] Id. at 143.

[34] Id. at 44 n.52.

[35] Potter & Morgan, supra note 15, at 428.

[36] Commentary: The Campaign Finance Page, The Free Expression Policy Project, http://www.fepproject.org/commentaries/campaignfinance.html#three (last updated Jan. 22,2010).

[37] Id.

[38] Id.

[39] See Buckley v. Valeo, 424 U.S. 1, 44 (1976).

[40] 52 U.S.C. § 30104(f)(1)-(2) (West, Westlaw current through P.L. 114-93 (excluding P.L. 114-74 and 114-92) approved Nov. 25, 2015).

[41] 52 U.S.C. § 30104(f)(A)(i)(I)-(III) (West, Westlaw current through P.L. 114-93 (excluding P.L. 114-74 and 114-92) approved Nov. 25, 2015).

[42] 52 U.S.C. § 30104(f)(3)(A)(ii) (West, Westlaw current through P.L. 114-93 (excluding P.L. 114-74 and 114-92) approved Nov. 25, 2015).

[43] Commentary: The Campaign Finance Page, supra note 36.

[44] Id.

[45] Id.

[46] Id.

[47] Id.

[48] McConnell v. FEC, 540 U.S. 93, 110, 196 (2003) (upholding BCRA § 201); see also id. at 321 (Kennedy, J., joined by Rehnquist, C.J. and Scalia, J.) (voting to uphold § 201).

[49] Id. at 104.

[50] Id.

[51] Id. at 193.

[52] See James Bopp, Jr. & Richard E. Coleson, The First Amendment is Still Not a Loophole Examining McConnell‘s Exception to Buckley‘s General Rule Protecting Issue Advocacy, 31 N. Ky. L. Rev. 289, 325 (2004).

[53] See FEC v. Wis. Right to Life, Inc. 551 U.S. 449, 449-50 (2007).

[54] William Branigin, Fred Barbash & Daniela Deane, Supreme Court Justice O’Connor Resigns, Wash. Post (July 1, 2005, 7:11 PM) http://www.washingtonpost.com/wp-dyn/content/article/2005/07/01/AR2005070100653.html.

[55] David Stout, Alito Is Sworn in After 58-42 Vote to Confirm Him, N.Y. Times (Jan. 31, 2006) http://www.nytimes.com/2006/01/31/politics/politicsspecial1/31cnd-alito.html?_r=0.

[56] Citizens United v. FEC, 558 U.S. 310, 312, 317 (2010).

[57] Id. at 909-10.

[58] Ian Vandewalker & Eric Petry, Election Spending 2014: Outside Spending in Senate Races Since Citizens United, Brennan Ctr. For Justice (Jan. 13, 2015), http://www.brennancenter.org/publication/election-spending-2014-outside-spending-senate-races-citizens-united.

[59] Id.

[60] Id.

[61] Am. Tradition P’ship, Inc. v. Bullock, 132 S. Ct. 2490, 2491 (2012).

[62] Paul Gronke, Early Voting Reforms and American Elections, 17 Wm. & Mary Bill Rts. J. 423, 432 (2008).

[63] Id.

[64] Id.

[65] Id.

[66] Id.

[67] Id. at 434.

[68] See id.

[69] Ky. Const. § 148.

[70] Id.

[71] Ky. Rev. Stat. Ann. § 118.035(2) (West, Westlaw current through the end of the 2015 regular session).

[72] Ky. Rev. Stat. Ann. § 118.035(1) (West, Westlaw current through the end of the 2015 regular session).

[73] Badger, Emily, Why Early Voting Is About So Much More Than Convenience, Wash. Post (Sept. 30, 2014), http://www.washingtonpost.com/blogs/wonkblog/wp/2014/09/30/why-early-voting-is-about-so-much-more-than-convenience/.

[74] Id.

[75] Nat’l Conference of State Legislatures, Absentee and Early Voting, (Feb. 11, 2015), http://www.ncsl.org/research/elections-and-campaigns/absentee-and-early-voting.aspx.

[76] Obama for America v. Husted, 697 F.3d 423, 429-30 (2012).

[77] Id. at 425.

[78] Id.

[79] Id.

[80] Id. at 427.

[81] Id. at 426.

[82] Id. at 423.

[83] Id. at 425.

[84] Id. at 426.

[85] Id.

[86] Id. at 426-27.

[87] Id.

[88] Id.

[89] Id. at 427.

[90] See id. at 428-37.

[91] Id. at 428 (quoting Harper v. Va. State Bd. of Elections, 383 U.S. 663, 670 (1966); League of Women Voters v. Brunner, 548 F.3d 463, 477 (6th Cir. 2008)).

[92] Id. at 429 (citing McDonald v. Bd. of Election Comm’rs, 394 U.S. 802, 807-09 (1969); quoting Burdick v. Takushi, 504 U.S. 428, 434 (1992)).

[93] Id.at 429-30.

[94] Id. at 429 (citing McDonald, 394 U.S. at 807-09).

[95] Id. (quoting Burdick, 504 U.S. at 434).

[96] Id.; Anderson v. Celebrezze, 460 U.S. 780 (1983); Burdick, 504 U.S. at 428-50.

[97] Obama for America, 697 F.3d at 429 (quoting Burdick, 504 U.S. at 434).

[98] Id. at 430.

[99] Id. (citing Hunter v. Hamilton Cnty. Bd. of Elections, 635 F.3d 219, (6th Cir. 2011)).

[100] Id.; McDonald, 394 U.S. at 803.

[101] Obama for America, 697 F.3d at 431 (citing McDonald, 394 U.S. at 807).

[102] Id. at 431 (quoting Citizens for Legislative Choice v. Miller, 144 F.3d 916, 921 (6th Cir. 1998)).

[103] Id.

[104] Id.

[105] Id. at 431-32.

[106] Id. at 432.

[107] Id.

[108] Id. at 434

[109] Id. at 433.

[110] See id. at 433.

[111] Id. at 434.

[112] Id. at 435.

[113] Id. at 434.

[114] Id.

[115] Id. at 435.

[116] Id.

[117] See id.

[118] The Kentucky legislature has already attempted to create separate classes of voters. Ky. Rev. Stat. Ann. § 117.088 (West, Westlaw current through 2015 regular session). This statute allows cities of a certain size to authorize in-person early voting for blind and visually impaired voters. While the existence of this statute likely does not create an affirmative duty for the legislature to enact early voting for everyone, it is likely that the statute is unconstitutional under Obama for America.

[119] See Michael Cooper, Fact-Checkers Howl, but Campaigns Seem Attached to Dishonest Ads, N.Y. Times, Sept. 1, 2012, at A14, http://www.nytimes.com/2012/09/01/us/politics/fact-checkers-howl-but-both-sides-cling-to-false-ads.html?_r=0.

[120] Id.

[121] Id.

[122] Id.

[123] Id.

[124] Bill Adaire, PolitiFact Wins Pulitzer, PolitiFact.com (Apr. 20, 2009, 6:29 PM), http://www.politifact.com/truth-o-meter/article/2009/apr/20/politifact-wins-pulitzer/.

[125] Id.

[126] PunditFact, PolitiFact.com, http://www.politifact.com/punditfact/article/ (last updated Nov. 15, 2015).

[127] Amy Gahran, Debates, Facts and Live Tweeting: How Politifact and NPR Do It, Poynter (Oct. 8, 2008, 2:10 PM) http://www.poynter.org/news/91955/debates-facts-and-live-tweeting-how-politifact-and-npr-do-it/.

[128] Id.

[129] Whitney v. California, 274 U.S. 357, 377 (1927) (Brandeis, J., concurring).

[130] E. Ill. Univ., Presidential Campaigns: Packaging the Presidents, http://www.eiu.edu/eiutps/campaigns.php (last visited Mar. 22, 2015).

[131] Rickert v. State Pub. Disclosure Comm’n, 168 P.3d 826, 831-32 (Wash. 2007).