Randall Shepard: Let’s take campaign finance reform out of court’s hands

The country has largely come to terms with its recent elections, but there’s still litigation about the methods by which they were carried out. There is one new idea about improving that system. It fits well with Gov. Mike Braun’s inaugural suggestion that the rules by which we govern ourselves could use some return to local decision making.

The methods by which we conduct and finance elections have changed significantly since my first experiences. When I worked in a campaign as a college student, virtually every element of a campaign was financed by individual contributions from people in the congressional district. There were only modest contributions from political action committees.

These processes were simple, and they produced little litigation. It is so very different today. A federal statute usually referred to as McCain/Feingold and a Supreme Court decision in Citizens United v. Federal Election Commission have moved us in a very different direction.

Because today’s candidate committees might receive only very limited support from individual contributors, much of today’s campaigning is financed by political action committees, called PACs. While the source of candidate commercials we see is pretty clear (“My name is John Smith, and I approved this ad”), it’s not nearly as clear who organized a given PAC and who’s paying the bills.

One difference these days is that many of the directives about organizations and financing come not from statutes but rather from lawsuits. Participants on both sides of the aisle employ litigation, often arguing that they have the right under the First Amendment to do this or that—or that their opponents do not. Thus, the rules are often formulated by decisions issued by different courts in different states or federal circuits. With the advent of district court judges issuing decisions declared to be regional or national in application, a good number of rules are springing from a single judge’s desk far away from the immediate cause of the litigation. This means that the law is sometimes different from court to court or state to state and fashioned around the particulars of a given lawsuit. We could do better.

A group of reformers named American Promise has been urging a constitutional amendment that would strengthen the role of Congress and the states in regulating election methods and finance. They are both empowered to do so today but often find their decisions set aside by individual rulings citing varying First Amendment interpretations.

The proposed amendment would also afford both Congress and state legislatures greater ability to adopt election rules that are the product of public debate on broad-based grounds.

A draft of this amendment declares that Congress and the states have the power of “reasonably regulating and limiting contributions and spending” in campaigns. It reemphasizes something most people believe: that the rights of Americans include such things as free speech and representative government.

It would also make it more possible than it has recently been for the people’s elected representatives to examine possible reforms to elections, and it would make it clear during lawsuits that free elections can be defined by Congress and the states.

One way to amend the U.S. Constitution is for Congress to call a convention authorized to devise amendments on any part of the whole Constitution. This has never happened, thankfully.

The other method is for Congress to propose a specific amendment and send it to the states for possible ratification. It’s the method that has always been employed. In recent decades, Indiana has been a leader on such questions (thanks, Birch Bayh).

American Promise urges that state legislatures send to Congress resolutions urging that such an amendment be drafted and proposed to the states. Some 22 states have already done this.

Indiana would do well to join them.•

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Shepard, formerly Indiana chief justice, now serves as senior judge and teaches law.