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Edward B. Foley
Free & Fair is a collection of writings by Edward B. Foley, one of the nation's preeminent experts on election law.

Weekly Comment

Issue 3 is a Big Mistake

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November 1, 2005

Issue 3 is the Ohio ballot measure that concerns campaign finance. It has two major defects. First, it would put specific rules concerning campaign contributions into the state's constitution, including specific dollar amounts on contribution limits (for example, $1,000 per person to General Assembly candidates). Second, it would upset the traditional parity between corporations and labor unions in campaign finance regulation, by creating a new pro-labor device called a "small donor action committee."

The details of campaign finance regulation, like the details of tax law, do not belong in a state's constitution. The main reason is that these kinds of rules need to be updated periodically, and it is too cumbersome to update them by means of constitutional amendments. The voters of the state should not have to review each change in these very technical rules - that's a job for government officials - but Issue 3 would impose that inappropriate obligation on the voters.

Reform Ohio Now, the group that put Issue 3 on the ballot, is understandably upset that the General Assembly last December raised the limit on contributions from individuals to candidates from $2,500 to $10,000. That fourfold increase was excessive and unsubstantiated by any evidence of a need to do so. Nonetheless, in any democracy, sometimes the legislature rejects your position. That doesn't mean you try to overrule the legislature by putting your position into the state's constitution. Instead, you wait and fight it out again in the legislature a few years down the road. This point is just as true of laws that govern the operation of the electoral process as laws on substantive matters like health care, employment practices, or criminal justice.

Moreover, if Reform Ohio Now could not wait for the General Assembly to fix the mistake it made last December, it could have put on the ballot a different kind of initiative, which would have overturned the legislature's statutory law without amending the Constitution. To be sure, this other kind of initiative could be repealed by a new vote of the General Assembly. But it seems unlikely the people's elected representatives would be so directly hostile to the will of the people, especially after the additional corruption scandals that have surfaced in this state since last December. And if unforeseen problems surface after the implementation of Reform Ohio Now's proposed rules, then it is important that the General Assembly have the authority to undertake a course correction.

Issue 3, however, is flawed not merely for trying to clutter Ohio's constitution with campaign finance rules. One of the rules it would impose is objectionable whether included in the constitution or, instead, adopted as statutory law subject to revision by the General Assembly.

This problematic provision sounds innocuous enough at first glance. It would establish a new kind of campaign finance entity called a "small donor action committee." These small donor funds would be entitled to receive up to $50 per person. In turn, these funds would be permitted to give up to $10,000 per candidate.

In theory, these small donor funds might not be a bad idea. There is nothing inherently wrong with a group of likeminded citizens pooling their limited resources in order to express their collective voice on which candidate should prevail in an election. Citizens of all different stripes - pro-choice, pro-life, for gun control, against gun control, and so forth - could take advantage of this new institutional form.

The problem, however, with the particular way that Issue 3 would implement this new institutional form is that it would permit existing membership organizations, including labor unions, to divert up to $50 of annual dues per member into one of these small donor funds. The members themselves would not be required to approve each diversion. Members would be required to give a one-time assent to the ongoing use of their dues in this way, an assent which they would be permitted to revoke, but this kind of "blank check" authority is hardly the same as a requirement that members specifically authorize each use of their dues for campaign contributions.

This diversion potential would be questionable enough in the case of most membership organizations. When citizens pay dues to the World Wildlife Federation, because they share that group's environmental goals, they don't necessarily want their dues to be contributed to a particular politician, just because the group believes that this candidate is more environment-friendly than the opponent. The individual member might believe that, notwithstanding the candidate's better record on the environment, other factors (like views on health care reform and foreign policy) make the opponent preferable overall.

But the diversion potential is especially troublesome in the case of labor unions. Ever since at least 1947, when Congress adopted the Taft-Hartley Act, the prevailing view in the field of campaign finance law has been that both labor unions and business corporations should be treated equally: their treasuries should be off-limits for the purpose of campaign contributions. The reason for this parity stems from the economic nature of these entities. Both business corporations and labor unions exist to promote the economic agendas of the individuals they represent: shareholders in the case of corporations, and members in the case of unions. The money belonging to these entities, whether shareholder investments or union dues, which have been given to advance economic interests, should not be used to support or oppose particular political candidates. The danger of their economic agendas corrupting the political process is too great to permit this diversion of funds. If corporate shareholders or union members wish to contribute money to political candidates, they need to do so with money raised and kept separately from their corporate investments and union dues.

Moreover, business corporations and labor unions are in a kind of economic warfare and have been for over a century. For most of this time, right up to the recent enactment of the federal McCain-Feingold campaign reform law, it has been perceived an unfair advantage if either business corporations or labor unions (but not both) are entitled to use their general-treasury funds to contribute to political campaigns. Such a disequilibrium would allow one side, but not the other, to divert some of its economic resources into political campaigns, in the expectation of securing friends in the legislature who would enact laws that give that side an upper hand in their economic warfare.

Yet this disequilibrium is precisely what would occur if Issue 3 were adopted. It would permit labor unions to divert $50 for each dues-paying member into a fund that it could use to contribute to political candidates (up to $10,000 per candidate), yet it would not permit a business corporation to divert $50 for each shareholder to a similar fund. This disequilibrium is inconsistent with the equal treatment of corporations and unions that has prevailed from Taft-Hartley through McCain-Feingold and was affirmed by the U.S. Supreme Court only two years ago in McConnell v. Federal Election Commission .

This unequal treatment of unions and corporations is reason enough to oppose Issue 3. But the fact that Issue 3, if adopted, would imbed this unequal treatment into Ohio's constitution makes it especially objectionable. Even if this disequilibrium is soon recognized to be a mistake, it cannot be easily fixed. Instead, another ballot measure - with all its attendant costs - will be necessary.

To avoid this mistake in the first place, and to avoid the general problem of putting specific campaign finance rules in the constitution, Ohio voters should reject Issue 3, thereby returning the topic of campaign finance to the General Assembly, where it belongs.