Model Clean Money Bill

Public Campaign

Annotated Model Legislation for
CLEAN MONEY/CLEAN ELECTIONS REFORM

for use in drafting state and federal campaign finance legislation to create a voluntary system of full public financing for primary and general election campaigns and to address related issues including "soft" money and independent expenditures (July 2001)

TABLE OF CONTENTS

INTRODUCTION page 5

OVERVIEW 9

SAMPLE TIMELINE 11

TITLE I: CLEAN MONEY/CLEAN ELECTIONS REFORM 12

Section 101: Findings and Declarations

Section 102: Definitions

TITLE II: ELIGIBILITY 20

Section 103: Eligibility for Campaign Funding for Party Candidates

Section 104: Eligibility for Campaign Funding for Independent Candidates

Section 105: Transition Rule for Current Election Cycle

TITLE III: OBLIGATIONS OF PARTICIPATING CANDIDATES 25

Section 106: Continuing Obligation to Comply

Section 107: Contributions and Expenditures

Section 108: Campaign Accounts for Participating Candidates

Section 109: Use of Clean Money/Clean Elections Funds

Section 110: Use of Personal Funds

Section 111: Seed Money

Section 112: Participation in Debates

Section 113: Campaign Advertisements

Section 114: Certification

TITLE IV: CLEAN MONEY/CLEAN ELECTIONS BENEFITS AND OTHER PROVISIONS 34

Section 115: Benefits Provided to Candidates Eligible to Receive Clean Money/Clean

Elections Funding

Section 116: Schedule of Payments

Section 117: Determination of Clean Money/Clean Election Funding

Amounts

Section 118: Expenditures Made with Clean Money/Clean Elections Funds

TITLE V: PROVISIONS FOR NON-PARTICIPATING CANDIDATES 40

Section 119: Campaign Accounts for Non-Participating Candidates

Section 120: Disclosure of Excess Spending by Non-Participating Candidates

Section 121: Campaign Advertisements

TITLE VI: INDEPENDENT EXPENDITURES 44

Section 122: Definition of Independent Expenditures

Section 123: Disclosure of, and Additional Clean Money/Clean Elections Funding to

Respond to, Independent Expenditures

TITLE VII: VOTER INFORMATION AND CAMPAIGN COMMUNICATIONS 50

Section 124: Voter Information Commission

Section 125: Broadcast Debates

Section 126: Free Broadcast Media Advertising

Section 127: Paid Broadcast Media Advertising

Section 128: Limit on Use of Franking Privilege

Section 129: Ballot Label

TITLE VIII: CLEAN MONEY/CLEAN ELECTIONS FUND 55

Section 130: Nature and Purpose of Fund

Section 131: Sources of Revenue for Fund

Section 132: Administration and Dispersal of Money from Fund

TITLE IX: POLITICAL PARTIES 59

Section 133: Political Party Contributions and Expenditures

Section 134: Soft Money

TITLE X: ADMINISTRATION AND ENFORCEMENT 63

Section 135: Election Commission Members

Section 136: Election Commission Powers and Procedures

Section 137: Other Provisions

Section 138: Commission Reports

Section 139: Rules, Regulations, and Procedures

TITLE XI: MISUSES, EXCESSES, VIOLATIONS 65

Section 140: Repayment of Excess Expenditures

Section 141: Penalties

TITLE XII: MISCELLANEOUS 67

Section 142: Severability

Section 143: Effective Date

INTRODUCTION

to the July 2001 Edition

Growing numbers of Americans are becoming aware that our system of financing election campaigns is broken beyond repair and needs to be replaced by an entirely new system. They understand that real democracy is impossible as long as the people we want to be our elected representatives in government - our public servants - must raise or possess large sums of private money. Common sense tells them that genuine political equality and public accountability - essential hallmarks of democracy - cannot exist within a system in which money counts more than votes
Numerous surveys show that a majority of the public wants campaigns to be financed in a way that:

· Eliminates the perceived and real conflicts of interest caused by the private financing of public officials' campaigns
· Allows qualified individuals to mount competitive campaigns regardless of their access to large contributors or their economic status
· Limits the ever-increasing costs of running for public office
· Frees candidates and elected officials from the burden of continuous fundraising. And,

· Shortens the length of campaigns.

The model legislation that follows is in the form of a "working document" that is meant to be periodically revised and updated. Its purpose is to serve as a resource for reform-minded citizens and legislators who are trying to craft campaign finance legislation that meets the objectives enumerated above - who are asking: "What might a campaign finance system look like that did not require candidates to raise, or have, large sums of private money in order to run for and win public office?" It is designed to address the most important issues and questions associated with this new "Clean Money/Clean Elections" system, including "soft" money and independent expenditures (including electioneering communications masquerading as "issue advertisements"). The frequent annotations in the text - italicized "Comments" - explain the purpose of particular provisions, discuss their strengths and weaknesses, and often provide alternative provisions that might be preferable.

Regarding the authorship and origins of the Model Bill, it must be gratefully acknowledged that most of the provisions incorporated in it have been borrowed from or based on the hard and creative work of others - especially the 1992 proposal for "Democratically Financed Elections" drafted by the Working Group on Electoral Democracy; the "Clean Elections" legislation drafted by citizen groups and passed by ballot initiative in Maine (1996) and Arizona (1998); similar legislation drafted by citizens and legislators in other states; and the Wellstone-Kerry "Clean Money, Clean Elections Act" that was first introduced in the U.S. Senate in June of 1997. Nevertheless, Public Campaign takes sole responsibility for the particular form and substance of the model legislation contained herein
This Model Bill is only a starting point, however. Before it can be transformed into actual legislation, it will need to be adapted and made relevant to a particular state, municipality, or other electoral arena. In this process, many of the implementation details will have to be worked out - or, in the case of purely administrative details, left to the relevant campaign finance agency to be worked out after the bill has passed. And the final product will, of course, have to be put into appropriate legislative language
Needless to say, writing legislation of this scope and depth is not for the short-winded. It requires considerable time, patience, and perseverance. It also requires consultation with experienced electoral practitioners who understand current election law as well as the political lay of the land; legal experts well-versed in the constitutional questions associated with campaign finance law; persons who have experience administering elections and enforcing election laws; and a range of ordinary citizens who can offer common-sense advice about what's fair and what's workable. However, while listening to advice from others, it is essential that drafters of Clean Money/Clean Elections legislation not let the details of the proposed law obscure or undermine the broader principles and objectives involved.

All of this is to say that the process is not quick and easy. If it were, the enterprise probably wouldn't be worth doing. We believe that creating a viable alternative to the current system of privately financed elections is not only worth doing - it's an urgent task
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In broad outline, this July 2001 edition of the Model Bill is largely the same as the two previous editions (July 1997 and December 1997), yet it contains a number of changes based on new developments in campaign finance law and practice, as well as reactions to those earlier editions. Some of the changes involve deletions of provisions or requirements whose constitutionality or practical feasibility seemed questionable and whose absence doesn't weaken the overall integrity of the legislation.

In general, our rule of thumb in drafting and revising the Model Bill has been this: if a particular provision raises serious constitutional questions (in most cases having to do with free speech), if it would be hard to implement in a way that is both effective and fair, or if it's not absolutely necessary to achieve the primary objectives of Clean Money/Clean Elections reform, then leave it out. The shorter and simpler the bill, the better. We have also found it necessary to remind ourselves that there are other important electoral reforms that can, and ought to, be addressed by separate legislation - either before or after the passage of a Clean Money/Clean Elections bill - and, even more importantly, that no matter how hard we try we will never be able to prevent every possible abuse or create a system of absolute equality.

Do the specifics of this model legislation represent the only way to achieve the objectives cited earlier? Probably not. They simply represent the best we are aware of at this time. While offering this particular model as an effective means of creating a fair and democratic system of financing election campaigns, we readily acknowledge that it is not perfect and we invite others to improve upon it.

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Finally, it is important to take note of at least two very significant developments related to Clean Money/Clean Elections reform that have taken place since the previous edition of the Model Bill was released in December 1997. First, in November 1999, Chief Judge D. Brock Hornby of the Federal District Court in Portland, Maine, issued a sweeping ruling upholding the constitutionality of all aspects of the Maine Clean Elections Act, including the Act's provisions that provide matching funds to Clean Elections candidates who are outspent by non-participating candidates or targeted by independent expenditures. The ruling was in response to a suit brought by the Maine Civil Liberties Union and the National Right to Life Committee. Three months later, the U.S. Court of Appeals for the First Circuit upheld Judge Hornby's decision on all counts. These rulings should dispel any apprehensions about whether or not Clean Money/Clean Elections legislation can pass constitutional muster.

A second development, of perhaps even greater significance, is the successful implementation of the voter-approved Clean Elections laws in both Arizona and Maine during the 1999-2000 election cycle. Now, for the first time, when asked whether this kind of system has ever worked anywhere else, proponents of Clean Money/Clean Elections reform can confidently answer in the affirmative. In both Arizona and Maine, an impressive number of candidates participated in this first test of the new laws, despite all the fears and uncertainties that are bound to be associated with any major, first-time departure from politics-as-usual. Many incumbents participated as well as challengers, many Republicans as well as Democrats. People who had previously felt unable to run for office because of the fundraising barrier became candidates for the first time. Contrary to some predictions, these new systems did not open the door to "fringe candidates" lacking public support - although, on the other hand, in Maine it did allow serious third-party candidates to mount competitive campaigns. A majority of the Clean Elections candidates running in the general elections won their races. And both the voters and the Clean Elections candidates themselves gave the new systems high approval ratings.

In short, individuals and groups interested in drafting and promoting Clean Money/Clean Elections legislation now have not only a Model Bill but also two excellent working models to guide them.

Public Campaign

July 2001

NOTE: In drafting Clean Money/Clean Elections legislation, readers may also want to refer to Public Campaign's "Clean Money/Clean Elections Comparisons: An Inventory of Clean Money/Clean Elections Legislation" (August 2001 edition). This publication summarizes and compares the key provisions of various state bills or laws, as well as the congressional Clean Money/Clean Elections bills and this Model Bill. Also available from Public Campaign, in electronic form, are the full-length bills and laws themselves, including those now in effect in Arizona and Maine.

OVERVIEW

The purpose of Clean Money/Clean Elections (CM/CE) legislation is to provide a clear, voluntary alternative to the current system of raising and spending private money to finance candidates' election campaigns - and, at the same time, to address potential problems and loopholes (e.g., "soft" money and independent expenditures) that could weaken or undermine CM/CE. Unlike other campaign finance measures, the primary thrust of Clean Money/Clean Elections reform is not to alter or reform the current system; it is to offer a whole new system. Under a Clean Money/Clean Elections system, candidates can choose to continue relying upon private financing, but CM/CE provides strong, though non-coercive, incentives for them to participate in the new system
The principal incentive is that CM/CE allows qualified candidates to mount competitive campaigns for public office without resorting to the kind of private fundraising that can consume enormous amounts of time, compromise elected officials' independence, and undermine the public's confidence in its elected officials.

CM/CE offers eligible candidates who can demonstrate a threshold level of public support a set amount of public funding (and, for federal elections, free and discount television and radio time) for both primary and general election campaigns. Public support is demonstrated by raising a large number of $5 qualifying contributions from registered voters within the candidate's election district. Candidates receiving Clean Money/Clean Elections funding must agree not to raise or spend any private money (including their own), other than qualifying contributions and a very modest amount of seed money prior to the beginning of the primary election period. Once the campaign period begins, their spending is limited to the amount of Clean Money/Clean Elections funding they receive (although the political parties they represent are allowed to spend a relatively small amount on their behalf). If participating candidates are outspent by non-participating opponents or targeted by independent expenditures, they may receive additional, matching funds with which to respond. To maintain a financially level playing field, CM/CE also broadens the definition of "independent expenditure" so as to address the question of electioneering communications masquerading as "issue ads," and it bans "soft" money
A possible addition to CM/CE legislation that is not covered in this Model Bill concerns Instant Runoff Voting (IRV). With the availability of full public financing for gubernatorial and other executive offices increasing the chances of three or more candidates running in those races in the general election (e.g., a Republican, a Democracy, and an Independent and/or third party candidate), IRV would ensure that the winner received a majority, not just a plurality, of the votes cast - without having to hold, and pay for, a separate runoff election. It may be that incorporating an IRV provision in initial CM/CE legislation, as opposed to promoting it as a separate bill, would add an unnecessary complication and provide an additional target for opponents. Either way, however, the IRV option should be kept in mind by CM/CE advocates and bill drafters.

The cost of implementing such a system for Congressional elections is estimated to be less than a billion dollars per year out of a federal budget of close to two trillion dollars (that's about a half of a 10th of a percent of the federal budget: 0.05%). That amounts to less than $10 per-taxpayer, per-year. Revenue for the Clean Money/Clean Elections Fund could come from some combination of these and other sources: the qualifying contributions collected by participating candidates, an income tax check-off system (similar to the one in place for presidential elections), a highly publicized program of voluntary contributions, and direct government appropriations to make up the balance of what is needed. The Clean Money/Clean Elections program could be offset (thus requiring no tax increase) by the elimination of unnecessary tax exemptions and other subsidies previously granted to major campaign contributors. It is estimated that such subsidies currently cost taxpayers far more than what it would cost to provide full public financing under a Clean Money/Clean Elections system.*

Clean Money/Clean Elections Act*

TITLE I: CLEAN MONEY/CLEAN ELECTIONS REFORM

Section 101: Findings and Declarations

Comment: These findings and declarations are not mere window dressing. In addition to reminding the reader what the problems with the current system and the objectives of this reform are, they can help inoculate the proposed legislation against court challenges - especially with regard to the question of free speech (i.e., the First Amendment of the U.S. Constitution), which has been used by the courts to strike down a number of citizen-initiated campaign finance reforms in recent years. For example, the following paragraphs include specific language taken from U.S. Supreme Court cases, including the 1976 Buckley v. Valeo case. (This and other recommendations come from a paper prepared by the National Voting Rights Institute that more fully discusses the free-speech implications of CM/CE and how to write CM/CE legislation accordingly. Copies of the paper are available from Public Campaign. )

While this section may seem unnecessarily long and some of the paragraphs in it redundant or overlapping, this is the one section of the bill where it makes sense to err on the side of redundancy. The more that is included in these findings, the easier it will be to establish the intent of the bill's drafters, which is essential in defending this type of legislation in court.

A) The [state legislature, Congress] finds and declares that the current system of privately financed campaigns for election to [statewide and legislative offices, federal office] undermines democracy in the [state, United States] in the following principal ways:

Comment: In order to make it easier for CMCR legislation to be defended in court after it is passed (assuming that it, like most campaign finance reform legislation, will face a legal challenge), the paragraphs under Section 101-A should include, to the extent possible, specific facts that are unique to the circumstances covered by the legislation being drafted (a particular state's elections, or federal elections). Such facts should be related to the points covered in paragraphs 1 to 12 below - for example comparative spending figures for challengers and incumbents, including what each spent on media (as part of paragraph 3); polling data related to the perception of corruption (as part of paragraph 5); increase in overall spending over past three or four elections cycles (as part of paragraph 9).

1) It violates the democratic principle of "one person, one vote" and diminishes the meaning of the right to vote by allowing large contributions to have a deleterious influence on the political process
Comment: This paragraph incorporates language from the Buckley case, in which the U.S. Supreme Court found that the state had a compelling interest "to reduce the deleterious effect of large contributions on our political process." Similar wording is used in paragraph B) 1) below
2) It violates the rights of all citizens to equal and meaningful participation in the democratic process
3) It diminishes the free-speech rights of non-wealthy voters and candidates whose voices are drowned out by those who can afford to monopolize the arena of paid political communications
Comment: "Free-speech rights" refers to the First Amendment of the U.S. Constitution. However, if state legislation is being written and there are free-speech provisions in the state constitution that are as strong as or stronger than those in the federal Constitution, a specific reference to the state, as well as federal, constitution should be included here
4) It undermines the First Amendment right of voters and candidates to be heard in the political process; it undermines the First Amendment right of voters to hear all candidates' speech; and it undermines the core First Amendment value of open and robust debate in the political process
5) It fuels the public perception of corruption and undermines public confidence in the democratic process and democratic institutions
6) It diminishes elected officials' accountability to their constituents by compelling them to be disproportionately accountable to the major contributors who finance their election campaigns
7) It creates a danger of actual corruption by encouraging elected officials to take money from private interests that are directly affected by governmental actions
8) It costs taxpayers [millions/billions] of dollars for the legislative and regulatory decisions made by elected officials on behalf major campaign contributors
9) It drives up the cost of election campaigns, making it difficult for qualified candidates without access to large contributors or personal fortunes to mount competitive campaigns
10) It disadvantages challengers, because large campaign contributors tend to give their money to incumbents, thus causing elections to be less competitive
11) It inhibits communication with the electorate by candidates without access to large sums of campaign money
Comment: This paragraph incorporates language from the Buckley case, in which the U.S. Supreme Court found that the state had a compelling interest "to facilitate communication by candidates with the electorate." Similar wording is used in paragraph B) 11) below
12) It burdens candidates with the incessant rigors of fundraising and thus decreases the time available to carry out their public responsibilities
Comment: This paragraph incorporates language from the Buckley case, in which the U.S. Supreme Court found that the state had a compelling interest "to free candidates from the rigors of fundraising." Similar wording is used in paragraph B) 12) below
B) The [state legislature, Congress] finds and declares that providing a voluntary Clean Money/Clean Elections campaign finance system for all primary, general, and runoff elections would enhance democracy in [state, the United States] in the following principal ways:

1) It would help eliminate the deleterious influence of large contributions on the political process, remove access to wealth as a major determinant of a citizen's influence within the political process, and restore meaning to the principle of "one person, one vote."

2) It would help restore the rights of all citizens to equal and meaningful participation in the democratic process
3) It would restore the free-speech rights of non-wealthy candidates and voters by providing candidates with the equal resources with which to communicate with the voters
4) It would help restore the First Amendment right of voters and candidates to be heard in the political process; it would help restore the First Amendment right of voters to hear all candidates' speech; and it would help restore the core First Amendment value of open and robust debate in the political process
5) It would diminish the public perception of corruption and strengthen public confidence in the democratic process and democratic institutions
6) It would increase the accountability of elected officials to the constituents who elect them
7) It would eliminate the danger of actual corruption caused by the private financing of the election campaigns of public officials, thus restoring public confidence in the fairness of the electoral and legislative processes
8) It would save taxpayers [millions, billions] of dollars now wasted due to legislative and regulatory decisions made on behalf of major campaign contributors
9) It would halt and reverse the escalating cost of elections
10) It would create a more level playing field for incumbents and challengers, create genuine opportunities for qualified [residents of state, Americans] to run for [statewide or legislative, federal] office, and encourage more competitive elections
11) It would facilitate communication with the electorate by candidates, regardless of their access to large sums of campaign money
12) It would free candidates from the incessant rigors of raising money, and allow office-holders more time to carry out their official duties
C) The [state legislature, Congress] further finds and declares that the unique factual circumstances in [the state of ________, the United States] require that the provisions of this Act be enacted to promote the compelling state interests listed in part B) above.

Section 102: Definitions

A) The "Exploratory Period" is the period beginning the day following the previous general election for that office and ending on the last day of the Qualifying Period. This is the period during which candidates who wish to become eligible for Clean Money/Clean Elections funding for the next elections are permitted to raise and spend a limited amount of private Seed Money, in contributions of up to $100 per individual, for the purpose of "testing the waters" and fulfilling the Clean Money/Clean Elections eligibility requirements. The Exploratory Period begins before, but extends to the end of, the Qualifying Period
Comment: There is much public concern about the length of campaigns, by which most people mean the period during which they are bombarded with campaign ads (primarily on TV and radio). To prevent the Exploratory Period from simply giving candidates additional time for high-visibility campaigning, a low limit must be set on the aggregate amount of Seed Money a Participating Candidate can raise and spend.

B) The "Qualifying Period" is the period during which candidates are permitted to collect Qualifying Contributions in order to qualify for Clean Money/Clean Elections funding. It begins [90] days before the beginning of the Primary Election Campaign Period and ends [30] days before the day of the Primary Election.

Comment: The length of time between the beginning of the Qualifying Period and the beginning of the Primary Election Campaign Period could vary according to the size of the election district. For example, for state legislators it might be 60 days, and for a statewide office 120 days or longer. While this period should not be too long, there must be enough time for challengers to mount a grassroots campaign to collect the required number of Qualifying Contributions.

By making the Qualifying Period extend past the beginning of the 90-day Primary Election Campaign Period - to 30 days before the date of the Primary Election - gives late-entering primary candidates a chance to qualify. Alternatively, the Qualifying Period could be defined as ending just prior to the beginning of the Primary Election Campaign Period, which would force candidates to decide whether they want to run as Participating Candidates before the Primary Period begins
Whereas Maine's deadline for turning in Qualifying Contributions under the Maine Clean Elections law initially coincided with the deadline for turning in ballot access signatures, it may be moved back one month to make allowance for candidates who decide to become eligible for public funding after they have qualified to be on the ballot
C) The "Primary Election Campaign Period" is the period beginning [90] days before the Primary Election and ending on the day of the Primary Election.

D) The "General Election Campaign Period" is the period beginning the day after the Primary Election and ending on the day of the General Election
Comment: The chief obstacle to shorter campaigns in many states is the date of the Primary Election. Reformers in states whose Primary Election date is earlier than September might consider changing the date to the first Tuesday of September. With the General Election held the first Tuesday of November, this would limit the General Election Campaign Period to two months. However, in so doing it would be important to consider whether the shortened campaign period would benefit incumbents. Under a Clean Money/Clean Elections system in which challengers and incumbents have equal financial resources, a two-month General Election Campaign Period would be less likely to put challengers at a disadvantage than under the current system (in which most challengers are underfunded)
E) The "Run-off Election Campaign Period" is the period beginning the day after the primary or general election that resulted in the need for a run-off election, and ending on the day of the run-off election.

F) A "Seed Money Contribution" is a contribution of no more than $100 made by an individual adult during the Exploratory Period
Comment: The purpose of this contribution is to assist the candidates in exploring the possibility of running for office and to provide them with the early money necessary for this exploration. Section 111 sets a low cap on the total amount of Seed Money a candidate can raise and prohibits candidates from spending Seed Money during the Primary Election and General Election Periods. Allowing contributions of Seed Money from private sources prior to the Primary and General Election Campaign Periods will not compromise the integrity of the public financing system
Unlike qualifying contributions, whose purpose is to demonstrate a threshold level of public support, there is no requirement that seed money contributors be individuals who live in the candidate's district or state (i.e., who are eligible to vote for that candidate). The reason is that such a requirement could handicap candidates seeking to represent low-income districts in which $100 seed-money donations might be harder to get
The term "Seed Money Contribution" here should specifically exclude (a) payments by a membership organization for the costs of communications to its members; (b) payments by a membership organization for the purpose of facilitating the making of Qualifying Contributions; and (c) volunteer activity, including the payment of incidental expenses by volunteers.

G) A "Qualifying Contribution" is either a contribution of $5 that is received during the designated Qualifying Period by a candidate seeking to become eligible for Clean Money/Clean Elections campaign funding; or a signed affidavit of indigence, to be made available to candidates by the Election Commission, stating that the signer is unable to afford a $5 contribution. Contributors, including persons who sign affidavits of indigence, shall be legal adult residents of the electoral district or state in which the candidate is running. Five-dollar Qualifying Contributions shall be made in cash, or by personal check or money order, made out to the candidate's campaign committee. All Qualifying Contribution moneys shall be submitted by the candidate's campaign committee to the Election Committee, for deposit in the Clean Money/Clean Elections Fund
Comment: These contributions qualify a candidate to receive Clean Money/Clean Elections funding for the Primary Election. The reason for not using a signature-based requirement is that a monetary contribution, however small, is in most instances a better gauge of commitment than a signature alone. It's common knowledge that many people will sign anything but that very few people will contribute even a couple dollars to a person or project they don't support. For that reason the idea of requiring candidates who want to qualify for public funds to demonstrate that they have genuine public support by raising a significant number of $5 Qualifying Contributions has proven to be a popular feature of the Clean Money/Clean Elections concept
It is expected that in most instances, with the possible exception of very low-income communities, persons wishing to help a candidate qualify for public funding will contribute $5, an amount that is be affordable for most people. However, in keeping with the spirit of Clean Money/Clean Elections reform - the purpose of which is to remove economic status and access to money as barriers to full participation - the affidavit of indigence guarantees that anyone can participate in the Clean Money/Clean Elections qualifying process. Furthermore, a qualifying mechanism based solely on the payment of money may be problematic under the Equal Protection Clause of the Fourteenth Amendment (which was used as the basis for the U.S. Supreme Court's 1966 decision in Harper v. Virginia State Board of Elections in which a poll tax of $1.50 was declared unconstitutional)
The requirement that persons making Qualifying Contributions be legal residents but not necessarily registered voters (as was required in the previous edition of the Model Bill) parallels current federal campaign finance law under which legal residents are permitted to make campaign contributions. Because full citizenship is a requirement for becoming a registered voter, this provision requiring only legal residence rather than voter registration avoids discriminating against the many people who are permanent residents of this country but not yet citizens
The reason for allowing cash contributions as well as contributions by personal check or money order is because low-income people often do not have checking accounts, and because people who do have such accounts will not always have their checkbooks (much less $5 money orders) with them at the time a candidate is making a pitch for Qualifying Contributions. While there may seem to be a greater risk of fraud or abuse when cash is involved, this has not occurred in Arizona, where the recently implemented Clean Elections Law allows people to make Qualifying Contributions in cash. The signed statement by the contributor provides a safeguard against large-scale fraudulent Qualifying Contributions
There may be an advantage, in terms of public perception, of having checks and money orders made out to the Election Commission rather than the candidate's campaign committee. The reason we recommend that Qualifying Contribution checks and money orders be made out to the candidate's committee is because that allows the committee to write one check to the Election Commission from its campaign account, covering all the Qualifying Contribution money (including cash) they have received. If the committee sends the Election Commission individual $5 checks and money orders made out to the Commission, the task of processing each one, for every candidate seeking Clean Money/Clean Elections funding, could be unduly burdensome and time-consuming, which, in turn, could delay the issuance of public funding to the candidates.

H) An "Allowable Contribution" is a Qualifying Contribution or a Seed Money Contribution, or a limited in-kind contribution to a participating candidate from that candidate's political party as specified in Section 133 B)
Comment: This is the only private money that can be raised by a candidate seeking to become eligible for Clean Money/Clean Elections funding, and it must be raised (and, in the case of seed money contributions, spent) prior to the candidate's receipt of Clean Money/Clean Elections funding. Although the amount is small, it does enable contributors, rich and poor, to significantly help the candidates they support by providing the "early money" that candidates need to qualify for Clean Money/Clean Elections funding
I) A "Participating Candidate" is a candidate who qualifies for Clean Money/Clean Elections campaign funding. Such candidates are eligible to receive Clean Money/Clean Elections funding during Primary, General, and Runoff Election Campaign Periods
Comment: Under Maine's Clean Elections Law, participating candidates are officially labeled "Clean Elections candidates." This was challenged by the ACLU as representing an implicit government endorsement of these candidates. However, use of this label has been upheld by both the federal district court and the First Circuit Court of Appeals. Some states have used other words instead of "Clean," such as "Fair," or even more neutral terminology. Especially when trying to pass Clean Money/Clean Elections reform via the state legislature, rather than via ballot initiative, use of the word "Clean" may incur unnecessary opposition from legislators
J) A "Non-Participating Candidate" is a candidate who is on the ballot but has chosen not to apply for Clean Money/Clean Elections campaign funding, or a candidate who is on the ballot and has applied but has not satisfied the requirements for receiving Clean Money/Clean Elections funding
Comment: See comment above, under paragraph I)
K) "Excess Expenditure Amount" is the amount of money spent or obligated to be spent by a non-participating candidate in excess of the Clean Money/Clean Elections amount available to a Participating Candidate running for the same office
L) "Soft Money" is money raised by political parties that is unregulated by [state, federal] law as to source and size of contributions and that cannot be used to advocate the election or defeat of particular candidates
M) "Mass Mailings" are mailings of [200] or more identical or nearly identical pieces of mail sent by candidates or elected officials to the voters, residents, or postal box-holders within the jurisdiction candidates are seeking to represent. Such mailings, consisting of substantially identical letters, newsletters, pamphlets, brochures, or other written material, are distinct from 1) mailings made in direct response to communications from persons or groups to whom the matter is mailed, 2) mailings to federal, state, or local government officials, and 3) news releases to the communications media - all of which are exempt from this definition
N) A "Party Candidate" is a candidate who represents a political party that has been granted ballot status and holds a primary election to choose its nominee for the general election
Comment: By this definition, there is no distinction between candidates of major parties and those of minor parties. The only distinction has to do with whether the party has ballot status and holds a primary
O) An "Independent Candidate" is a candidate who does not represent a political party that has been granted ballot status and holds a primary election to choose its nominee for the general election
Comment: Candidates who represent parties that have not achieved ballot status or do not hold their own primaries must run as Independent Candidates. Unofficially, they might be seen as representing the Blue Heron Party, for example, but their official designation would be Independent.

P) "Election Commission" is the governmental agency authorized to administer and enforce the election laws
Comment: In the context of this model bill, "Election Commission" is meant to be a generic term applicable to any state or to the federal government agency or department that has responsibility for the campaign finance system. In some states, this agency is the Ethics Commission, or Office of Campaign Finance; in others it is the office of the Secretary of State.

Q) A "Person" means an individual, proprietorship, firm, partnership, joint venture, syndicate, business trust, company, corporation, limited liability company, association, committee, and any other organization or group of persons acting in concert

TITLE II: ELIGIBILITY

Comment: Note that the eligibility requirements spelled out below do not replace the ballot access requirements of each state, which prospective Participating Candidates (and all others) must also fulfill. In writing Clean Money/Clean Elections legislation at the state level, it may be useful to devise a way of merging these two requirements in order to avoid an unnecessary burden for candidates.

Section 103: Eligibility for Clean Money/Clean Elections Campaign Funding for Party Candidates

A) A Party Candidate qualifies as a Participating Candidate for the Primary Election Campaign Period -

1) If s/he files a declaration with the Election Commission that s/he has complied and will comply with all of the requirements of this legislation, including the requirement that during the Exploratory Period and the Qualifying Period the candidate not accept or spend private contributions from any source other than Seed Money Contributions and Clean Money/Clean Elections Qualifying Contributions (unless the provisions of Section 105 apply); and

2) If s/he meets the following Qualifying Contribution requirements before the close of the Qualifying Period:

a) A Party Candidate must collect at least the following number of Qualifying Contributions:

i) [#] Qualifying Contributions for a candidate running for the office of [X]
ii) [#] Qualifying Contributions for a candidate running for the office of [Y]
iii) [#] Qualifying Contributions for a candidate running for the office of [Z]
Comment: The number of Qualifying Contributions should reflect real grassroots support for a candidate. It must be high enough to screen out frivolous candidates who are unable to demonstrate a threshold level of support. At the same time, it must be low enough so as not to present a barrier to serious challengers
In setting the number, it should be noted that getting a $5 contribution is much more difficult than getting a petition signature. It should also be noted that the required number will need to be reviewed and, probably, revised once the new law has been in effect. Because it will be easier to revise the number upwards than downwards (incumbents being unlikely to encourage more challengers) - and because one of the primary purposes of Clean Money/Clean Elections legislation should be to open up the process and give voters more choice amongst competing candidates, parties, and perspectives - it may make sense in the initial drafting to err on the side of a number than may be too low rather than one that may be too high. On the other hand, the argument for erring on the high side is that if the public perceives that this new law, once enacted, has flooded the ballot with "non-serious" candidates, the Clean Money/Clean Elections system runs the risk of being discredited (and the Clean Money/Clean Elections Fund depleted).

In addition, the general rule-of-thumb is that the ratio of Qualifying Contributions to electoral-district population should be lower for smaller districts (e.g., city council wards or state representative districts) and higher for larger districts (e.g., the whole city or state). This rule has been followed in the two states-Arizona and Maine - that have passed and implemented (for the 1999-2000 election cycle) Clean Money/Clean Elections systems using five-dollar Qualifying Contributions, although Maine's ratios are higher than Arizona's for all districts. Those ratios (number of Qualifying Contributions per number of people) are as follows: state representative district - 1/305 (AZ), 1/162 (ME); state senate districts - 1/610 (AZ), 1/233 (ME); statewide - 1/916 (AZ), 1/491 (ME). Despite these disparate ratios, the qualifying process in both states appeared to work well, at least for legislative offices; in both states the first elections for statewide executive offices under the new law will take place in 2002.

Based on discussions with expert signature gatherers and fund-raisers, and on the experience of the one locale in the U.S. that has been using a similar qualifying requirement (Tucson, AZ), the Working Group on Electoral Democracy set the requirement for a candidate running in a district with a population of approximately 500,000 (e.g., one congressional district) at 1,000 Qualifying Contributions. The Wellstone-Kerry bill sets the required number of Qualifying Contributions for U.S. Senate candidates at one-quarter of 1 percent of the voting age population of the state, or 1,000 such contributions, whichever is higher
b) Each Qualifying Contribution, whether in the form of five dollars or a signed affidavit of indigence, shall be acknowledged by a receipt to the contributor, with a copy submitted to the Election Commission by the candidate. The receipt shall include the contributor's signature, printed name, home address, and telephone number, and the name of the candidate on whose behalf the contribution is made. In addition, the receipt shall indicate whether the Qualifying Contribution is in the form of five dollars or an affidavit of indigence, and by the contributor's signature the receipt shall indicate that the contributor understands that the purpose of the Qualifying Contribution is to help the candidate qualify for Clean Money/Clean Elections campaign funding and that the contribution is made without coercion or reimbursement.

c) A contribution submitted as a Qualifying Contribution that does not include a signed and fully completed receipt shall not be counted as a Qualifying Contribution
d) All five-dollar Qualifying Contributions, whether in the form of cash, or checks or money orders made out to the candidate's campaign account, shall be deposited by the candidate in her/his campaign account.

e) All Qualifying Contribution receipts must be sent to the Election Commission, for deposit in the Clean Money/Clean Elections Fund, and must be accompanied by a check from the candidate's campaign account for the total amount of Qualifying Contribution moneys received. This submission must be accompanied by a signed statement from the candidate indicating that all of the information on the Qualifying Contribution receipts is complete and accurate to the best of the candidate's knowledge and that the amount of the enclosed check is equal to the sum of all the five-dollar Qualifying Contributions the candidate has received
B) A Party Candidate qualifies as a Participating Candidate for the General Election Campaign Period if -

1) S/he met all of the applicable requirements and filed a declaration with the Election Commission that s/he has fulfilled and will fulfill all of the requirements of a Participating Candidate as stated in this Act; and

2) As a Participating Candidate during the Primary Election Campaign Period, s/he had the highest number of votes of the candidates contesting the Primary Election from her/his respective party and, hence, won the party's nomination

Section 104: Eligibility for Clean Money/Clean Elections Campaign Funding for Independent Candidates

A) An Independent Candidate qualifies as a Participating Candidate for the Primary Election Campaign Period -

1) If s/he files a declaration with the Election Commission that s/he has complied and will comply with all of the requirements of this legislation, including the requirement that during the Exploratory Period and the Qualifying Period the candidate not accept or spend private contributions from any source other than Seed Money Contributions and Clean Money/Clean Elections Qualifying Contributions (unless the provisions of Section 105 apply); and

2) If s/he meets the following Qualifying Contribution requirements before the close of the Qualifying Period:

a) An Independent Candidate shall collect the same number of Qualifying Contributions as a Party Candidate shall collect for the same office (see Section 103), and

Comment: Some have argued that candidates who do not have primaries, or major party primaries, should have to collect more (e.g., 125 percent or 150 percent more) qualifying contributions than those who do, especially before they receive the full amount of Clean Money/Clean Elections funding for the general election, because winning a primary in which there is significant voter participation is itself a demonstration of public support justifying the candidate's receipt of Clean Money/Clean Elections funding
b) Each Qualifying Contribution -

i) Shall be acknowledged by a receipt to the contributor, with a copy submitted to the Election Commission by the candidate. The receipt shall indicate, by the contributor's signature, that the contributor understands that the purpose of the contribution is to help the candidate qualify for Clean Money/Clean Elections campaign funding. The receipt shall include the contributor's signature, printed name, home address, and telephone number, and the name of the candidate on whose behalf the contribution is made
ii) Shall be submitted, with a signed and completed receipt, to the Election Commission according to a schedule and procedure to be determined by the Election Commission. A contribution submitted as a Qualifying Contribution that does not include a signed and fully completed receipt shall not be counted as a Qualifying Contribution
B) An Independent Candidate qualifies as a Participating Candidate for the General Election Campaign Period -

1) If, prior to the Primary Election s/he has met all of the applicable requirements of this legislation and filed a declaration with the Election Commission that s/he has fulfilled and will fulfill all of the requirements of a Participating Candidate as stated in this legislation, and

2) If, during the Primary Election Campaign Period, s/he has fulfilled all the requirements of a Participating Candidate as stated in this legislation

Section 105: Transition Rule for Current Election Cycle

A) During the first election cycle that occurs after the effective date of this Act, a candidate may be certified as a Participating Candidate (as defined in this Act), notwithstanding the acceptance of contributions or making of expenditures from private funds before the date of enactment that would, absent this section, disqualify the candidate as a Participating Candidate - provided that:

1) Any private funds accepted but not expended before the effective date of this Act shall be:

a) returned to the contributor;

b) held in a special campaign account and used only for retiring a debt from a previous campaign; or,

c) submitted to the Election Commission for deposit in the Clean Money/Clean Elections Fund (see Section 131 B) 3))

TITLE III: OBLIGATIONS OF PARTICIPATING CANDIDATES

Section 106: Continuing Obligation to Comply

A) A Participating Candidate who accepts any benefits during the Primary Election Campaign Period shall comply with all the requirements of this legislation through the General Election Campaign Period whether s/he continues to accept benefits or not
Comment: A candidate who qualifies for Clean Money/Clean Election funding in the primary cannot opt out of the Clean Money/Clean Elections system in the general election and decide to raise money from private sources. Once s/he receives Clean Money/Clean Elections funding in the primary s/he is obligated to comply with the requirements of this legislation for the general and, if necessary, the runoff election

Section 107: Contributions and Expenditures

A) During the Primary, General, and Run-off Election Campaign Periods, a Participating Candidate who has voluntarily agreed to participate in, and has become eligible for, Clean Money/Clean Elections benefits, shall not accept private contributions from any source other than the Candidate's political party as specified in Section 133 of this Act
Comment: If not already part of the existing definitions of "contribution" and "expenditure", the term "private contributions" here should specifically exclude (a) payments by a membership organization for the costs of communications to its members; (b) payments by a membership organization for the purpose of facilitating the making of Qualifying Contributions by its members; (c) volunteer activity, including the payment of incidental expenses by volunteers and limited use by volunteers of their own vehicles and other equipment; and (d) non-partisan and non-candidate-specific voter registration and get-out-the-vote activities conducted by individuals and organizations.

B) During the Primary, General, and Run-off Election Campaign Periods, a Participating Candidate who has voluntarily agreed to participate in, and has become eligible for, Clean Money/Clean Elections benefits, shall not solicit or receive political contributions for any other candidate or for any political party or other political committee.

Comment: Even though participating candidates aren't allowed to raise money for their own campaigns, as stipulated in Section A) above, they may be tempted, or pressured, to help raise it for their party's non-participating candidates, for the party itself, or for a political committee supporting a candidate of that party or opposing an opponent of that party's candidate. Doing so would undermine the intent of the Clean Money/Clean Elections law to keep elected officials from becoming obligated to financial contributors. Even if very little of this happened and the actual obligations incurred were not great, it would create a negative public perception of the effectiveness of the Clean Money/Clean Elections law and the integrity of the new Clean Money/Clean Elections system
It may make sense to extend this prohibition to the exploratory and qualifying periods as well.

The question of what constitutes "soliciting" political contributions will probably have to be clarified by the Clean Money/Clean Elections legislation itself or by the election commission as part of their rule-making process. For example, if a participating candidate makes an appearance or gives a speech at a non-participating candidate's fundraising event, but does not specifically ask people to give money, does that constitute soliciting? What if she signs a statement of endorsement for that candidate that is included in his fund appeal mailing?

C) No person shall make a contribution in the name of another person. A Participating Candidate who receives a Qualifying Contribution or a Seed Money Contribution that is not from the person listed on the receipt required by Section 103 A) 2) b) and Section 111 C) shall be liable to pay the Election Commission the entire amount of the inaccurately identified contribution, in addition to any penalties
D) During the Primary, General, and Runoff Election Campaign Periods, a Participating Candidate shall pay for all of her/his campaign expenditures, except petty cash expenditures, by means of a "Clean Money/Clean Elections Debit Card" issued by the Election Commission, as authorized under Section 132 of this Act
E) Eligible candidates shall furnish complete campaign records, including all records of Seed Money contributions and Qualifying Contributions, to the Election Commission at regular filing times, or on request by the Election Commission. Candidates must cooperate with any audit or examination by the Election Commission.

Section 108: Campaign Accounts for Participating Candidates

Comment: This section, which did not appear in previous editions of the Model Bill, is taken largely from Arizona's Clean Elections Act, which went into effect for the first time during the 1999-2000 election cycle. Similar provisions, applicable to non-participating candidates, can be found under Section 119 below
A) During an election cycle, each Participating Candidate shall conduct all campaign financial activities through a single campaign account
B) A Participating Candidate may maintain a campaign account other than the campaign account described in paragraph A) above if the other campaign account is for the purpose of retiring a campaign debt that was incurred during a previous election campaign in which the candidate was not a Participating Candidate
C) Contributions for the purposes of a retiring a previous campaign debt that are deposited in the kind of "other campaign account" described in paragraph B) above, shall not be considered "contributions" to the candidate's current campaign
Comment: This means that such contributions will not constitute violations of participating candidates' obligation not to accept private contributions from any source, as specified in Section 107 A).

D) Participating Candidates shall file reports of financial activity related to the current election cycle separately from reports of financial activity related to previous election cycles

Section 109: Use of Clean Money/Clean Elections Funds

Comment: This section is taken largely from the Arizona Clean Elections Act. Bill drafters may prefer to leave these definitions, or examples, of legitimate and illegitimate expenditures of public funds to the election commission to decide as part of their rule-making process. They are included in this edition of the Model Bill in order to underscore the importance of such rules - which proved to be quite helpful to the first round of candidates who participated in Arizona's Clean Elections Act (during the 1999-2000 election cycle).

A) Participating Candidates shall use their Clean Money/Clean Elections funds only for direct campaign purposes. Expenditures for direct campaign purposes include but are not limited to:

1) Written materials, pins, bumper stickers, handbills, brochures, posters, yard signs, newsletters, and tabloids;

2) Travel expenses including mileage reimbursement and lodging when out of town;

3) Communication expenses, advertising, purchase of media space and time, direct mail services, postage, telephone banks and calling services, and long-distance charges;

4) Headquarters expenses, including lease and utility expenses;

5) Expenses of volunteers, food for staff and volunteers, and staff salaries and other compensation;

6) Office supplies;

7) Accounting, reporting, clerical, campaign advisory, and other consulting services; and

8) Public relations expenses
B) A Participating Candidate shall not use Clean Money/Clean Elections funds for:

1) Costs of legal defense in any campaign law enforcement proceeding under this Act;

2) Indirect campaign purposes, including but not limited to:

a) The candidate's personal support or compensation to the candidate or the candidate's family;

Comment: On the other hand, bill drafters might want to consider the fact that even under a Clean Money/Clean Elections system, candidates without a lot of personal resources who have to continue working during their campaign are at a disadvantage compared to more well-off candidates who can afford to take time off for campaigning. One way to remedy this situation would be to allow candidates whose income and net worth are below a certain level to use a portion of their Clean Money/Clean Elections funds to defray personal expenses during the period immediately preceding an election.

b) The candidate's personal appearance;

c) Capital assets having a value in excess of [$500] and useful life extending beyond the end of the current election period determined in accordance with generally accepted accounting principles;

d) A contribution or loan to the campaign committee of another candidate or to a party committee or other political committee;

e) An independent expenditure;

f) A gift in excess of $25 per person;

g) Any payment or transfer for which compensating value is not received;

C) Upon written request from a Participating Candidate, the Election Commission shall determine whether a planned campaign expenditure or fundraising activity is a permissible expenditure of Clean Money/Clean Elections funds under this Act. To make a request, a candidate shall submit a description of the planned expenditure or activity to the Commission. The Commission shall inform the candidate whether an enforcement action will be necessary if the candidate carries out the planned expenditure or activity. The Commission shall ensure that the candidate can rely on a "no action" letter. A "no action" letter applies only to the candidate who requested it.

Section 110: Use of Personal Funds

A) Personal funds contributed as Seed Money by a candidate seeking to become eligible as a Participating Candidate or adult members of her/his family shall not exceed the maximum of $100 per contributor
B) Personal funds shall not be used to meet the Qualifying Contribution requirement except for one $5 contribution from the candidate her/himself and one $5 contribution from the candidate's spouse, provided that the candidate and her/his spouse are registered voters who reside in the candidate's electoral district
Comment: This section makes it illegal for candidates to use their personal wealth to advance their candidacies during the Primary, General, and Runoff Election Campaign Periods except by running as Privately Financed Candidates from the outset

Section 111: Seed Money

A) The only private contributions a candidate seeking to become eligible for Clean Money/Clean Elections funding shall accept, other than Qualifying Contributions and limited in-kind contributions from the candidate's political party as specified in Section 133, are Seed Money Contributions contributed by individual adults prior to the end of the Qualifying Period.

B) A Seed Money Contribution shall not exceed $100 per donor, and the aggregate amount of Seed Money Contributions accepted by a candidate seeking to become eligible for Clean Money/Clean Elections funding shall not exceed -

1) [dollar amount] for a candidate running for the office of [X],

2) [dollar amount] for a candidate running for the office of [Y],

3) [dollar amount] for a candidate running for the office of [Z]
Comment: Unlike qualifying contributions, seed money contributions do not have to come from individuals who reside in the candidate's district or state. This is because seed money, unlike qualifying contributions, is not meant to be a gauge of public support; it is simply a means for allowing candidates to pay for minimal expenses associated with "testing the waters" and qualifying for Clean Money/Clean Elections funding. For that reason, there would be no harm in a candidate receiving Seed Money Contributions from friends and family around the country. In addition, we don't want to disadvantage prospective Participating Candidates whose in-district supporters are primarily of low income and who, as a result, may need to seek seed money contributions from outside the district.

The aggregate Seed Money limit should be set relatively low so that candidates can't use it to wage a full-fledged campaign prior to the beginning of the Primary Election Campaign Period. For example, a reasonable amount for a candidate seeking to represent a population equal to that of one congressional district (between 500,000 and 600,000) might be $10,000 to $20,000.

C) Receipts for Seed Money Contributions under $25 shall only include the contributor's signature, printed name, and address. Receipts for Seed Money Contributions of $25 or more shall include the contributor's signature, printed name, street address and zip code, telephone number, occupation, and name of employer. Contributions shall not be accepted if the required disclosure information is not received
D) Seed Money shall be spent only during the Exploratory and Qualifying Periods. Seed Money shall not be spent during the Primary, General, or Runoff Election Campaign Periods
Restrictions on Use of Seed Money -

Comment: A previous version of this Model Bill (July 1997) included here a provision prohibiting the use of Seed Money for paid solicitation or collection of Qualifying Contributions. We have eliminated this provision because of the ACLU's claim that it would be declared unconstitutional under the Supreme Court's decision in Meyer v. Grant, in which the Court ruled, 9 to 0, that you can't prohibit paid signature gatherers. However, even if this prohibition were upheld, it might be almost impossible to enforce. For example, if a candidate seeking to become eligible for Clean Money/Clean Election funding hires a part-time staffer, how would you make sure that staffer doesn't use any of her paid time doing things that help with the solicitation of Qualifying Contributions - especially since collecting these contributions will probably be the principal focus of the candidate's campaign during the Qualifying Period? It's also possible that being able to use seed money to pay people to solicit Qualifying Contributions will be less of an advantage to incumbents (who can probably get most of their Qualifying Contributions through one big mailing) than to challengers who would be less likely to have such mailing lists and who might not be able to take time off from work to solicit Qualifying Contributions themselves
A previous version also prohibited the use of Seed Money to pay for broadcast advertising and mass mailings. This prohibition was taken out because both Clean Money/Clean Elections supporters and critics felt that it constituted too much, or at least unnecessary, government interference in the conduct of campaigns. Some also felt it could disadvantage challengers who need to use broadcast ads in order to solicit the requisite number of qualifying contributions. The purpose of this prohibition was to keep the effective length of campaigns - when candidates are using the airwaves in a major way - relatively short (relative to today's campaigns). But with a reasonable cap on the aggregate amount of seed money that can be collected, candidates won't be able to afford much broadcast advertising anyway, particularly on TV
E) Within [48 hours] after the close of the Qualifying Period, candidates seeking to become eligible for Clean Money/Clean Elections funding shall -

1) Fully disclose all Seed Money Contributions and expenditures to the Election Commission, and

2) turn over to the Election Commission for deposit in the Clean Money/Clean Elections Fund any Seed Money s/he has raised during the Exploratory Period that exceeds the aggregate Seed Money limit
Comment: It might be useful to stipulate here that Participating Candidates must report their Seed Money Contributions and expenditures electronically, if the option exists

Section 112: Participation in Debates

A) Participating Candidates in contested races shall participate in one one-hour public debate during a contested Primary Election, two one-hour debates during a contested General Election, and one one-hour debate during a Run-off Election
Comment: The rationale for requiring participation in debates is that the public has a right to put some conditions on candidates' receipt of public funds, and that one reasonable condition is that candidates take part in public debates (rather than avoid debates, as some candidates, particularly incumbents, now do). Though we think this provision, on balance, is worth including in Clean Money/Clean Elections legislation, a number of objections or reservations have been raised:

This requirement strays too far from the central aim of Clean Money/Clean Elections legislation - which is to make sure candidates willing to reject private contributions have an ample source of public funds for their campaigns - and inappropriately interferes with the conduct (as opposed to the financing) of campaigns. Certain candidates - those whose public debating skills are weak, or who have speech defects - might be unfairly disadvantaged. Even though part of a voluntary system, this requirement might not pass constitutional muster because, it is argued, people have a constitutional right not to speak.

It has also been argued that this provision raises too many thorny logistical questions, such as who the hosting organization(s) will be, where the debates will be held, what the format will be, what station or stations will broadcast them (see paragraph 2) below), and what happens if a Non-Participating Candidate refuses to debate and the Participating Candidate has no other opponent - and who decides all these things. Obviously, the answers to these questions will vary according to the geographic locale in which the election is being held. However, the arbiter of these decisions should probably be the relevant Election Commission, which, in turn, may choose to delegate this authority to another agency or group, such as a state Voter Information Commission (see Section 124) or the League of Women Voters
If the debate requirement (Section 112) is eliminated, the requirement that TV and radio stations broadcast the required debates (Section 126) should also be eliminated
1) Licensed broadcasters shall be required to publicly broadcast these debates (see Section 126)
2) Non-Participating Candidates for the same office whose names will appear on the ballot shall be invited to join the debates (see Section 126)
Comment: The reason this section requires that all candidates whose names will be on the ballot be invited to participate in the debates is because it is important that voters get to hear from everyone, regardless of how their campaigns are financed. In addition, to exclude Non-Participating Candidates from these debates could be construed by the courts as punitive, and thus a way of "coercing" candidates to run as Participating Candidates

Section 113: Campaign Advertisements

A) All broadcast and print advertisements placed by Participating Candidates or their committees shall include a clear written or spoken statement indicating that the Candidate has approved of the contents of the advertisement
Comment: The same requirement applies to Non-Participating Candidates (see Section 121)
Ad Labels Indicating A Candidate's Participation or Non-Participation -

Comment: It has been suggested that Clean Money/Clean Elections legislation require candidates' campaign ads to include a designation or label identifying whether the candidate is a Participating Candidate or a Non-Participating Candidate. However, if the label could be interpreted as discriminatory or prejudicial (e.g., "This candidate has chosen not to comply with the "Clean Elections Act"), it would likely be seen by the courts as a kind of "scarlet letter" and thus struck down. But even if the label used more neutral language (e.g., "This candidate has chosen not to participate in (the state's) voluntary public-financing program"), it would run the risk of being struck down as a form of "compelled speech," particularly for Non-Participating Candidates.

Some constitutional experts believe, however, that the government does have a legitimate right to inform voters, by means of a ballot label, as to which candidates are participating in the government's public financing program. Thus a ballot label provision is included in this draft of the Model Bill (see Section 129)
Ad Formats -

Comment: We have eliminated a requirement that was in an earlier edition of the Model Bill that Participating Candidates utilizing free media time (see Section 126) choose free time slots in units of one to five minutes each, and appear in person and use their own voice on radio for at least 50 percent of the broadcast time. Critics charge that format requirements of this kind, like certain kinds of required ad labels (see above), violate the 1st Amendment and are thus unconstitutional; they say that such requirements restrict the "content" of speech, not just the format. (This argument may have some validity, given that the reason format restrictions had been suggested was to discourage "negative" ads, which is about content.)

It isn't clear that this argument would prevail in court, but it raises the question of whether we want to take the chance and include it anyway. We advise against doing so. If Clean Money/Clean Elections bills include a candidate approval statement along the lines of paragraph A) above, the absence of format requirements will be less of a problem anyway. Also, some Clean Money/Clean Elections supporters argue that these format restrictions put the government into the inappropriate business of managing the conduct of campaigns, rather than simply assuring that there's a financially level playing field.

Section 114: Certification

A) No more than [five days] after a candidate applies for Clean Money/Clean Elections benefits, the Election Commission shall certify that the candidate is or is not eligible. Eligibility can be revoked if the candidate violates the requirements of this Act, in which case all Clean Money/Clean Elections funds shall be repaid
B) The candidate's request for certification shall be signed by the candidate and her/his campaign treasurer under penalty of perjury.

C) The Election Commission's determination is final except that it is subject to examination and audit by an outside agency and to a prompt judicial review

TITLE IV: CLEAN MONEY/CLEAN ELECTIONS BENEFITS AND OTHER PROVISIONS

Section 115: Benefits Provided to Candidates Eligible to Receive Clean Money

A) Candidates who qualify for Clean Money/Clean Elections funding for Primary, General, and Run-off elections shall -

1) Receive Clean Money/Clean Elections funding from the Election Commission for each election, the amount of which is specified in Section 117. This funding may be used to finance any and all campaign expenses during the particular campaign period for which it was allocated
2) Receive media benefits and mailing privileges as provided for in Sections 126-128 of this Act
Comment: Free broadcast benefits and mailing privileges apply only to federal candidates, since the airwaves and the U.S. Postal Service are federally regulated (i.e., state and local governments cannot mandate that free benefits be provided to candidates by broadcast stations or the Postal Service). However, any state or municipal government that owns a public broadcasting station can make available to candidates free air time on that station. In addition, municipal governments may be able to include in their franchise agreements with cable-TV companies a requirement that free air time be provided to candidates
3) Receive additional Clean Money/Clean Elections funding to match any Excess Expenditure Amount spent by a Non-Participating Candidate, as specified in Section 120 D) of this Act
4) Receive additional Clean Money/Clean Elections funding to match any Independent Expenditure made in opposition to their candidacies or in support of their opponents' candidacies, as specified in Sections 123 D), provided that the dollar value of the Independent Expenditure, combined with the amount raised or received thus far by any opposing Candidate who benefits from the Independent Expenditure, exceeds the original Clean Money/Clean Elections funding amount received by the Participating Candidate.

Comment: This would mean, for example, that if a Participating Candidate who has received $100,000 in Clean Money/Clean Elections funding is targeted by a $10,000 Independent Expenditure on behalf of a Non-Participating Candidate who has only spent $90,000 in private money, there would be no match unless and until the Non-Participating Candidate had spent (or obligated to spend) more than $90,000 ($90,000+ and $10,000 = $100,000+). If the Independent Expenditure were $15,000, the Participating Candidate would receive an additional $5,000 - not an extra $15,000 (since $90,000 + $15,000 = $105,000, which is only $5,000 over the original Clean Money/Clean Election funding allotment). However, a Participating Candidate targeted by a $15,000 Independent Expenditure on behalf of another Participating Candidate would automatically receive $15,000 in additional funds, since the latter candidate would already have received the same amount of Clean Money/Clean Elections funding as the first candidate.

In the case of an Independent Expenditure on behalf of a Candidate who is opposed by more than one Participating Candidate, it is worth considering whether an amount of additional funding equivalent to the cost the Independent Expenditure should be divided equally among the opposing Participating Candidates. E.g., if there are three Participating Candidates opposing the candidate on whose behalf the Independent Expenditure was made, each would receive an additional $5,000. The rationale for such an arrangement, in addition to conserving public funding resources, is that under these circumstances a Participating Candidate might not be disadvantaged as much by an Independent Expenditure as s/he would be if s/he were the only opposing candidate
For federal candidates receiving free and discount TV and radio time, the threshold for receiving additional funds would be 125 percent of the original Clean Money/Clean Elections funding amount received by the Participating Candidate - see comment under Section 115 A) 4))
B) Limits on Benefits for Candidates who Qualify for Clean Money/Clean Elections Funding

1) The maximum aggregate amount of additional funding a Participating Candidate shall receive to match Independent Expenditures and Excess Expenditures of Non-Participating Candidates shall be [200 percent] of the original amount of Clean Money/Clean Elections funding allocated to a Participating Candidate for a particular Primary, General, or Run-off Election Campaign Period
Comment: As written, this provision treats Primary, General, and Run-off elections as separate elections. So, for example, if a Participating Candidate for the state legislature received $10,000 for the Primary and $15,000 for the General Election, s/he could receive an additional $20,000 in the Primary (200 percent of $10,000) and an additional $30,000 (200 percent of $15,000) in the General Election.

Alternatively, this provision could be written so as to treat the Primary and General Elections as one election, so that this same candidate could, for example, receive all $50,000 of the allowable matching funds ($20,000 plus $30,000) during the General Election
Section 116: Schedule of Clean Money/Clean Election Funding Payments

A) An eligible Party Candidate shall receive her/his Clean Money/Clean Elections funding for the primary election campaign period on the date on which the Election Commission certifies the candidate as a Participating Candidate. This certification shall take place no later than [five days] after the candidate has submitted the required number of Qualifying Contribution receipts, a check for the total amount of Qualifying Contributions collected, and a declaration stating that s/he has complied with all other requirements for eligibility as a Participating Candidate, but no earlier than the beginning of the Primary Election Campaign Period
Comment: The time period given the Commission for certifying Participating Candidates should be as short as possible - but it also must be realistic from the Commission's standpoint. Expert advice is essential here
B) An eligible Party Candidate shall receive her/his Clean Money/Clean Elections funding for the general election campaign period within [48] hours after certification of the primary election results. An eligible Party Candidate shall receive her/his Clean Money/Clean Elections funding for a run-off election campaign period within [48] hours after certification of the general election results
C) An eligible Independent Candidate shall receive her/his Clean Money/Clean Elections funding for the Primary Election Campaign Period on the date on which the Election Commission certifies the candidate as a Participating Candidate. This certification shall take place no later than five days after the candidate has submitted the required number of Qualifying Contribution receipts, a check for the total amount of Qualifying Contributions collected, and a declaration stating that s/he has complied with all other requirements for eligibility as a Participating Candidate, but no earlier than the beginning of the Primary Election Campaign Period
D) An eligible Independent Candidate shall receive her/his Clean Money/Clean Elections funding for the general election campaign period within [48] hours after certification of the primary election results. An eligible Independent Candidate shall receive her/his Clean Money/Clean Elections funding for a run-off election campaign period within [48] hours after certification of the general election results

Section 117: Determination of Clean Money/Clean Elections Funding Amounts

Comment: It should be noted that under the provisions of this Act, candidates do not have to spend any money on fundraising except, perhaps, for a small amount of Seed Money that they might spend in order to raise additional Seed Money during the Exploratory Period. In the case of federal elections, provisions for free and discount media further reduce the cost of campaigning
In coming up with final figures, it should be a goal of this legislation to provide challengers not only the same amount of money as incumbents but enough money to overcome the name recognition and other advantages that incumbents have simply because they are in office. The Clean Elections legislation passed by the Vermont legislature and signed by the Governor in 1997, actually provides eligible challengers with more public funding than is provided to eligible incumbents.

Drafters of Clean Money/Clean Elections legislation should be sure not to under-fund Participating Candidates, whether challengers or incumbents. If the Clean Money/Clean Elections funding amounts are too low, candidates will be less likely to opt into the new system, for fear not only that they won't be able to reach the voters effectively but also that they will be outspent by Non-Participating Candidates who spend beyond the cap on additional funding for Participating Candidates (see Section 115 B). While higher amounts will increase the overall cost of the Clean Money/Clean Elections system, the total cost will still be far outweighed by the savings from eliminating tax breaks and other subsidies that now go to big contributors. No matter what the Clean Money/Clean Elections system costs, opponents will brand it as "too expensive" and a "waste of taxpayer dollars," so we might as well err on the side of generous funding amounts to insure that the new system works well.

Perhaps the best method for arriving at initial Clean Money/Clean Elections funding amounts is to take the median amount (adjusted for inflation) that was spent by winning candidates in competitive races for those offices in previous years (e.g., the last three or four election cycles) and then reduce those amounts by a certain percentage (e.g., 15-25 percent) to account for the absence of fundraising expenses. To guard against an anomalous situation in which recent winners of past races for a particular office have spent very low amounts (e.g., this might be the case if a popular governor has been re-elected three or four times in a row without having to spend much money), there should also be a minimum amount of funding for each office. These Clean Money/Clean Elections funding amounts would then be adjusted for inflation in subsequent years.

The ratio of Clean Money/Clean Elections funding provided for the primary and provided for the general election will depend somewhat on the particular state. In general, the ratio should probably be in the neighborhood of 1 to 2 or 2 to 3 (i.e., with 1/3 or 2/5 of the total amount allocated for the primary).

In states with "open primaries" in which candidates are appealing to all voters and not just voters within their own party, the costs of mounting a competitive primary election campaign will probably be greater, and thus the amount of Clean Money/Clean Elections funding allocated during the Primary Election Campaign Period should be adjusted accordingly
In "one-party" districts where the decisive race is usually the primary, it may seem illogical to provide more funding for the general election than the primary. But adjusting the ratio on a district-by-district basis, according to past voting patterns or party registration in each district, could raise complex administrative problems. Furthermore, previously non-competitive general elections are likely to be more competitive once Clean Money/Clean Elections funding is available and candidates have equal or nearly equal financial resources with which to reach the voters.

A) For Eligible Party Candidates -

1) The amount of Clean Money/Clean Elections funding for an eligible Party Candidate in a contested Primary Election is:

a) [dollar amount] for a candidate running for the office of [X]
b) [dollar amount] for a candidate running for the office of [Y]
c) [dollar amount] for a candidate running for the office of [Z]
2) The Clean Money/Clean Elections funding amount for an eligible Party Candidate in an uncontested Primary Election is 25 percent of the amount provided in a contested Primary Election
Comment: Our assumption is that Clean Money/Clean Elections reform will encourage more candidates to run for office, including more candidates challenging incumbents in their own primary, and thus there will be many fewer uncontested primary races. The rationale for providing funding to Participating Candidates who do have uncontested primaries is that such candidates need some money simply to be visible during the primary period - especially if primary candidates of other parties, or non-participating independent candidates, are actively campaigning (that is, spending money) during the Primary Election Campaign Period. However, this provision could be written to stipulate that as long as no other candidates for the particular office in question are spending money during the Primary Election Campaign Period, Participating Candidates for that office would receive no funding for the Primary (though s/he would still have had to fulfill the Clean Money/Clean Elections qualifying requirements)
3) In a contested General Election, if an eligible Party Candidate or all of the candidates of her/his party combined received at least 20 percent of the total number of votes cast for all candidates seeking that office in the just-held Primary Election or in the previous General Election, the Candidate shall receive the full amount of Clean Money/Clean Elections funding for the General Election, which is -

a) [dollar amount] for a candidate running for the office of [X]
b) [dollar amount] for a candidate running for the office of [Y]
c) [dollar amount] for a candidate running for the office of [Z]
4) In a contested General Election, if an eligible Party Candidate or all of the candidates of her/his party combined received at least 5 percent but less than 20 percent of the total number of votes cast for all candidates seeking that office in the just-held Primary Election or in the previous General Election, the Candidate shall receive a portion of the full amount of Clean Money/Clean Elections funding based on the ratio that their vote percentage is to 20 percent. If an eligible Party Candidate or all of the candidates of her/his party combined received less than 5 percent of the total number of votes cast for all candidates seeking that office in the just-held Primary Election or in the previous General Election, the Candidate shall receive no Clean Money/Clean Elections funding

Comment: In other words, if all the candidates competing in the Blue Heron Party's primary together received 15 percent of the total number of votes cast for primary candidates of all parties (or if the Blue Heron Party's candidate in the last General Election received 15 percent of the total votes cast in that election), the winner of the Blue Heron Party's primary this time would receive 75 percent of the full amount of Clean Money/Clean Elections funding (15/20 = 75 percent) for the upcoming General Election. If the percentage were 5 percent, the candidate would get 25 percent of the full amount of Clean Money/Clean Elections funding for the General Election (5/20 = 25 percent). Party Candidates who qualify for proportional Clean Money/Clean Elections funding for the General Election would, like candidates receiving full funding, be forbidden to raise and spend any additional money from private sources
5) The Clean Money/Clean Elections funding amount for an eligible Party Candidate in an uncontested General Election is [10] percent of the amount provided in a contested General Election for the same office
Comment: Again, the assumption is that a Clean Money/Clean Elections system will encourage more candidates to run for office, and thus uncontested or noncompetitive general-election races, even ones in "single-party" districts, will be greatly diminished or even disappear. The rationale for giving some funding to Participating Candidates who do have uncontested general elections is that such candidates, even though they are bound to win the election, need to be able to communicate their messages to the voters and encourage voters to vote for them so that they will have an electoral mandate to hold office and voters will know something about whom they are electing. On the other hand, the smaller the amount, the more money will be saved
6) The Clean Money/Clean Elections funding amount for an eligible Party Candidate in a Run-off Election is 25 percent of the amount provided in the preceding Primary or General Election that resulted in the need for a Run-off Election
B) For Eligible Independent Candidates

1) The Clean Money/Clean Elections funding amount for an eligible Independent Candidate in a Primary Election is 25 percent of the amount received by a Party Candidate in a contested Primary Election
2) The Clean Money/Clean Elections funding amount for an eligible Independent Candidate in the General Elections is the same as the full amount received by a Party Candidate in the General Election
C) After the first election cycle under Clean Money/Clean Elections Act, the Election Commission shall modify all Clean Money/Clean Elections funding amounts based on the rate of inflation or the cost-of-living (COLA) index

Section 118: Expenditures Made with Clean Money/Clean Elections Funds

A) The Clean Money/Clean Elections funding received by a Participating Candidate shall be used only for the purpose of defraying that candidate's campaign-related expenses during the particular election campaign period for which the Clean Money/Clean Elections funding was allotted
B) Payments shall not be used

1) In violation of the law
2) To make any personal, family or business expenditures or loans, or to repay any personal, family or business loans or debts

TITLE V: PROVISIONS FOR NON-PARTICIPATING CANDIDATES

Comment: The provisions under this title are minimal because it is not the intent of Clean Money/Clean Elections legislation to reform the existing private financing system, but to create a complete alternative to it. To the extent that Clean Money/Clean Elections legislation attempts to "clean up" the private system, it undermines its own underlying premise that privately financed elections (in a society where private money is so unequally distributed) are inherently unfair and undemocratic. On the practical side, the more provisions there are that regulate, or further regulate, privately financed campaigns, the longer and more complex the proposed Clean Money/Clean Elections legislation becomes, and thus the harder it is to explain and comprehend.

An argument on the side of including restrictions, or further restrictions, on privately financed campaigns - besides the fact that current limits are simply too high, or non-existent - is that it will provide additional incentive for candidates to choose Clean Money/Clean Elections financing. This may be true, but going too far in this direction runs the risk of courts striking down Clean Money/Clean Elections legislation on the grounds that the limitations on the private side are not justified by a "compelling state interest" such as the appearance of corruption, and also on the grounds that the private-side limitations are sufficiently onerous in relation to the attractiveness of the Clean Money/Clean Elections alternative, that the Clean Money/Clean Elections system becomes, in effect, "coercive" and involuntary
Even if no additional restrictions are placed on privately financed campaigns, opponents of Clean Money/Clean Elections financing are still likely to challenge it in court as essentially involuntary, and therefore unconstitutional under the Supreme Court's Buckley v. Valeo ruling. But Clean Money/Clean Elections proponents will be in a better position to prevail against such a challenge if they haven't tried to clamp down too hard on the private side

Section 119: Campaign Accounts for Non-Participating Candidates

Comment: This section, which did not appear in previous editions of the Model Bill, is taken largely from Arizona's Clean Elections Act, which went into effect for the first time during the 1999-2000 election cycle. Equivalent provisions, applicable to Participating Candidates, can be found under Section 108 above.

A. During an election cycle, each Non-Participating Candidate shall conduct all campaign financial activities through a single campaign account
B. A Non-Participating candidate may maintain a campaign account other than the campaign account described in paragraph A) above if the other campaign account is for the purpose of retiring a campaign debt that was incurred during a previous election campaign in which the candidate was not a Participating Candidate
C. Contributions for the purposes of retiring a previous campaign debt that are deposited in the kind of "other campaign account" described in paragraph B) above, shall not be considered "contributions" to the candidate's current campaign
Comment: This means that such contributions will not be counted in any calculation of "excess spending" that might trigger additional funds for their participating opponents.

Section 120: Disclosure of Excess Spending by Non-Participating Candidates

A) If a Non-Participating Candidate's total expenditures or obligations to make expenditures exceed the amount of Clean Money/Clean Elections funding allocated to her/his Clean Money/Clean Elections opponent(s), s/he shall declare every Excess Expenditure Amount which, in the aggregate, is more than [$1,000] to the Election Commission within [48 hours]
Comment: The dollar threshold for reporting Excess Expenditure Amounts should probably be lower for most state elections than for federal elections. In the "Clean Money, Clean Elections" bills introduced in the U.S. Senate and House in mid-1997, the threshold is $1,000.

As for the time requirement, one election-law expert has suggested that 48 hours is too burdensome. She also points out that, given that many campaign expenditures involve a series of payments to different vendors (the firm that designs a TV ad, the agent who books the time slots, and the TV stations that run the ads), more meaningful reporting would result if the time period were longer. However, in the context of a Clean Money/Clean Elections system in which Participating Candidates would receive additional funds if they faced non-participating opponents who spend in excess of the Clean Money/Clean Elections funding amount, it makes sense to be able to distribute the additional funds relatively soon after each aggregate increment of excess spending. If 48 hours is too short a period, perhaps 7 days would be more appropriate, at least until the last 20 days before the elections (see paragraph B) below).

B) During the last [20 days] before the end of the relevant campaign period, a Non-Participating Candidate shall declare to the Election Commission each Excess Expenditure Amount over [$500] within 24 hours of when the expenditure is made or obligated to be made.

Comment: This last-20-days provision still leaves open the possibility of a major excess expenditure during the final day or two of the campaign when it might be too late for the Participating Candidate to receive, and spend, matching money. But in all likelihood, any such major expenditure - particularly broadcast ads, which usually have to be booked in advance - would require an advance obligation (i.e., a contract, or down payment) that would have to be made well before the last one or two days before the election. Furthermore, by the time the election is just a few days away most, if not all, of the media time (at least the more popular time slots on television) has already been sold.

A more effective, though constitutionally riskier, alternative would be to require Non-Participating Candidates to declare, 20 days before the end of the relevant campaign period, the amount of money they intend to spend over and above the amount of Clean Money/Clean Elections funding allocated to Participating Candidates in the same race, and to prohibit them from making additional campaign expenditures in excess of this declared amount. Even though such a provision would not, in fact, limit the amount that non-participating candidates could spend, it might be challenged in court (under the Supreme Court's 1976 Buckley v. Valeo ruling) on the grounds that it stifles or "chills" non-participating candidates' First Amendment right to spend unlimited amounts of money
C) The Election Commission may make its own determination as to whether Excess Expenditures have been made by Non-Participating Candidates
D) Upon receiving an Excess Expenditure declaration or determining that an Excess Expenditure has been made, the Election Commission shall immediately release additional Clean Money/Clean Elections funding to the opposing Participating Candidate(s) equal to the Excess Expenditure amount the Non-Participating Candidate has spent or has obligated to spend, subject to the limit set forth in Section 115 B)
Comment: For federal elections in which Participating Candidates also receive a substantial amount of free and/or discount (i.e., below "lowest unit rate") TV and radio time, it may be more appropriate to raise the trigger for matching funds from $1,000 over the Clean Money/Clean Elections funding amount to $1,000 over, say, 125 percent of the Clean Money/Clean Elections funding amount (if the value of the free and discount broadcast time comes to about 25 percent of the Clean Money/Clean Elections funding amount). Since non-participating candidates would not be eligible to receive free and discount broadcast time, this would keep the financial playing field level.

Section 121: Campaign Advertisements

A) All broadcast and print advertisements placed by Non-Participating Candidates or their committees shall include a clear written or spoken statement indicating that the Candidate has approved of the contents of the advertisement
Comment: The same requirement applies to Participating Candidates (see Section 111). Critics may argue, however, that it is constitutionally suspect as applied to Non-Participating Candidates who, unlike Participating Candidates, have not voluntarily chosen to participate in the Clean Money/Clean Elections system. But because this requirement does not affect the content of the ad itself, it will probably not be seen by the courts as a violation of the First Amendment's guarantee of free speech.

TITLE VI: INDEPENDENT EXPENDITURES

Section 122: Definition of Independent Expenditure

Comment: This is one of the most difficult and controversial areas of campaign finance law. Reformers should proceed carefully, with specific advice from sympathetic legal experts, thus making sure to consider the constitutional as well as practical implications of any proposed definitions. In addition, state groups drafting Clean Money/Clean Elections legislation should start by finding out how their own campaign finance laws currently define "independent expenditure."

A) The term "independent expenditure" means an expenditure made by a person or group other than a candidate or candidate's authorized committee that -

1) advocates the election or defeat of a candidate, and

2) is made without the participation or cooperation of and without coordination with a candidate or candidate committee
B) Expenditures that "advocate the election or defeat of a candidate" include all costs of designing, producing, or disseminating a communication that contains phrases such as "vote for", "re-elect", "support", "cast your ballot for", "(name of candidate) for (name of office)", "(name of candidate) in (year)", "vote against", "defeat", "reject", or contains campaign slogans or individual words that in context can have no reasonable meaning other than to recommend the election or defeat of one or more clearly identified candidates, such as posters, bumper stickers, advertisements that use a candidate's name in a promotional manner, such as "Nixon's the One," "Carter '76," "Reagan/Bush" or "Mondale!"

Comment: The first part of the wording in B) above is based on footnote 52 of the U.S. Supreme Court's 1976 Buckley v. Valeo decision; the latter part is based on a 1995 ruling by the U.S. District Court for the District of Maine in Maine Right to Life Committee v. FEC, which was upheld by the Court of Appeals for the First Circuit. However, bill drafters should be aware that the latter part, which is taken from the FEC's use of the language in the Ninth Circuit's 1987 FEC v. Furgatch ruling, has been struck down by federal courts in other jurisdictions.

In addition to, or perhaps instead of, using the controversial Furgatch language, drafters might consider using language from the U.S. Supreme Court's 1986 FEC v. Massachusetts Committee for Life (MCFL) decision, in which the Court ruled that a voter guide was "in effect an explicit directive" to vote for certain candidates, despite the absence of the kinds of words mentioned in the Buckley footnote. "The fact that this message is marginally less direct than 'vote for Smith,'" said the Court, "does not change its essential nature."

C) Costs incurred in designing, producing, or disseminating a communication are presumed to "advocate the election or defeat of a candidate" if the communication names or depicts one or more clearly identified candidates, is disseminated during the 45 calendar days before a primary election or during the 60 calendar days before a general election, and the costs exceed [$1,000].

Comment: This wording in C) above is an attempt to address the problem of sham "issue advocacy" - that is, electioneering speech that attempts to escape regulation by avoiding use of the "magic words" of express advocacy (e.g., "elect" or "defeat") mentioned in the footnote to the Buckley decision (see Comment above). The 1996 and 2000 federal elections saw enormous increases in the use of "issue ads" to support or defeat (usually defeat) candidates.

Concern has been raised that categorizing as an Independent Expenditure any communication during the designated period prior to an election that refers to a specific candidate and cost more than a threshold amount could hamper legitimate lobbying efforts. If, for example, a state legislature were debating an educational reform law shortly before an election, communications expenditures by teachers unions aimed at bringing pressure on specific legislators could be counted as Independent Expenditures. Even if no specific legislation is about to be voted on, the argument is made that elections and candidate positions offer issue groups a unique opportunity to bring issues to the public's attention. Although unions and other groups would have the opportunity to prove that they were not intending to affect the election (i.e., to rebut the presumption that they were intending to do so), some fear that the law could have a chilling effect on their speech. This is part of what gives rise to the constitutional concerns of such a provision
Although wording similar to that contained in paragraph C) above is part of campaign finance legislation that has garnered considerable support in Congress (and may soon become law, if Congress passes and the President signs such legislation), bill drafters should know that no federal or state court, as yet, has endorsed this approach. However, many legal experts in the reform community believe that the kind of "bright line" test contained in C) above (which is not part of the congressional legislation now pending), coupled with the use of a "rebuttable presumption" such as the one outlined below in paragraph D) below, is the type of reform that the courts are most likely to find acceptable in addressing electioneering that poses as issue advocacy.

Bill drafters who desire to avoid legal controversy may choose to delete paragraphs C) and D) from this section. However, such an approach will mean, as a practical matter, that independent groups can easily devise ads and other communications that advocate the election or defeat of candidates while avoiding disclosure rules and without the ability of the election commission to match such expenditures for participating candidates
Finally, the dollar threshold at the end of C) above needs to be tailored to each elective office covered by the bill, according to the size and political realities of the jurisdiction - e.g., $1,000 in races for governor and U.S. Senator, $500 for state attorney general and U.S. Representative, $200 for state senator, $100 for state representative
D) In any proceeding to enforce compliance with requirements pertaining to expenditures, an individual or entity presumed to have made an expenditure advocating the election or defeat of a candidate under Section 122 C) shall have an opportunity to rebut the presumption, and the Election Commission shall bear the burden of proof.

E) Individuals or entities intending to disseminate a communication during the 45 calendar days before a primary election or during the 60 calendar days before a general election that names or depicts one or more clearly identified candidates and costs in excess of [$1,000] may submit the communication to the Election Commission in advance of its dissemination, with a request for an advisory opinion as to whether the Commission is likely to consider the communication an Independent Expenditure. The Election Commission shall issue the advisory opinion within [three days] of receiving such a request.

Comment: See comment under paragraph C) above
E) The term "independent expenditure" does not include -

1) any news story, commentary, or editorial by a broadcasting station, newspaper, magazine, or other publication, provided such entity is not owned by or affiliated with any candidate or candidate committee; or,

2) any newsletter or other communication whose circulation is limited to an organization's members, employees, shareholders, other affiliated individuals and those who request or purchase the internal publication.

F) The term "coordination" as used in Section 122 A) 2) above refers to a payment made for a communication or anything of value that is for the purpose of influencing the outcome of a (federal, state) election and that is made -

Comment: This sample definition of "coordination," taken largely from the 1997 Wellstone-Kerry "Clean Money, Clean Elections" bill, is somewhat controversial. It has been criticized for defining "coordination" so broadly as to curtail legitimate electoral activity. Drafters of the Wellstone-Kerry bill argued that in order to eliminate some of the covert coordination between candidates and those making "independent" expenditures, it is necessary to broaden the current FEC definition of "coordination." It should be remembered, however, that while "express advocacy" communications (ones that advocate the election or defeat of a candidate) that fall outside the definition of "coordinated" will not be treated as contributions to candidates, they will be treated as independent expenditures, as defined in Section 122 above, and will be matched if they target Participating Candidates or support the opponents of Participating Candidates.

1) by a person in cooperation, consultation, or concert with, at the request or suggestion of, or pursuant to a particular understanding with a candidate, a candidate's authorized committee, or an agent acting on behalf of a candidate or authorized committee;

2) by a person for the dissemination, distribution, or republication, in whole or in part, of any broadcast or any written, graphic, or other form of campaign material prepared by a candidate, a candidate's authorized committee, or an agent of a candidate or authorized committee;

3) based on specific information about the candidate's plans, projects, or needs provided to the person making the payment by the candidate or the candidate's agent who provides the information with a view toward having the payment made;

4) by a person if, in the same election cycle in which the payment is made, the person making the payment is serving or has served as a member, employee, fund-raiser, or agent of the candidate's authorized committee in an executive or policy-making position;

5) by a person if the person making the payment has served in any formal policy or advisory position with the candidate's campaign or has participated in strategic or policy-making discussions with the candidate's campaign relating to the candidate's pursuit of nomination for election, or election, to a (federal, state) office, in the same election cycle as the election cycle in which the payment is made; and,

6) by a person if the person making the payment retains the professional services of an individual or person who, in a non-ministerial capacity, has provided or is providing campaign-related services in the same election cycle to a candidate who is pursuing the same nomination or election as any of the candidates to whom the communication refers
a) The term "professional services" includes services in support of a candidate's pursuit of nomination for election, or election, to (federal, state) office such as polling, media advice, direct mail, fundraising, or campaign research

Section 123: Disclosure of, and Additional Clean Money/Clean Elections Funding to Respond to, Independent Expenditures

Comment: In November of 1999, Chief Judge D. Brock Hornby of the U.S. District Court of the District of Maine ruled that the Maine Clean Elections Act was constitutional in all respects, including the provision of matching funds for participating candidates targeted by independent expenditures. Judge Hornby's ruling was upheld by the First District Court of Appeals. This was despite a 1994 decision in which the Eighth Circuit Court of Appeals struck down that part of a Minnesota law that provided publicly financed candidates with additional funds to match independent expenditures (Day v. Holahan). However, given the definition of independent expenditure in Section 122 above (including the "bright line test" covered in paragraph C) of that section), it should be noted that under Maine law independent expenditures are defined narrowly to refer only to ads containing the "magic words" mentioned in the footnote to the U.S. Supreme Court's 1976 Buckley v. Valeo decision
A) Subject to the exception stipulated in paragraph C) below, any person or persons who make or obligate to make an Independent Expenditure during a Primary, General, or Run-off Election Campaign Period which, in the aggregate, exceeds [$1,000] shall report each expenditure within [7 days] to the Election Commission
Comment: As noted in the comment under Section 122 C) above, the dollar threshold for reporting independent expenditures should be tailored to each elective office covered by the bill, according to the size and political realities of each jurisdiction.

B) The report to the Election Commission shall include a signed statement by the person or persons making the Independent Expenditure identifying the candidate or candidates whom the Independent Expenditure is intended to help elect or defeat and affirming that the expenditure is totally independent and involves no cooperation or coordination with a candidate or a political party
Comment: The provisions in B) attempt to prevent individuals and groups opposing a candidate from doing damage to that candidate's campaign by financing ads that ostensibly support the candidate but are so outrageous in their contents that they actually, and deliberately, hurt the candidate that their ad fraudulently seems to endorse
For purposes of public information, Section 123 could also require (if such a requirement does not already exist) that persons or groups making independent expenditures disclose their major (e.g., top 4 or 5) contributors. Washington state already has such a requirement
1) An individual or organization may file a complaint with the Election Commission if s/he or the organization believes that such a statement is false. The Election Commission shall make a prompt determination about such a complaint
2) Any individual or organization that fails to file the required report to the Election Commission or provides materially false information in that report may be fined up to three times the amount of the independent expenditure. The criminal penalties contained in Section 141 of this Act shall not apply to any violations of this section
Comment: This section establishes civil penalties, rather than criminal penalties, for a failure to file the required reports on independent expenditures. One of the reasons the Supreme Court, in its 1976 Buckley v. Valeo decision, narrowly construed the independent expenditure reporting requirement was its concern that the Federal Election Campaign Act contained criminal penalties for violations of those reporting requirements. Thus, the kind of broadened definition of independent expenditure outlined in Section 122 above is most likely to survive court challenge if the penalties are civil in nature, rather than criminal
C) Any person or persons who make or obligate to make an Independent Expenditure during the last [20 days] before the end of the relevant campaign period which, in the aggregate, exceeds [$500] shall report each expenditure within 24 hours to the Election Commission
Comment: This last-20-days provision still leaves open the possibility of a major independent expenditure during the final day or two of the campaign when it might be too late for the Participating Candidate to receive, and spend, matching money. But in all likelihood, any such major expenditure - particularly broadcast ads, which usually have to be booked in advance - would require an advance obligation (i.e., a contract or down payment) that would have to be made well before the last one or two days before the election. Furthermore, by the time the election is just a few days away most, if not all, of the media time (at least the more popular time slots on television) has already been sold.

A more effective, though constitutionally riskier, alternative would be to require anyone making an independent expenditure to declare, 20 days before the end of the relevant campaign period, the amount of money he or she intends to spend and to prohibit them from making additional independent expenditures in excess of this declared amount. Even though such a provision would not, in fact, limit the amount of independent expenditures, it might be challenged in court (under the Supreme Court's 1976 Buckley v. Valeo ruling) on the grounds that it stifles or "chills" people's 1st Amendment right to spend unlimited amounts of money to influence election campaigns
D) Upon receiving a report that an Independent Expenditure has been made or obligated to be made, the Election Commission shall immediately release additional Clean Money/Clean Elections funding, equal in amount to the cost of the Independent Expenditure, to all Participating Candidates whom the Independent Expenditure is intended to oppose or defeat, as set forth in Sections 123 B) and C) above, provided that -

1) the dollar value of the Independent Expenditure, combined with the amount raised or received thus far by any opposing Candidate who benefits from the Independent Expenditure, exceeds the original Clean Money/Clean Elections funding amount received by the Participating Candidate.

Comment: See comment under Section 115 A) 4) above
2) the maximum aggregate amount of additional funding a Participating Candidate shall receive to match Independent Expenditures and the Excess Expenditures of Non-Participating Candidates is no more than [200 percent] of the Participating Candidate's initial Clean Money/Clean Elections funding allocation for the relevant office.

Comment: The numbers here can be a bit confusing. If a Participating Candidate receives the maximum amount of additional funding (an amount equal to, say, 200% of the original Clean Money/Clean Elections funding allocation), then the total amount of Clean Money/Clean Elections funding the candidate would have received (the original amount plus the additional) would be 300% of the original amount.

TITLE VII: VOTER INFORMATION AND CAMPAIGN COMMUNICATIONS

Section 124: Voter Information Commission

Comment: This section applies to state legislation only. However, federal legislation could encourage states to create state voter information commissions (where none exist) by making federal funding available for use by the state commissions in distributing voter information about, and facilitating or sponsoring of public debates among, the state's congressional candidates.

An important corollary of establishing Clean Money/Clean Elections reform ought to be insuring the existence of an informed electorate. This is all the more true in light of frequent charges (however unfounded) that under a Clean Money/Clean Elections system that limits spending, voters will not get enough information with which to make informed choices on election day. That said, because this section doesn't relate directly to the question of where candidates get their campaign funds, and because it makes sense to try to keep the Clean Money/Clean Elections legislation relatively simple and uncluttered, this section may be more appropriately considered as separate legislation.

A) The Office of the Secretary of State (or the Election Commission) shall establish and administer a nonpartisan Voter Information Commission consisting of representatives of nonprofit organizations, political parties, the media, and interested citizens
B) The Voter Information Commission shall be authorized to establish a Voter Information Program for the purpose of providing voters with election-related information and fostering political dialogue and debate
C) The Voter Information Commission shall organize the publication and distribution of a Voter Information Guide that includes important information about candidates appearing on the ballot, including biographical material submitted by the candidates; whether candidates are funding their campaigns with public money or private money; policy statements by the candidates and/or their political parties on issues designated by the Commission and other issues; and, when pertinent, candidates' voting records
Comment: An interesting variation on the Voter Information Commission idea, included in the draft of one Clean Money/Clean Elections bill, would allow publicly financed candidates to place brief campaign statements in the state's voter information pamphlet at no cost. Privately financed candidates, however, would have to pay a pro-rata cost in order to have their statements appear in the pamphlet

Section 125: Broadcast Debates

Comment: This section applies primarily to federal legislation, since regulation of the airwaves and broadcast media is, under current law and constitutional interpretation, the sole province of the federal government. It has been argued, however, that since the states have the constitutional authority to conduct their own elections, and because commercial TV and radio have become such critical components of modern-day state elections, it is impossible for states to properly carry out this authority without the ability to regulate election-related commercial broadcasts.

In states where some public support from the state government is given to public radio and/or television stations (and public cable outlets, if such exist), state Clean Money/Clean Elections legislation could require such stations to broadcast candidate debates. In addition, municipal governments may be able to include in their franchise agreements with cable-TV companies a similar requirement. Any state or municipal government that owns a public broadcasting station can, of course, make sure that the station airs candidate debates.

A) All television and radio broadcast stations shall make available, as a condition of their licenses, free coverage for candidate debates in contested primary, general, and run-off elections
Comment: The rationale for making this requirement of broadcasters is based on the fact that the airwaves belong to the public. In order to receive licenses (which are free of charge) to use this public resource, broadcasters must agree to serve "the public interest, convenience, and necessity." This should include providing free coverage of candidate debates, as a way of helping to inform the electorate. The revenue lost as a result would constitute a minuscule proportion of stations' gross income
It should be noted, however, that this provision - along with the provision requiring stations to give federal candidates free air for their campaign ads (see Section 126) - may face a constitutional challenge. It could be argued that the provision constitutes an unconstitutional "taking" that violates the Fifth Amendment's guarantee of just compensation, and/or that it violates the First Amendment's protection of free speech by dictating what "speech" the broadcasters must air. The first argument is probably not strong, especially if the provision only applies to future licenses or license renewals. The second argument would likely not prevail when it comes to requiring broadcasters to air 30- or 60-second campaign ads (which are normally aired during the time slots when regular commercial ads are aired), but it might have more validity as applied to one-hour debates (the airing of which would force broadcaster to pre-empt their regular programming).

1) At a minimum, broadcasters shall broadcast, and Participating Candidates shall participate in (see Section 110), one one-hour debate during a contested primary election, two one-hour debates during a contested general election, and one one-hour debate during a run-off election
B) All Participating Candidates shall participate in the debates and all Non-Participating Candidates for the same office whose names will appear on the ballot must be invited to join the debates

Section 126: Free Broadcast Media Advertising

Comment: This section applies only to federal legislation. See comment under Section 125
A) All television and radio broadcast stations shall, as a condition of their licenses, make available free time to Participating Candidates in addition to the time allotted for the broadcasting of public debates (see Section 125)
Comment: The primary reasons for providing Participating Candidates with free broadcast time for their campaign ads are to bring down the overall cost of the Clean Money/Clean Elections system and to increase voter information. The rationale for making it a condition of broadcast licenses is the same as for the debate requirement (see comment under Section 125). Providing a limited amount of free air time to candidates for public office will cost broadcasters more than simply providing free time for debates, but the highly profitable broadcast industry can afford it. Paul Taylor, executive director of the Alliance for Better Campaigns, estimates that the value of all political ads on TV by candidates, parties, and issue groups during the 1999-2000 election amounted to only one to three percent of local broadcast stations' total advertising revenues for that period
1) Each Participating Candidate for the U.S. Senate shall be allotted [30] minutes for the primary campaign, [60] minutes for the general election campaign, and [30] minutes for a run-off election campaign
2) Each Participating Candidate for the U.S. House of Representatives shall be allotted [15] minutes for the primary campaign, [30] minutes for the general election campaign, and [15] minutes for a run-off election campaign
B) The total amount of time made available by any one station shall be no more than a fixed percentage of that station's advertising or programming time during the Primary, General, and Run-off Election Campaign Periods, as specified by the Federal Election Commission and the Federal Communications Commission jointly, in consultation with the broadcast media directly affected
Comment: In major metropolitan areas, especially Los Angeles a