So enough with the midterm election. That's so 2014. Who gets to be the next President? And could it be a real-life Lisa Simpson?
I know you Simpsons mega-fans are all ready to write me about the flaw in my headline since Lisa Simpson has already been elected president in flash-forwards in The Simpsons. I know, I know. I'm a mega fan too, which is why I think pondering what chance a real-life Lisa Simpson has in our real privately-funded electoral system may be a useful way of framing the issue.
So who do I mean by a real-life "Lisa Simpson"? I mean someone who is super bright, hard-working, ambitious, with an unshakeable moral core, but who is from a working class family who doesn't have any natural political connections, like being named Kennedy or Bush.
Of course the odds of any one American becoming president are long. There is one president and 319 million residents of the U.S. Not all of those are natural born citizens and not all of them are over age 35, the two requirements for the presidency under the U.S. Constitution--but still, the odds are long no matter how you cut it. Or, as Abe Simpson once said to a young Homer, "You, President? This is the greatest country in the world. We've got a whole system set up to prevent people like you from ever becoming president."
A "Lisa Simpson" would have a hard time breaking through as a candidate because of the ways our election laws and campaign finance laws are slowly being pulled apart by a hostile Supreme Court. When I think of the laws that would help a "Lisa" I think of three broad categories: (1) rules that keep corporate money out of elections; (2) rules that govern pay-to-play quid pro quo exchanges and (3) transparency rules for money in politics.
Yet it is precisely these three areas of law--these basic rules of the game--which have been under relentless legal attack in recent years. These attacks are on-going. For example, take limits on corporate money in politics. In 2010, corporations got the right to spend independently of federal candidates. In 2011, the Supreme Court clarified that corporations could spend as much as they wanted in state races too. And this has spawned lawsuits like RNC v. FEC which tried to undo the limit on corporations giving to political parties as well as the Tooker case which tried to undo limits of corporations giving money directly to candidates. So far this hasn't worked but a 2003 case called Beaumont, which upholds the ban on corporate giving to federal candidate, looks like a likely next target for dismantling. I'd wager that most corporate money is likely to be spent against a rabble rouser like Lisa.
Pay to play laws, which had had a pretty good run in the courts for decades, are also under challenge presently. These laws typically ban or limit the amount of money (including campaign money) a government contractor can give an official who has influence over the government contracting decision. For example, the SEC issued an anti-pay-to-play rule that applied to the investment advisers of public pension funds. This rule was enacted after NYS Comptroller Alan Hevesi sold access to the NYS pension fund to investment firms that wanted to do lucrative business with the state. Among the things he got in exchange were campaign contributions. But in 2014, this anti-pay-to-play rule was challenged, not by an investment adviser who would clearly have standing, but rather by the Tennessee Republican Party. This case was dismissed for lack of subject matter jurisdiction, but could be refiled in the proper court. So watch this space. Without anti-pay-to-play restrictions, money is likely to flow from would-be government contractors to incumbent politicians. And our underdog Lisa is likely to be left out in the cold in such shady deals.
Finally, transparency makes a backroom deal harder to pull off. The Supreme Court has been really good on the issue of transparency of money in politics. But sadly, the problem of dark money has been on the rise in part because the IRS and the FEC have been fumbling the ball. The IRS's problem is not being particularly adept at policing who is a 527, which generally have to disclose their donors, and who is a 501(c)(4) or a 501(c)(6), which don't have to disclose.
The FEC's problem is two weird rules that thwart the pro-disclosure intent of the federal election statutes (FECA and BCRA) which require disclosure of underlying donors, and yet oddly the FEC rules do not require this transparency. And the FEC tends to deadlock when the issue is raised anew.
It doesn't help that the SEC is sitting on its hands refusing to write a rule on corporate political spending transparency despite over a million requests from the public to do so. And hence the midterm election had at least $100 million in dark money again. That's a lot of chits for the dark money spenders to call in after the election.
Even though there is plenty of dark money in elections, apparently there are plaintiffs out there who would like election spending to be even more opaque and so they are litigating the issue again and again. In Delaware, plaintiffs chalked up a win against transparency in a lower court in a suit against a new state law. Dark money can go to support anyone, but the ability to spend in obscurity means a lack of accountability for big political players. And I suspect that lack of accountability is bad for the Lisa Simpsons of the world.
You might be thinking, Barack Obama was a Lisa Simpson or Bill Clinton was a Lisa Simpson. And perhaps you are right. But because of the Supreme Court, the rules of the game that existed when they were first elected don't exist anymore and lots of protections, from the ban on direct corporate contributions to the SEC's limits on pay-to-play to basic transparency, are all on the chopping block and could fall in the next two years-- just in time for the real presidential election back here in the real world. Which all leads me to conclude, we won't have a real Lisa Simpson as President anytime soon.
Ciara Torres-Spelliscy is a Brennan Center Fellow and an associate professor of law at Stetson University College of Law where she teaches Election Law. She is on twitter @ProfCiara.