Testimony of Ian Vandewalker

Senior Counsel, Brennan Center for Justice at NYU School of Law

Submitted to the New York City Charter Revision Commission

June 14, 2018

Re: Campaign Finance

The Brennan Center for Justice at NYU School of Law1 appreciates the opportunity to
testify before the New York City Charter Revision Commission for this issue forum on campaign
finance.

Below, we describe the successes of the City’s public campaign financing system, a
model that has been copied by jurisdictions across the country. We then note recent challenges
for the program. Finally, we offer proposals to strengthen the system and its ability to help
ensure the City’s elected officials are responsive to their everyday constituents, not just big
donors and special interests.

Public financing in New York City has strengthened democracy

The successes of New York City’s public financing program have been widely
recognized,2 and other large cities, like Los Angeles and San Francisco, have instituted similar

1
The Brennan Center is a nonpartisan public policy and law institute that focuses on fundamental issues of
democracy and justice. The Brennan Center’s Money in Politics project works to reduce the undue influence of
money in our democracy. This testimony does not purport to convey the position of New York University School of
Law, if any.
2
See, e.g., Michael J. Malbin et al., Small Donors, Big Democracy: New York City’s Matching Funds as a Model for
the Nation and States, 11 ELECTION L.J. 3 (2012), http://www.cfinst.org/pdf/state/NYC-as-a-Model_ELJ_As-
Published_March2012.pdf.

1
matching programs. Most recently, the District of Columbia and two counties in Maryland
enacted such programs.3

New York’s small donor multiple match system fundamentally strengthens democracy in
the City by acting as a counterweight to the power of wealth to influence government. By
making regular people an important part of funding campaigns, the program brings more
citizens, especially those from traditionally disenfranchised communities, into politics and
amplifies the people’s control over their government. Public financing in New York has
drastically reduced candidates’ reliance on big checks and special interest donors.

The system has eliminated the financial barrier to running that can end someone’s
candidacy before it starts. The prospect of raising large sums can discourage potential
candidates, and the campaign finance arms race gives an unfair advantage to wealthy individuals
and those with professional networks, like lawyers.4 Researchers have found that fundraising
pressure is disproportionately discouraging to potential candidates who are female or African
American, or who represent less-affluent districts.5 Public financing breaks down these barriers
by making broad community support, even from less affluent individuals, more valuable in
financing campaigns. In New York, public financing has likely helped bring about a diverse and
representative candidate pool.6

Public financing boosts participation in the City’s elections by a broad range of citizens,
including those who are unlikely to donate money in a system dominated by large contributions.
Matching funds give candidates a powerful enticement to encourage new donors to give. There is
even evidence that public financing can encourage people to vote. A study in New York City
found that registered voters who made a contribution in the Democratic primary were almost
three times as likely to vote.7 The program has succeeded in attracting small donations from a
larger and more diverse group of citizens.8

3
See Peter Jamison, D.C. mayor, reversing course, signs law creating publicly financed campaigns, WASH. POST,
Mar. 13, 2018, https://www.washingtonpost.com/local/dc-politics/dc-mayor-reversing-course-signs-law-creating-
publicly-financed-campaigns/2018/03/13/699b6e90-26f5-11e8-b79d-f3d931db7f68_story.html; “Howard County,”
Fair Elections Maryland, http://fairelectionsmaryland.org/about-us/howardcounty/; Phil Andrews, “Montgomery
County candidates test public financing,” BALTIMORE SUN, June 4, 2017,
http://www.baltimoresun.com/news/opinion/oped/bs-ed-montgomery-financing-20170604-story.html.
4
Adam Bonica, Professional Networks, Early Fundraising, and Electoral Success, 16 ELEC. L. J. 153 (2017).
5
ASHA DUMONTHIER, CHANDRA CHILDERS & JESSICA MILLI, THE STATUS OF BLACK WOMEN IN THE UNITED
STATES, 4-5 (2017), https://www.domesticworkers.org/sites/default/files/SOBW_report2017_compressed.pdf.
6
NEW YORK CITY CAMPAIGN FINANCE BOARD, BY THE PEOPLE: THE NEW YORK CITY CAMPAIGN FINANCE
PROGRAM IN THE 2013 ELECTIONS 47 (2014), http://www.nyccfb.info/PDF/per/2013_PER/2013_PER.pdf; ANGELA
MIGALLY & SUSAN LISS, BRENNAN CENTER FOR JUSTICE, SMALL DONOR MATCHING FUNDS: THE NYC ELECTION
EXPERIENCE 21 (2010), https://www.brennancenter.org/publication/small-donor-matching-funds-nyc-election-
experience; NEW YORK CITY CAMPAIGN FINANCE BOARD, NEW YORKERS MAKE THEIR VOICES HEARD: A REPORT
ON THE 2009 ELECTIONS 141-42 (2010), http://www.nyccfb.info/PDF/news_media/reports/2009_PER.pdf.
7
“Public Financing: What’s the Return on Investment at the Voting Booth?” New York City Campaign Finance
Board, Aug. 26, 2015, http://nyccfb.info/media/blog/public-financing-ROI-voting-booth. A multi-state study of
block-grant systems found that voters are more likely to vote in elections featuring a publicly funded candidate.
Citizen funding reduces roll-off, which is the phenomenon of voters abstaining in down-ballot races after voting in
the higher visibility elections. MICHAEL G. MILLER, SUBSIDIZING DEMOCRACY: HOW PUBLIC FUNDING CHANGES

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Challenges for the public financing program

Despite this record of success, New York’s public financing program faces some
challenges, due in part to deregulatory decisions by the U.S. Supreme Court.

One issue is the rise of independent expenditures unleashed by the Citizens United
decision.9 Independent expenditures, or outside spending by groups other than candidates, have
increased in the last few election cycles in New York, although less than in federal elections.
This has led some to worry that fewer candidates will participate in the public financing
program, which imposes expenditure limits on participating candidates, because they fear they
will be swamped by unlimited outside spending on attack ads.

Another ill-advised Supreme Court decision removed what is perhaps the most obvious
policy response to the worry about big outside spending. In a 2011 case, the Court ruled that
public financing programs are not permitted to have “trigger” provisions that increase the public
funds for candidates who face big spending by opponents and outside groups.10

A distinct issue consists of potential weaknesses in the program’s ability to encourage

participating candidates to rely on small donors and public funds, rather than big money. Since
the 2009 cycle, the City’s six-to-one match for small donations has fueled campaigns and
reduced the percentage of campaign money coming from big donors and special interests.11 But
as research by Prof. Michael Malbin of the Campaign Finance Institute shows, mayoral and other

ELECTIONS AND HOW IT CAN WORK IN THE FUTURE 77 (2013) (finding roll-off decreases approximately 20 percent
in Connecticut when there is a citizen-funding participant running).
8
In 2012, the Brennan Center and the Campaign Finance Institute studied the New York City matching program,
finding that “[s]mall donors to 2009 City Council candidates came from a much broader array of city neighborhoods
than” donors to state legislative candidates representing the same communities (who do not run under a public
financing system). Elisabeth Genn, Michael J. Malbin, Sundeep Iyer, & Brendan Glavin, Brennan Ctr. for Justice &
Campaign Fin. Inst., Donor Diversity Through Public Matching Funds 4 (2012),
http://www.brennancenter.org/sites/default/files/legacy/publications/DonorDiversityReport_WEB.PDF. The
program has encouraged participation by donors from communities with high proportions of racial minorities and
low-income residents—communities that do not traditionally contribute to campaigns in large numbers. Michael J.
Malbin et al., Small Donors, Big Democracy: New York City’s Matching Funds as a Model for the Nation and
States, 11 Elec. L.J. 3 (2012) (finding that donors in New York City’s citizen funding program are demographically
representative of the city as a whole); New York City Campaign Finance Board, By the People: The New York City
Campaign Finance Program in the 2013 Elections 41 (2014),
http://www.nyccfb.info/PDF/per/2013_PER/2013_PER.pdf (noting large numbers of first-time contributors and
small contributors).
9
Citizens United v. FEC, 558 U.S. 310 (2010).
10
Ariz. Free Enter. Club’s Freedom Club PAC v. Bennett, 564 U.S. 721 (2011).
11
In 2009 and 2013, participating candidates took in more than 60 percent of their funds from small donors and the
public match. Michael Malbin, Campaign Finance Institute, Testimony before the New York City Campaign
Finance Board, Feb. 13, 2013, http://www.cfinst.org/Press/PReleases/14-02-
13/Testimony_before_the_New_York_City_Campaign_Finance_Board_Says_Small_Donor_Matching_Funds_a_Su
ccess_but_the_City_Should_Look_at_Changes_Moving_Forward.aspx; MICHAEL J. MALBIN, PETER W. BRUSOE &
BRENDAN GLAVIN, CAMPAIGN FINANCE INSTITUTE, WHAT IS AND WHAT COULD BE: THE POTENTIAL IMPACT OF
SMALL-DONOR MATCHING FUNDS IN NEW YORK STATE ELECTIONS (2013),
http://www.cfinst.org/pdf/state/NY/CFI_Impact-Matching-on-NYS.pdf.

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citywide candidates have not reduced their reliance on big checks as much as city council
candidates.12 In 2013, while council candidates raised 64 percent of their money from small
donors and matching funds, mayoral candidates managed only 25 percent.13 And council
candidates’ reliance on small donors dropped somewhat in 2017, apparently due to incumbents
opting out of the program.14 Because of the term limit cycle, more incumbents ran in 2017 than
2013, and 14 of them did not participate in public financing in 2017, as compared to 5 in 2013.15

Proposals to strengthen public financing

We propose several potential improvements to the City’s public financing system, which
could be adopted singly or in combination.

1. Reduce contribution limits for citywide offices and borough presidents

The Brennan Center recommends lowering all contribution limits to the level for city
council candidates. Council candidates are currently limited to contributions of $2,850, while
limits for borough president candidates are $3,950, and mayoral limits are $5,100. The level for
council candidates is appropriate for all city candidates; it is commensurate with the federal
contribution limits imposed on congressional and presidential candidates. Higher contribution
limits invite an appearance of corruption and undue influence from wealthy donors and special
interests.

Lowering contribution limits will obviously make candidates rely less on very large
contributions. It will strengthen the public financing program by increasing the relative incentive
of candidates to opt in and pursue small donors rather than big money.

2. Require participating candidates for citywide offices and borough presidents to raise
contributions from geographically diverse communities

For offices that represent more than a council district, one of the criteria for candidates to
qualify for public funds should be raising matchable contributions from a geographically diverse
set of communities in the constituency. This would increase candidates’ reliance on small donors
because it would require them to fundraise in at least some less-affluent neighborhoods, rather
than relying on support from the traditional large-contributor strongholds like the Upper East
Side.

12
Michael J. Malbin & Michael Parrott, Small Donor Empowerment Depends on the Details: Comparing Matching
Fund Programs in New York and Los Angeles, 15 THE FORUM 219 (2017),
https://www.degruyter.com/downloadpdf/j/for.2017.15.issue-2/for-2017-0015/for-2017-0015.pdf.
13
Id. at 240.
14
Michael Malbin, Campaign Finance Institute, Testimony before the New York City Campaign Finance Board,
Jan. 29, 2017, http://www.cfinst.org/pdf/testimony/NYCCFB%20Testimony_Malbin_29Jan2018_revised_with-
Appendix.pdf.
15
Id. at 3.

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 For example, the qualifying criteria for mayoral candidates could require at least 25
qualifying contributions to come from each of 20 different council districts.16 The numbers
would have to be adjusted proportionately for the other citywide offices and borough presidents.
This mechanism would obviously best encourage greater reliance on small donors if it were
combined with reductions in contribution limits for candidates for the citywide offices and
borough president.

3. Increase the public funds available in all elections

Increasing the public funds cap throughout the system would strengthen the system by
helping maintain a high level of candidate participation, since candidates would be encouraged to
participate by the greater availability of public funds. In 2016, Councilmember Ben Kallos
introduced a bill that would accomplish this by raising the public funds cap from 55 percent of
the spending limit to being capped only by the spending limit.17

Since increasing available public funds would simply add more money to the small-donor
matching system, it would expand candidates’ incentive to solicit small donations. Of course, no
amount of public funds can match outside spending, since the latter is unlimited.18 Nevertheless,
raising the public funds cap will encourage candidate participation and make it easier for
candidates to raise enough funds to spend up to the spending limit while focusing on small
donors.19

4. Make supplemental public funds available for truly small contributions

Candidates who reach the public funds cap could become eligible for a supplemental
block of public funds, with a commensurate increase in the spending limit, that candidates can
earn only by raising money from donors who do not give more than $175. This would strengthen
the system by making more funds available to candidates who may face big opposing
expenditures, while requiring candidates to work harder to raise small money to earn those extra
funds. It would encourage candidate participation while also boosting the incentive to focus on
small donors.

16
See Michael J. Malbin, Campaign Finance Institute, Statement on Proposal to Amend New York City’s Public
Matching Fund System for Elections, April 2017, https://benkallos.com/sites/default/files/Testimony-Int_1130-
Campaign_Finance_Institute.pdf.
17
Int. No. 1130-A (2016), http://legistar.council.nyc.gov/LegislationDetail.aspx?ID=2637108&GUID=11C13B83-
99DB-4671-AA99-CF5B5827BBF4.
18
In 17 of the 41 primary elections for City Council in 2013, independent expenditures totaled more than twice the
spending limit. NEW YORK CITY CAMPAIGN FINANCE BOARD, BY THE PEOPLE: THE NEW YORK CITY CAMPAIGN
FINANCE PROGRAM IN THE 2013 ELECTIONS 77 (2013),
https://www.nyccfb.info/sites/default/files/pressfiles/2013_PER.pdf.
19
Under the current rules, a substantial portion of participating candidates do not even earn the entire available
public funding amount. In 2013, 83 of 129 participating city council candidates took grants within 10 percent of the
cap, meaning approximately 36 percent of participants did not even come close to the maximum. Samar Khurshid,
Proposal Would Boost Public Campaign Matching Funds, GOTHAM GAZETTE, Apr. 28, 2017,
http://www.gothamgazette.com/city/6898-proposal-would-boost-public-campaign-matching-funds (quoting
Campaign Finance Board Executive Director Amy Loprest).

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 This proposal has the potential to give more resources to candidates targeted by big
outside spending. The supplemental funds are not triggered by others’ spending, since the Court
has prohibited that policy.20 But this proposal addresses the problem in a new way by allowing
candidates to work for extra public money by raising more small money if they are targeted by
big spending—or motivated by some other factor.

The extra block of funds should be capped and candidates who qualify should get a
corresponding increase in the expenditure limit. The supplemental funds would be granted as a
match of only donations from contributors who give no more than $175. Normally, the system
matches the first $175 and contributors may keep giving up to the applicable contribution limit.
If these supplemental funds matched only money from truly small donors, it would provide a
strong incentive for candidates to seek support from a wide range of constituents, regardless of
affluence. This concept is similar to mechanisms in Rep. Sarbanes’ federal Government by the
People Act21 and the recent changes strengthening Maine’s public financing program.22

This option could provide more resources to respond to outside spending. The
supplemental funds would not be tied to outside spending levels, but any candidate who feels
threatened by outside spending would be motivated to work for the extra money. Since it might
prove difficult for candidates to raise enough small contributions to make a difference in high-
spending races, we suggest a match ratio higher than six-to-one for the supplemental funds.

20
Bennett, 564 U.S. at 747.
21
Government by the People Act of 2017, H.R. 20, 115th Cong. § 531 (2017).
22
Alanna Durkin, Maine Group Looks to Bolster Public Financing Election Law, SUN JOURNAL (Lewiston, Maine),
Jan. 19, 2015, http://www.sunjournal.com/ballot-question-maine-group-aims-bolster-struggling-public-financing-
elections-law/.