JLPP 2021 Legislation Competition Runner-Up
March 10, 2021
This piece won second place in the Journal’s legislation competition accompanying its March 5 symposium titled “Politics, Power, and Women’s Leadership.” Contestants were asked to respond to Rep. Katie Porter’s “Help America Run Act.”
The United States Congress is disproportionately white and male.1Katherine Schaeffer, Racial, Ethnic Diversity Increases Yet Again with 117th Congress, Pew Rsch. Ctr. Fact Tank (Jan. 28, 2021), https://www.pewresearch.org/fact-tank/2021/01/28/racial-ethnic-diversity-increases-yet-again-with-the-117th-congress/; Carrie Elizabeth Blazina & Drew DeSilver, A Record Number of Women Are Serving in the 117th Congress, Pew Rsch. Ctr. Fact Tank (Jan. 15, 2021), https://www.pewresearch.org/fact-tank/2021/01/15/a-record-number-of-women-are-serving-in-the-117th-congress/. Recently, Congress has gained more women and people of color, but it still does not come close to mirroring the diversity of its constituents. Even as these demographic trends gradually improve, the wealth of members of Congress continues to grow: As of 2018, their median net worth was at least five times that of the average American.2David Hawkings, Wealth of Congress: Richer Than Ever, but Mostly at the Very Top, Roll Call (Feb. 27, 2018, 5:05 AM), https://www.rollcall.com/2018/02/27/wealth-of-congress-richer-than-ever-but-mostly-at-the-very-top/
Running for Congress is difficult, particularly for women and working-class candidates. Election campaigns in the United States run far longer than those in other democracies, many of which limit the lengths of campaigns, from five months in Mexico to twelve days in Japan.3Danielle Kurtzleben, Why Are U.S. Elections So Much Longer Than Other Countries’?, Nat’l Pub. Radio (Oct. 15, 2015, 10:16 AM), https://www.npr.org/sections/itsallpolitics/2015/10/21/450238156/canadas-11-week-campaign-reminds-us-that-american-elections-are-much-longer. People without considerable savings may find it impossible to support themselves and their families if they quit their jobs to undertake extended campaigns.
The United States also has a comparatively weak social safety net. It is the only major industrialized nation without universal, government-funded or -mandated healthcare coverage using a unified payment system.4Christopher Cai et al., Projected Costs of Single-Payer Healthcare Financing in the United States: A Systematic Review of Economic Analyses, 17 PLoS Medicine 1 (Jan. 15, 2020), https://doi.org/10.1371/journal.pmed.1003013. Nearly half of Americans receive healthcare coverage through an employer,5Kaiser Family Foundation, Health Insurance Coverage of the Total Population (last visited Feb. 21, 2021), https://www.kff.org/other/state-indicator/total-population/. so quitting to run for office can lead to loss of healthcare coverage for candidates and their families. In addition, the United States has lower levels of governmental childcare support and higher childcare costs than most peer nations.6Olivier Thevenon, Family Policies in OECD Countries: A Comparative Analysis, 37 Population Dev. Rev. 1, 57, 79–80 (Mar. 2011). A loss of income and evening and weekend campaign events can put a significant burden on parents running for office.
These barriers to running for office have a particularly extensive impact on women. American women disproportionately take on childcare responsibilities and sacrifice their careers to care for their children.7Kim Parker, Women More Than Men Adjust Their Careers for Family Life, Pew Rsch. Ctr. Fact Tank (Oct. 1, 2015), https://www.pewresearch.org/fact-tank/2015/10/01/women-more-than-men-adjust-their-careers-for-family-life/. The high cost of healthcare also affects women more than men.8Amy Glynn et al., Taming Healthcare Costs: Promise and Pitfalls for Women’s Health, 25 J. Women’s Health 110, 111 (Feb. 1, 2016). This likely contributes to the gender disparity in Congress, where just 27 percent of members are women.9Blazina & DeSilver, supra note 1.
Existing Election Law
Federal election law generally bans candidates from putting campaign funds to personal use. However, in 2002, to encourage people who are not wealthy enough to forgo income to run for office, the Federal Elections Commission (FEC) voted to allow non-incumbent candidates for Congress to collect a salary from their campaigns.10Katherine Q. Seelye, Candidates Allowed to Have Salaries from Campaigns, N.Y. Times, Nov. 26, 2002, at A22. The regulations cap payments at the candidate’s income in the previous year or the salary of the office the candidate is seeking, whichever is lower.11Permitted and Prohibited Uses of Campaign Accounts, 11 C.F.R. § 113.1(g)(1)(i)(I) (2021).
Relatively few candidates appear to have taken advantage of this provision.12Ashley Balcerak, You’re Young and Broke. Here’s How to Still Win a Congressional Seat, Center for Public Integrity (Dec. 10, 2018), https://publicintegrity.org/politics/young-broke-money-win-congress-election/. One potential explanation could be the cost of running a campaign: a candidate’s salary reduces available funding for other campaign expenses. Taking a salary may also carry a stigma. Voters tend to be strongly opposed to salary increases for legislators,13Morgan Cullen, Pay Problem, Nat’l Conf. of State Legislatures (Jan. 2011), https://www.ncsl.org/research/about-state-legislatures/pay-problem.aspx. and this antipathy likely extends to candidates.
The FEC-permitted salary may still be too low to make it financially feasible for many candidates to run. Basing the salary cap on the candidate’s prior year income means that people who worked low-wage jobs are severely limited in how much they can collect, while those who were unemployed cannot collect a salary at all.14Fed. Elections Comm’n, Draft Advisory Opinion 2008-02 on Payment of Salary to Previously Unemployed Candidate (2008) (never formally issued as the Commission did not have a quorum at the time). In addition, candidates are only permitted to collect salaries starting on the primary election filing deadline, even though, in practice, campaigns often start much earlier.15Rachel M. Cohen, A Campaign Finance Rule Makes Life Much Harder for Working Class Challengers, The Intercept (Jan. 16, 2020, 2:19 PM), https://theintercept.com/2020/01/16/campaign-finance-law-wealthy-working-class-candidates/.
Help America Run Act
In 2018, the FEC issued an advisory opinion allowing Liuba Gretchen Shirley, a candidate for Congress, to use campaign funds to pay for childcare expenses incurred during the campaign.16Fed. Elections Comm’n, Advisory Opinion 2018-06 on Use of Campaign Funds for Childcare Expenses (2018). The Commission ruled that such expenses did not constitute “personal use,” as her candidacy directly resulted in the need for a full-time caregiver.
The Help America Run Act, passed by the House of Representatives in 2019, would essentially codify the FEC’s advisory opinion, amending the statute to allow candidates to use campaign funds for care services for their children, elderly relatives, and other dependents, as well as to pay for health insurance premiums.17Help America Run Act, H.R. 1623, 116th Cong. (2019). The Act’s stated purpose is to “ensure that all Americans who are otherwise qualified to serve this Nation are able to run for office, regardless of their economic status.”18Id. However, some changes are necessary to ensure it achieves its objectives.
The 2019 version of the Act would cap campaign funds that candidates can spend on caregiving and healthcare at the amount they would be permitted to draw as a salary and reduce their salary commensurate with these expenses. Currently, candidates can collect a salary and put that money towards expenses like childcare and healthcare; under the Act, campaigns could instead pay for these expenses directly, but candidates’ salaries would decline. People who had been unemployed in the previous year would not be able to collect a salary or use campaign funding on caregiving or healthcare expenses. As such, the Act would have little overall impact on the affordability of running for office.
Congress should pass a version of the Act that does not tie campaign spending on caregiving and healthcare to candidate salaries. This would ensure candidates can pay for living expenses and avoid the added burdens of losing employer-provided health insurance and incurring childcare costs during long hours on the campaign trail. The wealthy can keep up with such expenses, covering them with savings or passive income, but, for many Americans and especially for women, these rules would have a major impact.
Other related changes could also help make it easier for working-class Americans to run for office. First, regulations currently prohibit collecting a salary before the primary filing deadline, ignoring the reality that campaigns often start long before then.19Cohen, supra note 15. Extending that period would allow all candidates to begin campaigning full-time earlier, helping them compete on an equal footing with wealthy candidates who do not need a salary. Second, under current law, low-income people can draw a much lower salary than their wealthy opponents. Setting a minimum salary cap at the area median income of the district in which a candidate is running would even the playing field. Finally, to address the risk of stigma of taking a salary, Congress could consider actually requiring candidates to take a salary during the campaign, ensuring that a wealthy candidate cannot use their poorer opponent’s salary against them. Any such requirement would need to be carefully studied and potentially limited in its applicability.
The rules against using campaign funds for personal purposes are in place for good reason. Campaign donations should go towards getting a candidate elected, not lining the candidate’s pockets. However, a reasonable salary, healthcare coverage, and reimbursements for caregiving expenses are critical to enabling women and less wealthy people to run for office. The potential for abuse is limited, as campaign spending is public record. Moreover, campaigns today are so expensive to run that they have every incentive to minimize the amount of spending on candidate salaries and other expenses.
These are far from the only reforms needed in the United States’ election system. Larger issues like the outsized role of money in politics will require many years to resolve. However, an amended Help America Run Act could significantly reduce barriers to women, people of color, and working-class people who want to run for office, helping Congress look more like the people it represents.