Looking Backward to Look Forward
In 2020, the ABA Standing Committee on Election Law conducted a panel and study of Gender Parity in Election Laws as part of the ABA’s commemoration of the hundredth anniversary of the Nineteenth Amendment, which can be viewed at ABACLE. The Standing Committee and its Advisory Commission comprise a unique entity in that it is structured as a bipartisan body. Members are not only appointed based on their election law experience but also to ensure that the committee remains balanced in political ideology. The work of the Standing Committee centers on all aspects of the electoral process, thus, as advances in technology and changes in the electorate occur, the committee remains committed to providing the ABA with the most current programming and policy recommendations.
Panelists included Elizabeth M. Yang, a former deputy director of the ABA Division of Public Services, president of WStrong LLC, and author of Looking at the Nineteenth Amendment through a Twenty-First Century Lens; and Amber Maltbie, a partner at Nossaman LLP and a campaign finance and election law expert who authored Campaign Finance Laws and Gender Disparity in Elections for the ABA’s IMPOWR project (the International Models Project for Women’s Rights). Jason Kaune, a partner at Nielsen Merksamer LLP and incoming chair of the ABA Standing Committee on Election Law, moderated the program.
The panel began with Yang’s observation that if the United States is to overcome the gender gap in political representation, we must explore solutions that will encourage women to run for political office. “We must take greater strides to raise the number of women running for office from the current meager percentages of political representation among the demographic,” she asserted. The panel examined the numbers.
The number of women voting has been greater than men in all presidential elections since 1964. These and other statistics would indicate that the Nineteenth Amendment has been successful and its promise achieved. However, the genesis of the Nineteenth Amendment, born of the first women’s rights convention at Seneca Falls, New York, was to give women complete and equal rights to men. This means full and equal participation in the political process, which encompasses more than voting.
While women make up just over 50 percent of the U.S. population according to census data, the percentage of women in U.S. Congress is only 24.4 percent. Women have made up a larger percentage of representatives of the Democratic Party and in the west and northeast regions of the country but still fall woefully behind the number of male representatives. In the 2022 election cycle, Vermont appears poised to elect its first woman representative to U.S. Congress, making it the last state in the nation to do so. Women have held greater percentages of elective office in state legislatures and other state elective offices than in the U.S. Congress, however, it is still lower than 30 percent of elected positions.
The panel then examined legal obstacles that may explain these unbalanced numbers, with a focus on state laws. While the federal government makes laws related to federal elections, Article I, Section 4, Clause 1 of the U.S. Constitution provides that states have the primary responsibility over the administration of elections through time, place, and manner prescriptions. Many election rules are either left to the states, or state and federal laws inhibit parallel structures. Absent federal action, state-level law is where these changes can most realistically be made.
Case Study in Campaign Finance
The Federal Election Campaign Act passed originally in the early 1970s regulates campaign finance principally with respect to federal elections, and the Federal Election Commission (FEC) administers and enforces this law along with the U.S. Department of Justice. States have implemented their own campaign finance laws applicable to state and local elections, which are enforced to different degrees by individual state agencies, such as California’s Fair Political Practices Commission (FPPC).
Since the landmark U.S. Supreme Court case Buckley v. Valeo, 424 U.S. 1 (1976), most campaign finance laws and regulations are subject to the highest levels of judicial scrutiny under the First Amendment. Subsequent cases, particularly the Court’s decision in Citizens United v. Federal Election Commission, 558 U.S. 310 (2010), have had the effect of limiting the ability of state governments to enact restrictions on campaign spending that could aid competitiveness in elections.
Even within these current parameters, the panel discussed the use of campaign funding as having unequal impacts on gender. Most jurisdictions recognize that campaign contributions are held in public trust and cannot be used for personal expenses. Federal law has allowed campaign funds to be used for reasonable expenses incurred while campaigning, such as specialty clothing, parking tickets, and fundraising events. For the first time, in 2018, the FEC recognized childcare as a campaign expense in Advisory Opinion 2018-06. Maltbie explained the long and difficult road toward adopting legislation to achieve a similar end in California. In 2019, the California legislature passed AB 220, supported by the FPPC, which allowed candidates to pay for family-related services like daycare with campaign funds. Other states have now adopted similar laws and opinions. For women, who are often considered the primary caretaker in the home regardless of professional success, the passage of these laws represents a significant advancement of campaign finance regulations to make running for office more feasible.
Other Political and Election Laws
In addition to campaign finance law, other areas of political and election law might be improved to promote women’s participation in the political process in a non-partisan way.
Women still feel either unwelcomed or undermined in the halls of power. As a result of the “Me Too” movement, at least nine states, from Illinois to New Mexico, enacted legislation or training mandates aimed at enhancing sexual harassment policies for the benefit of lobbyists. California adopted such a law after more than 140 women—a mix of lawmakers, lobbyists, Capitol staff members, and political consultants—signed a letter denouncing the pervasive culture of sexual harassment in politics. The law and policy changes included broader and more precise definitions, clearer reporting and investigation procedures for complaints, and training for lobbyists. The panelists agreed that while important steps, these advancements could use greater development. They range in their requirements and uniformity and are focused on lobbyists while often excluding lawmakers and their staff. After a wave of initial adoptions in 2017 and 2018, at the height of the movement, political will to address this issue has waned.
The panelists also suggested examining government ethics laws. As Kaune observed, simply revising language to be gender neutral does not address substantive concerns. For example, conflict-of-interest laws often attribute spousal income to a public official to determine if a conflict exists. Such a construct can create barriers for elected officials to perform their duties or could dissuade someone from seeking office in the first place if their spouse’s source of income is likely to create a conflict. In a society where men are likely to have their own careers even while married to a professional woman, these conflict-of-interest laws offer another reason why women could opt out of elected office.
Solutions and Proposals
The panel closed with a discussion of solutions and proposals.
Gender quotas, goals, or other benchmarks for the number of women in elected office in a particular body have been adopted in other countries, have been championed by progressives, and could help balance current disparities in the statistics. However, such systems might be considered undemocratic in our society and may not be viable under our constitutional framework. Already, conservatives have scored victories in court by challenging gender quotas on corporate boards.
Greater economic security would also lessen the burden on women of running for office. Again, progressives observe that unrestricted self-funding of campaigns in addition to men’s access to larger funding networks have a negative impact on women’s participation in the electoral process. Many countries and even some local jurisdictions in the United States use systems of public financing for campaigns to open the door to new “unmonied” candidates. However, with the significant effect of unlimited independent expenditures, it is unknown if public financing would ultimately reduce gender disparities. At a minimum, additional laws that offer women the possibility to balance other careers while seeking elective office could minimize the economic impediment to running a campaign.
The panelists returned to a central theme of innovation and evolution at the state level. As more women hold office, particularly locally, and a new generation with differing views of gender and family relationships ascends, political and election laws will be scrutinized under a new lens. In the words of the Nineteenth Amendment, while the federal government guarantees that the right to vote cannot be abridged on account of sex, state legislatures can further guarantee that the right to hold office is not disadvantaged by one’s gender.
Future Study Needed
The American Bar Foundation (ABF) has created the Ruth Bader Ginsburg Endowed Fund for Research in Civil Rights and Gender Equality to honor the justice’s lifelong efforts and champion scholarship that will engender a more fair, equitable, and just future. The fund will support high-quality research and programming in civil rights and gender equality. Whether campaign finance, lobbying, government ethics, and election laws require more revisions to match our times is an obvious area for more inquiry.