Practical Thoughts on Fixing Campaign Finance

The recent spate of activity at the FEC regarding regulations and litigation, namely the Club for Growth suit, has brought about some new thoughts about how real campaign finance reforms should be implemented. Specifically, we are on the wrong path entirely and unless we make a turn for the better, significant political freedoms will become limited.

Like many people, including Senator Mitch McConnell and others, I have always thought of campaign finance matters from a First Amendment viewpoint, but that is where many of the similarities end. I do not subscribe to the viewpoint of "money equals speech." Rather, for me, the First Amendment right impacted is one of association. The concept of me giving my hard earned money to a candidate is symbolic of my alliance with that candidate. I am saying to the candidate and the world, "by giving this money to you, I am publicly supporting you and your candidacy." If I want to give more than $2,000 to show how much I support that candidate, why can't I?

Here has been the progression of campaign finance regulation on the federal level. First, there were no regulations and the concern was that the citizenry did not know who was funding the campaigns of candidates for public office. Thus came the Federal Election Campaign Act, designed to prevent corruption or the appearance of corruption in the system. The big part of this law was disclosure of sources of funds. I am a big believer in this system of disclosure as it is open to the press and public.

However, over time, this kind of activity proved limiting and the concept of soft money was born. Soft money soon overtook the regulated activity under the FECA and so we got BCRA which banned overtly political actors from using soft money. But as the Court said in McConnell v. FEC, money, like water, will always find an outlet.

Soon came the pernicious influence of 527 organizations. The FEC tried regulating them, but that has raised more questions than it answered. Now they are trying to sue to get the courts to help delineate their regulatory authority. Assuming some regulations are passed on 527s, what is next?

As can be seen, each step of regulation attempting to prevent the appearance or actual corruption represents more regulatory creep. The problem with this regulatory creep is that the regulations deal with core, protected political rights, that of speech and association. The fundamental basis of the First Amendment and the structure of our Constitution is to permit political speech, regulating it only so far as necessary. Yet, in the realm of campaign finance regulation, we have long abandoned pure necessity.

The "reform" community's efforts, while certainly their right to advocate for their viewpoints, has debased the concept of an informed voter. Not that the campaign finance reformers are the only groups to have eroded the confidence in voters; over the past 40 years, parties, politicians and even issue advocates have treated the voter like idiots or children that need to be protected from themselves or others. The regulatory creep in campaign finance is nothing more than a type of paternalism, implicitly telling voters, "You can be trusted to determine for yourselves, so we will have rules to tell you."

To me we have a three option tree for campaign finance reform. The options are:

  1. Maintain the current path--that of regulatory creep and run the risk of bad cases making bad law in the courts.
  2. Go to a completely publicly financed campaign finance system.
  3. Move to a "no limits, full disclosure" model espoused by Congressman John Doolittle.

As I have said, option 1 is not an option.

Option 2, one favored by some, creates regulatory problems of its own. First, how will the public funding work? How will disparities between campaign costs for different congressional districts and states be accounted for? It is far more expensive to run a campaign for office in New York City than it is in rural Nebraska. How will candidates qualify for public financing? What are the spending limits? What if a candidate opts out of the public financing? What recourse do his opponents have? In short, more problems may be raised by a publicly financed system.

That leaves us with the No Limits, Full Disclosure model. Under this model there would be no limits on campaign contributions, but full and rapid disclosure of contributions would have to be made via the internet and the FEC. Thus, the only limits on campaign contributions are what I call the "Red Face and Laugh" Test. A candidate could accept $1 million dollars from a contributor, but would have to face public scrutiny of his activities. If the candidate cannot explain his actions without embarrassment or laughter by his critics, then he can take it and the voters could then decide whether his views on the matter are corrupted or not.

Four months ago, I wrote this idea about campaign finance regulation. But I now have a better plan. Here are the elements of my modified plan:

  1. No contribution or expenditure limits at all. Any candidate, PAC or Party may raise funds in unlimited amounts. Corporations, unions and foreign nationals would still be prohibited from making contributions.
  2. All contributions in excess of $10,000 must be reported to the FEC within 24 hours. All contributions in excess of $5,000 up to $10,000 must be reported within 48 hours. All contributions between $2,000 and $5,000 must be reported in 72 hours. All candidates, PACs and parties must file reports according to currently promulgated schedules. These numbers come from currently written regulations regarding independent expenditures and late contributions. The availability and ease of internet based reporting and freely available software from the FEC and commercial software for managing campaigns would make this requirement quite easy.
  3. Ban the raising of all funds for re-election or election campaigns until the earlier of (1) the filing of candidacy papers with the FEC by any candidate other than an incumbent or (2) Jan. 1 of the year of the general election. Thus, if a candidate for any federal office files papers with FEC declaring their intent to run for office, at that point, all candidates, including the incumbent, may begin raising funds. But if no one declares against the incumbent until after Jan. 1 of election year, the incumbent may begin raising funds for re-election. Special election fundraising can only begin when the governor declares the vacancy and all candidates must start from scratch.
  4. PACs and parties may raise funds at all times, with no limits, but the same disclosure scheme noted above. The problem here is leadership PACs. Given the reality that these leadership PACs are alter egos of the member, I am inclined to create a separate category of PACs, officially called leadership PACs which would be subject to the same rules on fundraising as candidate committees. But I am flexible on this issue.
  5. Prohibit the carrying over of funds from previous elections. One common means to scaring off challengers is have a big bank balance, if all candidates have to start at zero, the early funding advantage for incumbents is eliminated. For those who are elected, the candidate must dispose of excess campaign funds by March 1 of the following year in the means currently allowed, usually throughout contribution to party committees, refunds to contributors, or gifts to charities.
  6. Repeal the Millionaire's Amendment. This to me is blatantly unconstitutional on equal protection grounds and on practical grounds is nothing more than a subtle incumbent protection racket.
  7. Those who are elected and have debts may raise funds to pay down the debts, but no more until the start of the next even numbered year.

My goal with this proposal is to accomplish two goals. First, reduce the incubency advantage as much as possible, facilitated by limiting the time in which a candidate may raise funds and making each candidate for office start at the same point, i.e. zero. Second, reduce regulatory creep in campaign finance. Disclosure of funding and activities works and provides the public with the opportunity to judge for themselves whether the candidate has been corrupted by his/her contributors.

Posted by Matt Johnston at September 21, 2005 3:06 PM
Comments
Comment #81808

Well, given my anti-incumbency bent, I see much merit in your proposal. Personally, I don’t think it goes far enough, though. Money, in reality, does equal speech, and more money equals megaphoned speech, creating unequal voices in a democracy.

My proposal is much simpler. Set a contribution amount equal to a sum which minimum wage workers can afford to contribute in a year’s time to a single party or candidate, say $250, and limit all contributions by individuals to this amount annually, and bar all other contributions. Period! Equal voice is largely achieved.

In addition legislate free airwave time to all registered candidates, and a minimum of 2 debates for all contested races should any two or more candidates agree to debate.

Campaign debt fundraising after elections to be limited to amount raised prior the election. This puts a cap on the amount of debt candidates will choose incur.

Elections will suddenly become all about platforms and policy issues again instead of high priced PR firm spin and BS, for the most part. Also, almost all American voters will have an equal voice in the ballot box and a relatively equal voice via money contribution.

Posted by: David R. Remer at September 21, 2005 5:19 PM
Comment #81810

Matt

We are basically on the same page as far as financing a campaign.

Your 7 point program has some good points and some points that could be abused.

Point #1 ok
Point #2==I feel that all donations above $1000 should be reported within 48 hours. This would be consistent and be harder to abuse.
Point #3==I feel that no funds could be raised before 365 days before the primary election and 180 days before a general election. To make this effective and affective all state election laws would become uniform concerning the time base. Also, if an incumbent were running to keep his office he would not have to resign. But if one is running for another office, then he would be ofligated by law to resign from the present position. For instance if Congressman John were to run for a seat in the Senate, he would have to resign from his House seat.
Point #4—This point is a point for negotiation.
Point #5—Any carryover must be turned over to any 501(c)3 organization within his Congressional District that provides needy services for the people in that district.
Point #6—OK
Point #7—And limited to the exact amount of those debts.

Posted by: tom at September 21, 2005 5:28 PM
Comment #81812

Matt,

I have to go along with David, but I would make the PAC’s and 527’s illegal as well.

I would also overturn Buckley v. Veleo. In 1976 the Supreme Court ruled that spending money to influence elections is a form of constitutionally protected free speech, which is largely beyond democratic control.

This has been paraphrased from;

http://reclaimdemocracy.org/rdc/index.php/Q&A_on_corporate_personhood_and_money_as_speech

It’s time to clean house. Corporate America has for years made our decisions for us, they need to realize that it is a privilage not a right to do business in this country. Record profits may be good for the stockholders but they don’t often reflect in more jobs or lower prices.

Posted by: Rocky at September 21, 2005 5:31 PM
Comment #81816

I tend to agree with David on this one although I would limit contrbutions to $100 per house hold and can only be made during the calender election year.
Absolutly NO PAC money
No contrubutions from business of ANY kind.
No campaigning until 30 days before the elections or primaries. This will cut the amount of money a canidate needs to spend or will be able to spend.

Posted by: Ron Brown at September 21, 2005 6:03 PM
Comment #81822

Matt:

This is a good comprehensive presentation of the problem and its possible solutions. Unlike you, though, I would prefer choice #2, public finance.

I’m not worried about regulatory creep, as you put it. Besides, if we had true public financing of campaigns, I don’t believe there would be much regulatory creep.

At any rate, regulatory creep bothers me less than the fact that those with more money will have more influence under choice #3. Those who contribute $1 million will likely gain more access than those who give $1.

This is patently unfair. We will not have a one man one vote system. In effect, the one who gives the most money has more “votes” than those who give less.

Posted by: Paul Siegel at September 21, 2005 6:45 PM
Comment #81823

Matt,
I too have to agree with david on this issue. Yet, I would take it one step futher and require each election to have a minimum of 1 televised debates with questions coming from the public during the campaigning phase of the election. This way if the canidates want to start in April they would be required to have 6 public debates. However, if they eclect to start campaigning in August, they would only be required to have 3. Maybe this would limit the year long campaigning that drives us all nuts and tells us nothing.

Posted by: Henry Schlatman at September 21, 2005 6:53 PM
Comment #81838

Look at all the Posters living in their dreams!!!

HA!!! Considering how much Corporate Money is flowing into the RNC, all I can say is DREAM ON!!!

Posted by: Aldous at September 21, 2005 8:39 PM
Comment #81925

Haha! POP! Leave it to Aldous to burst the bubble. :)

I don’t know if any of you talk to your representatives about campaign finance reform, but I suspect you have as much success as I do — none. But that doesn’t stop me trying.

Personally, I favor something like #2, Matt, but until there’s broad consensus for change, it doesn’t mean anything.

Posted by: American Pundit at September 22, 2005 9:29 AM
Comment #81942

Matt, your option may be better than what we have now in that at least it would be more transparent. This would be good for those of us who actually take the time to care about such things. The problem I see is that most folks would not do enought research to have that transparency make a difference. The uninterested masses don’t take the time to research these things now. If it were more available then some may but I think most would still not…

Sadly, the reality is that many people in this country base their vote off of a few commercials that they see before an election. Or, worse yet they don’t pay any attention to anything because they are already a “card carrying” .

All they will notice is that with the virtually unlimited budget Democrats and Republicans would have, these folks would see 10 times as many of these partisan commercials as there are now… I see this further cementing the 2 party dominated system which I believe is doing more harm than just about any other issue in national government today.

I’ll agree with Rocky (and Ron and David for that matter) on this… Very strict limits are the way to go in my opinion. This would open up the stage for more independents, other parties, and for that matter even party affiliated non-career politicians to actually have a chance against the “good ol boys” club of incumbants that currently resides in Washington.

As Aldous and AP pointed out though, talk is cheap. We the people will need nothing short of a political revolution in thinking to get these changes done. I see more and more who are growing tired of it though so who knows… Until then keep up with the futile writings to your reps! I know I will.

Posted by: BradM at September 22, 2005 11:02 AM
Comment #81975

BradM Said

The problem I see is that most folks would not do enought research to have that transparency make a difference. The uninterested masses don’t take the time to research these things now. If it were more available then some may but I think most would still not…

I agree Brad, but I am counting on the “gotch”-ness of the media. Every election cycle reporters queue up at the FEC to review campaign filings or spend hours trolling the net. Obscenely large contributions or contributions from more than one similar source will surely be reported on. Most people don’t research these things (and honestly I don’t do a lot of it myself outside of work), but the media will-rest assured.

David Remer Said:

Money, in reality, does equal speech, and more money equals megaphoned speech, creating unequal voices in a democracy.

Why is it in the realm of political campaign finance, there has to be equal voice? Everytime someone mentions a no-limit model of campaign finance, this is the first reply. In our system everyone has an equal right to participate—that is the only freedom guaranteed. Every issue involves people who care and people who don’t. Those who care, make the effort and yes expend the money to win. That is the heart of American politics. “Money is speech” is simply short hand for saying those without money have no voice in the process, which is simply wrong.

Finally, I am aware that campaign finance reform, either to my option two or option three is unlikely given the incumbent protection racket currently in place on Capitol Hill, but that doesn’t mean you don’t try. If people didn’t try, we would still have segregated schools, for example.

Posted by: Matt Johnston at September 22, 2005 2:20 PM
Comment #81977

Sorry everyone, I screwed up the HTML tags. The second paragraph of my last post was Brad’s words. The long block quoting David should include on the first paragraph of that block, the rest is my thoughts.

My apologies to both Brad and David, I did not intend to misquote you.

Posted by: Matt Johnston at September 22, 2005 2:22 PM
Comment #82022

Matt:

If we go to a publicly financed election system, I’m going to run for President every 4 years simply to bolster my finances, ala Lyndon La Rouche. I’d assume you’d have some requirements before giving out funds to anyone running—those are details that I don’t need to know about at this time as long as they are included.

The problem with some debates is the same…..who do you include. I’d assume some sort of “smell” test in order to get on the debate stage. If you have two supporters in the US, you shouldnt be on stage.

So anyway….Support me and we may not change a thing, we may not accomplish a thing, but we most definitely will have one hell of an inauguration party!

Posted by: joebagodonuts at September 22, 2005 4:37 PM
Comment #82033

Matt,

Why not level the playing field for Federal Elections. Same financial limits for all candidates.
Same amount of air-time.Limit number of people on a campaign team.Everything the same.The debates are public and the questions have to be asked by the public, not hand picked audiences, and journalists, not commentators or gay porn stars playing journalist but real well known journalists.
For state and local elections we go with the public finance idea.
Wouldn’t it be refreshing to hear about issues and solutions rather than swift-boat crap and spin?

Posted by: Andre M. Hernandez at September 22, 2005 5:15 PM
Comment #82148

Some simple changes are needed to level the playing field for all candidates, and end unfair and dangerous influences by only a few people that abuse their vast wealth and power.
[1] Limit political contributions from any entity (e.g. person, corporation, organization, etc.), per year, to 10% of the average American annual income. Regulation of political contributions is allowed by the Constitution. Unfortunately, the courts have decided that political contributions can not banned entirely, but can be regulated. Therefore, contribution limits should not be so large that the wealthy and corporations carry more influence than the individual voter (as it is now, and is obviously unfair to the average voter).
[2] Only allow contributions by American citizens or corporations or organizations owned 100% by American citizens. Since few corporations are 100% owned by American citizens, few corporations will be allowed to contribute to a specific candidate.
[3] No candidate may spend their own money in excess of 10 times the average American annual income; otherwise, a very wealthy person could conceivably buy an election, and control the media, news, propaganda, etc.
[4] All donations must be deposited into a single fund managed by the Federal Election Commission (FEC) that:
(a) disperses donations to the intended recipients.
(b) enforces donation laws and restrictions (e.g. enforce annual donation limits, enforce restrictions of donations only originating from American citizens or 100% owned corporations, and enforce other laws governing elections, etc.)
(c) disperses donations above the permitted limits (if any), equally, between all registered candidates; there is no need to disclose the identity or source of donations, since only American citizens and 100% American owned corporations or organizations can make political donations, and everyone is limited to the same annual maximum of 10% of the average American annual income;
NOTE: The FEC must disclose to all contributors that all amounts above the established 10% limit of the average American annual income is dispersed equally to all registered candidates.
[5] Make it illegal for candidates to public office or government employees to solicit or accept money, gifts, favors, or future promises of any kind (above and beyond the allowed limit)
[6] Also, make it illegal for any family member, group or organization to solicit or accept money or gifts, or spend funds on the behalf of a candidate for office or government employee.
[7] Government should not be for sale. When money enters the election process, it is rotten. Peddling influence represents a flagrant conflict of interest, and must be eliminated. Violation and conviction of this law would also forfeit the employee’s government pension (if any).
[8] Make it illegal for government office holders or employees to accept outside employment during their employment by the government.
[9] Prohibit all government employees or office holders, for two years after leaving government employment, from accepting employment with any government contractor or sub-contractor, government consultant, lobbyist position, etc.
[10] All candidates for office will be provided some free and equal media time during the election campaign (including print, radio, television, etc.). Remove the big money that allows only some to control the newspapers, radio stations and TV stations. Election statistics show that in over 90% of elections, the candidate that spends the most money wins !
[11] Hold elections on a week-end and/or declare important election days a national holiday.
[12] End voter-registration. Instead, all eligible voters should use a secure form of identification, such as biometrics.
[13] When each voter submits their vote(s), they will receive a computer printed slip of paper with a randomly generated number that can be used to find a record of their vote in a publicly listed record of all votes (e.g. on the internet, telephone, news paper, etc.). This will preserve anonymity, reduce election fraud, and provide a public record of each election.
[14] Make it illegal to start campaigning before a certain date prior to an election, so that all candidates have equal campaign time, so that campaigns will be less time consuming, and less costly to the tax payers.
[15] Remove the straight-ticket voting lever (or button) in all voting machines. Voting machines should not be promoting party-only voting.
[16] Remove and prohibit the party affiliation via names and symbols (e.g. Democrat, Independent, Republican, etc.) next to the names of all candidates.
_________________________________________
We have to also remove the barriers that are preventing and making it very difficult for other candidates (e.g. independent or 3rd party candidates) to get names onto voting ballots. Our current 2 party system (i.e. Democrats and Republicans) is failing us with its extremely lengthy, shallow campaigns which require an ever-escalating amount of money to win public office. And, often at best, the votes of only 25% of the eligible voters is required to win (i.e. since there is usually less than 50% voter participation). This is a serious problem, and such barriers are a violation of the constitution, and it is severely limiting our choices of candidates by only a few with access to wealth and power. NOTE: About 122 million people voted in the 2004 presidential election.

NOTE: Some of the changes (above) may require changes to the Constitution, but the Constitution is not written in stone, and government should not be for sale. Graft, bribery, influence peddling, and unfair influence by some that abuse vast wealth and power should not be legal. The purpose of the Constitution is to ensure that the government is Of the People, By the People, For the People. Power should not be vested in the scepter of a few with vast wealth; it should remain in the hands of the people. How is that possible, if a few with vast wealth and power have a louder voice than the people? Thus, campaign finance must be addressed. Offices of government should not be sold to the highest bidder. Only 5% of the wealthiest have 59.01% of all wealth. 10% of the wealthiest have 70.45% of all wealth. But 90% of average citizens (with only 29.55% of all wealth) can not compete with the other wealthier 10%. This gives rise to an elitist government, and this may be why many in government do not really want to address the following:
[X] campaign finance reform
[X] government for sale, influence peddling, lobbying by wealthy special interest groups & corporations, and the unfair influence of vast wealth
[X] reform of the tax system, and the numerous tax loopholes and tax shelters that primarily benefit the wealthy
[X] the National Debt
___________________________________________
All such plans (such as above) are all fine and dandy, but useless without some the peacefull force required to restore a balance of power (not simply shift it).
Since government will not reform itself, it is
up to the voters to peacefully force government
to be responsible and accountable.
Otherwise, we’ll simply continue to decline, and have only ourselves to thank for all of it.

Posted by: d.a.n at September 27, 2005 10:12 AM
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