To many, the regulation of political campaigns is a matter of deepest principle, an essential tool in preventing corruption. To others, it is an intense and unacceptable violation of the First Amendment, an attempt by bureaucrats to hinder candidacies that don’t have the support of party bosses and other powerful elites. Critics of the concept point to the success of ultra-rich candidates who gain an edge since they can finance their own elections without dealing with campaign restrictions on donations.
A Congressional Research Service Report to Congress described the dynamic tension:
“Campaign finance regulation invokes two conflicting values implicit in the application of the First Amendment’s guarantee of free political speech and association. On the one hand, political expression constitutes “core” First Amendment activity, which the Supreme Court grants the greatest deference and protection in order to “assure [the] unfettered interchange of ideas for the bringing
about of political and social changes desired by the people.”
On the other hand, according to the Court in its landmark 1976 decision, Buckley v. Valeo, an absolutely free “political marketplace” is neither mandated by the First Amendment, nor is it desirable, because when left uninhibited by reasonable regulation, corruptive pressures undermine the integrity of political institutions and undercut public confidence in republican governance. In other words, although the Court reveres the freedoms of speech and association, it has upheld infringements on these freedoms in order to further the governmental interests of protecting the electoral process from corruption or the appearance of corruption.”
MAJOR CHANGES HAVE OCCURRED RCENTLY
Legal and legislative wrangling over campaign regulation has been particularly active since 2002, when Congress considerably altered campaign finance law in the Bipartisan Campaign Reform Act. The recent study, “The Constitutionality of Campaign Finance Regulation: Buckley v. Valeo and its Supreme Court Progeny” notes:
“The Supreme Court’s 2010 ruling in Citizens United v. FEC and a related lower-court decision, SpeechNow.org v. FEC, arguably represents the most fundamental changes to campaign finance law in decades. Citizens United lifted a previous ban on corporate (and union) independent expenditures advocating election or defeat of candidates. Speech Now permitted unlimited contributions to such expenditures and facilitated the advent of super PACs. Although campaign finance policy remains the subject of intense debate and public interest, there have been few legislative or regulatory changes to respond to the 2010 court rulings. This report considers these and other developments in campaign finance policy and comments on areas of potential conflict and consensus. Legislative activity to respond to the rulings has focused on the DISCLOSE Act, which passed the House during the 111th Congress, and was reintroduced during the 112th and 113th Congresses (H.R. 148). Recent alternatives, which include some elements of DISCLOSE, include 113th
Congressional bills such as Senators Wyden and Murkowski’s S. 791, or proposals that would require additional disclosure from certain 501(c) groups.”
The recently released 5 to 4 Supreme Court decision in the matter of McCutheon et al v. Federal Elections Commission complies with the view that attempts to interfere in the electoral process in ways not specified by the Constitution must be carefully screened to insure that they do not violate the First Amendment.
The decision is consistent with the 1976 decision in Buckley v. Valeo: “The concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment.”
Chief Justice Roberts delivered the decision, noting that corruption would be held in check by limiting how large a single donation could be.
In its 5-4 decision, the Court held that “The right to participate in democracy through political contributions is protected by the First Amendment, but that right is not absolute. Congress may regulate campaign contributions to protect against corruption or the appearance of corruption…It may not, however, regulate contributions simply to reduce the amount of money in politics, or to restrict the political participation of some in order to enhance the relative influence of others.”
That part of the decision—stressing that campaign regulations cannot be used to enhance the influence of some at the expense of others– is of extraordinary importance. Although the McCutheon case involves the question of aggregate limits on individual political contributions, that part of the decision may be seen as a cautionary note that the growing environment at the federal, state and local levels of campaign regulation may be violative of free speech rights.
HAS CAMPAIGN REGULATION HELPED OR HURT?
Research indicates that campaign regulation efforts have not achieved the goal of reducing the influence of money in politics.
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A study by the CATO institute found that “…there is no serious evidence that campaign finance regulation has achieved or will achieve its goals of reducing the influence of money, opening up the political system, and lowering the cost of campaigns. Indeed, since the 1974 amendments to the Federal Election Campaign Act, spending has risen sharply, the number of political action committees and the amount of PAC spending are up, and incumbents have increased both their election rate and the rate at which they outspend their challengers.”
Campaign regulation, particularly in the distribution of public funds to aid campaigns, has been abused in a number of ways. In some localities, New York City being a significant example, local Campaign Finance Boards have used their authority to heavily and unlawfully influence the outcome of elections and enhance the power of political bosses. In one extraordinary example, a candidate for New York City Council was a former State Assemblyman who had challenged the powerful Assembly Speaker frequently criticized for his iron rule and conflict of interest activities. The candidate was clearly not a favorite of the city’s political establishment. A highly irregular application of an ex post facto regulation was devised to deprive the candidate of funds, and to extract a penalty as well.
The expertise required to comply with reporting requirements and other campaign regulatory measures gives political professionals and party bosses an advantage over novices running for office. In some ways, the gauntlet of regulatory compliance and restrictions on fund raising makes American politics resemble that of ancient Rome, where leadership was restricted to a small field of “great men” with the personal resources to run.
As noted by the CATO study,
“ Limitations on contributions and spending, by definition, require significant regulation of the campaign process, including significant reporting requirements as to amounts spent and sources of funds. Such regulation creates opportunities to gain an advantage over an opponent through use of the regulatory process, and litigation has now become a major campaign tactic. Typically, regulation favors insiders already familiar with the regulatory machinery and those with the money and sophistication to hire the lawyers, accountants, and lobbyists needed to comply with complex filing requirements. Indeed, there is some evidence that campaign enforcement actions are disproportionately directed at challengers, who are less likely to have staff familiar with the intricacies of campaign finance regulation.
Perhaps those most likely to run afoul of campaign finance laws are unaffiliated individuals engaged in true grassroots activities. For example, in 1991 the Los Angeles Times reviewed Federal Election Commission (FEC) files and found that 62 individuals had violated FECA contribution limits by making total contributions of more than $25,000 to candidates in the 1990 elections. As the Times noted, though many of these 62 were “successful business people” who ‘usually have the benefit of expert legal advice on the intricacies of federal election laws,’ the next largest group of violators consisted of ‘elderly persons . . . with little grasp of the federal campaign laws.’ Political involvement should not be limited to those with “the benefit of expert legal advice on the intricacies of federal election laws.”
FOREIGN CONTRIBUTIONS
Recent decisions of the Supreme Court—including both the McCutcheon case and Citizens United—have taken positions protective of the First Amendment.
The ban on any contributions from foreign sources, not part of the McCutheon case, continues. Scandals involving contributions from foreign sources have affected both the Clinton and Obama campaigns.
According to a Washington Times report the web site Obama.com, owned by a China-based American business man, which attracted an overwhelming majority of foreigners to it, routed visitors to a donation site. Other published reports have revealed that an Obama web site accepted donations from abroad, while a similar Romney site rejected similar foreign donations.
Bill Clinton’s presidential campaign was also linked to a serious foreign contribution scandal. Approximately $100,000 from China’s military was funneled to the Democrat campaign in the summer of 1996 by the daughter of a top general in the People’s Liberation Army, General Liu Huaqing. The funds were not returned until after an investigation revealed the illegal activity.
Both the limits themselves, and the complicated system of reporting under federal, state and local campaign finance regulations, can be seen as favoring “party-boss” backed candidates who have both access to the specialized skills necessary to timely provide mandated filings as well as access to the type of fund-raising abilities that comply with the regulations.
CONCLUSION
Campaign regulations were enacted with good intentions, and when sharply limited to attack outright corruption, have some utility. In practice, however, they frequently afoul of the First Amendment, and have, by empowering political bosses and “professionals,” as well as opening the door for unlawful interference in the electoral process, caused more harm than good.