Jello Biafra, at a performance for the Green Party in Chicago on October 7, 2000, had this idea for campaign finance reform: (paraphrased)

Like race car drivers, make all of the politicians sew little patches on their suits with the logos of their corporate sponsors. At least then you'd know where they were coming from. And when there's no more room for patches, they can't take any more money.

Or maybe those David Byrne-style oversized suits would come back into fashion.

A Proposal for Reforming Campaign Finance
A Node Your Homework Production

In the eyes of the American public, the once-noble quest for elected office has become an exercise in the wholesale application of the almighty dollar. The mechanics of the modern political campaign are such that extravagant amounts of capital are required to make even a dent in the popular consciousness. The bar for entry into the political arena has been raised to the point where, at the very least, millions upon millions of dollars are required in order to make your voice heard. This situation, where candidates are forced into a competition of promises and pledges for special interest money, has led to a widespread and dangerous distrust of the run for office in particular and the elected government in general. Beyond the distrust and cynicism of the voting public, though, there is a more serious issue: the pressing need for capital reduces the American democracy to what is essentially a single party system. The remedy for these problems is two-fold: the removal of direct, private donations to candidates, and the reduction of the spiraling cost to maintain and operate a political campaign.

In the early 1970s, Congress made headway on the issue of campaign finance reform, enacting legislation to sharply limit direct donations to candidates. The Federal Election Campaign Act of 1971, amended throughout the decade, places strict limits on the amounts of money that can be given to a candidate by individuals, political parties, and political action committees (PAC). However, these limits only apply to funds transfered to a candidate's control; they in no way limit spending on the candidate's behalf by outside groups. Contributions made through this loophole, known as "soft money", today make up the bulk of electoral spending. PACs spend billions of dollars in support of their candidates, all of which is perfectly legal, since the money never comes under the control of its benefactor, the candidate.

The staggeringly high cost of running a modern campaign makes it very difficult for third party candidates to imprint their message on the electorate. The capital required is no obstacle for the two primary parties, who have nearly limitless pools of cash in their PACs. In an across the board contrast, however, third party candidates in the 2002 mid-term elections raised only single-digit percentages of what the Democrats and Republicans raised, according to the Federal Election Commission. This imbalance reduces the election to a two-party contest, despite the presence of other groups; third parties are simply unable to afford media spots to publicize so much as their existence, much less their viewpoints. This, coupled with the increasingly homogeneous nature of the Democratic and Republican parties, makes for an effectively single party race. A system where voters have such a limited selection of options is not a democracy; forcing a choice between a single option is the same as having no options at all.

In order to save the democratic element in the electoral system and limit the effects of special interest groups, private contributions of all kind must be eliminated from the picture. Their presence insures a lop-sided race, with the wealthier candidate almost guaranteed to come out ahead. It is essential above all that public contributions replace private donations as the funding method for the electoral competition. The sole funding for all campaigns should come from the government. Funding pools would be created for each office being sought, and the money there would be divided evenly among qualifying candidates. To qualify for public funding, a candidate would have to submit a petition signed by a set percentage of the population they want to represent. These funding pools would be fed by light income taxes imposed on the area the office is over. This would create a level playing field for all candidates, forcing them to compete without the unfair advantage huge monetary reserves affords.

Two advantages would come from this reform. First, the unhealthy influence of special interests would be eliminated. In the current system, elected officials are primarily the servants of their pay masters, not the public; the welfare and wishes of the general voting population are sacrificed for the benefit of a handful of companies and individuals. Second, more candidates would be able to enter the race. Currently, many third party candidates have considerable grassroots support, but no wealthy backers to purchase publicity and to make their message heard. This reform would increase the visibility of smaller candidates, placing them on the same playing field as the Democratic and Republican competitors.

Simply equalizing the amount of money each candidate possesses would not be enough to force a more honest race; the cost of campaigning itself must be brought down. In the 2002 New York City mayoral election, candidate Michael Bloomberg spent more than $70 million, most of which was on advertisements, both on television and in print media. Media publishers are currently taking advantage of the huge sums of money at the disposal of most candidates by charging exorbitant rates for political ad space. These outlets must be forced to reduce the rates they charge to public office candidates; they do, after all, serve the public. The rate charged, though, must be equal for all candidates; the publisher may not favor a particular party or candidate with a discounted rate.

Many civil liberties groups balk at this proposal because of what they see as two First Amendment violations inherent in it. The first infringement they see is censorship. By not allowing individuals to contribute to candidates, to speak symbolically with their donations, the government would be censoring those who wish to give money to their choice of candidate. The Supreme Court, however, disagrees. On several occasions, most notably Buckley v. Valeo and Nixon v. Shrink Missouri Government PAC, the bench has stated that money is property, not speech. The court also ruled that the government would only be guilty of censorship if they prohibited the candidates from spending their money in certain ways; if the government could not limit the giving of money, then all bribery and antigratuity laws would be voided as well.

The second First Amendment issue raised relates to the public funding of candidates. They see the splitting of tax dollars pooled from all voters to be the equivalent of forcing people to support candidates and opinions they may not agree with. This argument falls flat, however, in light of an existing, precedent-setting practice, the Franking Privilege. The Franking Privilege is a practice by which all members of Congress may send mail to whomever they choose, supported entirely by tax dollars. This law, over 200 years old, examined and approved by the Supreme Court, performs the exact same operation that the civil liberties groups are objecting to; persons, that the tax payer might not support, may send mail containing opinions, that the tax payer might object to, all of which that same tax payer is happily funding, with no objections from those civil liberties watchdogs.

The reduction of the United States electoral system to a nearly single-party exercise in monetary application has worked only to the detriment of the American public. Third parties, the last bastion of independent thought on most issues, have been excluded from the process by the massive amounts of fundraising that is necessary to run for office in today's world. Special interests have used their money to buy their way into Congress and other offices, turning the legislature into a servant of business and avarice. These conditions must be reversed. The solution is the elimination of private funding of election campaigns and the introduction of public dollars into the system. Only with these changes in place can America begin its collective journey back to a truly democratic state.

Have you seen those ads for Fahrenheit 9/11? The ones that show a confused-looking George W. Bush wandering around aimlessly? The ones in which he issues some statement or other about terrorism, then implores reporters to watch his next golf swing? Probably you have. Well, in the summer of 2004, a right-wing group called Citizens United asked the Federal Election Commission to ban those ads.1 And on June 25, 2004, the FEC issued an advisory opinion (albeit on a different case) arguing that ads like these were illegal.2

Predictably, left-wing websites erupted with their usual accusations of Bushian neo-fascism and censorship. It's a flagrant violation of the First Amendment, they said, a clear sign that dissent will not be tolerated. Besides that, it seemed a rather stupid thing for the Republicans to do. Controversy and attempts at censorship can only help Moore; he's used them to his advantage before, following the old maxim that there's no such thing as bad publicity.

So the left-wingers asked some sensible questions: Why would they do such a thing? More important, how could they think that they have the power to do it? Good questions, and as it happens, some of the left-wingers hit on the answer right away. It's really quite simple:

You insisted on giving them the power to do it.

That's right. Is it censorship? Yes. Is it an infringement on free speech? Indubitably. Is it illegal? No. This action is permitted--in fact, it's required--by current US law.

Yes, really.

Now, what could I possibly be talking about? As I said, it's quite simple. Remember that whole campaign finance reform debatle? Remember how McCain-Feingold and Shays-Meehan made it through Congress with near-unanimous support from Democrats? Remember how Bush signed it, even though he expressed firm doubts about its constitutionality?3 Good. Please keep all that in mind. We're going to have a look at what the current campaign finance regulations actually say about such matters.

Here's what 11 CFR 114.2(b) says:

(2) Except as provided at 11 CFR 114.10, corporations and labor organizations are prohibited from:

[i-ii deleted]

(iii) Making payments for an electioneering communication to those outside the restricted class [which here means executives or members of the administration]....

That seems relatively clear given that it's legalese. (11 CFR 114.10, if you're wondering, refers to a small subset of nonprofit corporations.) So what's an electioneering communication? Here's what 11 CFR 100.29 says:

(a) Electioneering communication means any broadcast, cable, or satellite communication that:

(1) Refers to a clearly identified candidate for Federal office; and

(2) Is publicly distributed within 60 days before a general election for the office sought by the candidate; or within 30 days before a primary or preference election, or a convention or caucus of a political party that has authority to nominate a candidate, for the office sought by the candidate, and the candidate referenced is seeking the nomination of that political party;

So let's unpack this. First of all, this restriction only applies when it's within 60 days before a general election or 30 days before a primary or caucus. Within this time period, a corporation can't pay for an ad that refers to a candidate for Federal office.

Now, at the moment, it's within 60 days of a general election. The ads I mentioned show George W. Bush. George W. Bush is obviously a candidate for Federal office. The ads, one presumes, are paid for by Lion's Gate Media or some other corporation. Therefore, these ads would be illegal if they were broadcast. They can't be shown. Period.

Hey, you asked for this law, right?

I've been unable to find whether Moore expressed his opinion on campaign finance reform before this issue arose. He did recently say that he considered this a "violation of [his] First Amendment rights."4 Fair enough, though his other comments weren't terribly insightful:

If it [i.e., the ban] happens, that means that Fox News Channel will have to remove all of their promos that show President Bush, because you can't advertise anything that shows a candidate. For us it would be like advertising Mission: Impossible without Tom Cruise in any of the spots. Bush is the star of the movie!"5

Let's start with the first sentence. His claim about Fox News is false; media entities have an exemption from many of the restrictions, and so they'd be able to show pictures of the President or John Kerry. (There is currently a bit of debate over what precisely constitutes a media entity, but whatever the definition it seems clear that Fox would qualify. It's by no means clear that Moore would; more on that in a bit.) Second, it turns out that Moore somehow managed to put together ads without George Bush in them. Some news agencies reported that the complaint was dismissed, which is true but potentially misleading. The complaint was dismissed only because Lion's Gate et al. stated that they would no longer be running ads with Bush in them. That is, the ads had in fact been changed to comply with campaign finance regulations; therefore, the alleged violation had not been committed or planned and the complaint had no basis6. Hardly seems like a victory when you're forced to censor yourself. Moreover, the FEC did not determine whether the revised ads were legal, as Citizens United didn't ask this question.7 Presumably, the portion of the law I cited above wouldn't apply, but consider this from 11 CFR 114.2(b):

(2) Except as provided at 11 CFR 114.10, corporations and labor organizations are prohibited from:

(ii) Making expenditures with respect to a Federal election.... for communications to those outside the restricted class that expressly advocate the election or defeat of one or more clearly identified candidate(s) or the candidates of a clearly identified political party;

And, according to 11 CFR 100.22, "express advocacy" means:

...any communication that--(a) Uses phrases such as "vote for the President"...[other examples deleted to save space]...or communications of campaign slogan(s) or individual word(s), which in context can have no other reasonable meaning than to urge the election or defeat of one or more clearly identified candidate(s), such as posters, bumper stickers, advertisements, etc....

(b) When taken as a whole and with limited reference to external events, such as the proximity to the election, could only be interpreted by a reasonable person as containing advocacy of the election or defeat of one or more clearly identified candidate(s) because--

(1) The electoral portion of the communication is unmistakable, unambiguous, and suggestive of only one meaning; and

(2) Reasonable minds could not differ as to whether it encourages actions to elect or defeat one or more clearly identified candidate(s) or encourages some other kind of action.

When used here, "communications" clearly aren't limited to broadcast media. As for the purported media exemption I mentioned before, Chairman Bradley Smith of the FEC expressed concern about it in a separate case:

Documentaries and books as such are not specified as exempted activities in the Act....Thus, under a narrow approach, it may be that the publication and promotion of a number of popular books....could be subject to government regulation (and potentially suppression) under the campaign finance laws, because they appear to expressly advocate the defeat of a clearly identified federal candidate, and are produced and promoted by corporations. Books by politicians could meet the same fate....The same could be said of politically charged documentaries -- to the extent they expressly advocate the election or defeat of a candidate for federal office, their production and promotion may violate the corporate expenditure ban.
Other proposed legal standards not present before us now, which have been prominently advocated, could lead to more aggressive regulation of such activities. For example, under the expansive definition of "express advocacy" favored by some of my colleagues, the production and promotion of Michael Moore's movie Fahrenheit 9/11 may have been banned completely, if these activities were financed by corporations. Similarly, a recent regulatory proposal before the Commission, supported by many prominent campaign finance regulatory advocates, including Democracy 21, the Campaign Legal Center, and Senator John McCain, could potentially have censored Moore's movie regardless of whether or not it contained "express advocacy," if it was found to be produced and distributed by corporations with the "major purpose" of influencing a federal election.8

Scary, eh? Still glad you supported McCain-Feingold?

This isn't what we wanted to happen!

Oh, I'm sure it isn't. I'm sure the liberals and leftists who supported the bill thought that it would only affect those icky corporate-controlled Republicans. Maybe they believed the nonsense about the general media's tendency towards right-wing advocacy. Maybe they just forgot that Mike Moore is a rich white fat capitalist much like all the other rich white fat capitalists they rail about all the time.9 Whatever the cause, we now have a presumably well-intentioned law that has wide-ranging implications that its supporters presumably did not anticipate (sometimes I think that's a hallmark, if not a defining feature, of leftist politics).

The regulations I quoted are based on Federal law and are ultimately enforced by the FEC. The FEC Commissioners are appointed by the President. You handed the incumbent the power to regulate the ads that affect his re-election. What the hell did you think was going to happen, people?


All legal quotations are from findlaw.com. Please let me know of any formatting errors--if you can suggest a method that will make the citations clearer, I'd be happy to hear it.

1http://www.citizensunited.org/moore.html, http://film.guardian.co.uk/news/story/0,12589,1254278,00.html

2http://www.fec.gov/aos/ao2004-30final.pdf. Ironically, the decision pertained to ads that Citizens United was considering running. This is quite interesting, actually. One can ask the FEC (and, I presume, similar government agencies) to give an advisory opinion about a proposed course of action to see if it satisfies the requirements of Federal law. It's a nice way to get a bit of advice from the folks who will actually be enforcing the laws against you. So if in the future Moore or anyone else claims to have been "blindsided" by the FEC, or that they had "no way of knowing" that the FEC restrictions would be applied in a particular way, don't believe it. They had every opportunity to check with the FEC.

3http://www.whitehouse.gov/news/releases/2002/03/20020327.html.

4http://cnnstudentnews.cnn.com/TRANSCRIPTS/0406/24/pzn.00.html

5http://www.michaelmoore.com/words/mikeinthenews/index.php?id=89

6http://www.fec.gov/press/press2004/20040806mur.html

7I assume that the FEC's decisions should be interpreted narrowly, but I don't have much experience with the actions of regulatory agencies. If someone knows differently, please let me know.

8See http://www.fec.gov/aos/ao2004-30final.pdf.

9I mention Moore's weight only because, like his skin color, it's a feature that makes him fit the leftist stereotype about businessmen. Obviously it has no bearing on the merit (or lack of merit) of his arguments.

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