The Personal Website of Mark W. Dawson

Campaign Financing and Independent Expenditures

Introduction

The issues and concerns of Campaign Financing and Independent Expenditures on election campaigns are complex, entwined, and have far-reaching effects on our elections and our democracy.

Campaign finance in the United States is the financing of electoral campaigns at the federal, state, and local levels. At the federal level, campaign finance law is enacted by Congress and enforced by the Federal Election Commission (FEC), an independent federal agency. Although most campaign spending is privately financed (largely through donors that work in subsidized industries), public financing is available for qualifying candidates for President of the United States during both the primaries and the general election. Eligibility requirements must be fulfilled to qualify for a government subsidy, and those that do accept government funding are usually subject to spending limits on money.

Citizens United v. Federal Election Commission, 558 U.S. 310 (2010), was a landmark decision of the U.S. Supreme Court concerning campaign finance. The Court held that the free speech clause of the First Amendment prohibits the government from restricting Independent Expenditures for political communications by corporations, including nonprofit corporations, labor unions, and other associations.

Campaign Financing and Independent Expenditures are about our Constitutional 1^st Amendment rights:

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

In the exercise of these rights in Campaign Financing and Independent Expenditures, it raises the concerns of:

1. Corruption and the Appearance of Corruption.
2. Corporations and Companies as part of the political process.
3. Corporate Shareholders and Company Owners' rights and their Customers' rights.
4. Private Labor Unions as part of the political process.
5. Public Labor Unions as part of the political process.
6. Labor Unions and Corporations/Companies coercion of membership/employee contributions.
7. Media Censorship and Media Influence.
8. Losing faith in our democracy.

The issue is the source of the money for electioneering, and the question is a what point does a contribution become an attempt to influence a vote of an elected official or the support or opposition to a politician’s policy and positions? The answer is fraught with difficulties.

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Incumbency

Incumbents enjoy inherent electoral advantages over challengers, such as greater financial resources, more press coverage, more experienced campaign operations, past campaign outreach to voters, and ongoing delivery of constituent services for their districts. This is demonstrated by the fact that over 90% of incumbents are reelected. A challenger must overcome this advantage by outspending an incumbent, and they have more difficulties in raising monies to spend. In fact, rarely does a challenger raise more money than an incumbent. It is only in a contested seat that a challenger comes close or outraises an incumbent. We have also seen a dramatic rise in contributions to candidates from sources outside of their election district. And the longer that an incumbent has served, the more difficult it is for a challenger to win an election. The result of these factors is that there is very little turnover in Congress, with each election having only a few contested seats. This is also why many elections turn negative. A challenger must give a reason(s) for a voter to not vote for an incumbent; otherwise, voters tend to vote for the incumbent. And the reasons given by a challenger are often negative, as negativity is more effective than positivity. The base emotions of fear, contempt, and coveting are more effective in garnering votes then to appeals to the better angels of our nature.

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Issues and Concerns

We must first highlight the issues and concerns of both campaign financing and independent expenditures to reach any conclusions from which we can act upon.

Corruption and the Appearance of Corruption

When a politician votes for legislation based on a campaign contribution, they are a corrupt politician. A democratically elected politician has a duty to represent their constituents. This representation does not mean that they must vote as they believe that their constituents would want them to vote, but that they vote as they think is in the best interests of their constituents and, indeed, of all Americans. They also have the duty to explain to their constituents the reasoning for their vote. If it appears that their vote has been comprised by campaign contributions, they have a duty to be fully transparent with their constituents and explain to their constituents why it is not a comprised vote. Failure to explain their Appearance of Corruption is not acceptable, and depending on the severity of the Appearance of Corruption, it may justify investigations and possible criminal charges. In all cases of the Appearance of Corruption, the voters have a duty to account for the politician’s actions when they next cast their vote.

Corporations and Companies as part of the political process

What part do corporations and companies play in the election process?  As a corporation or company is impacted by the laws, rules, and regulations, they have an interest in these laws, rules, and regulations. The question is, do they have a role in electioneering? I believe that they should have no role in electioneering, but that they do have a role in lobbying elected representatives on the issues that concern them. Lobbying an elected official is different from electioneering. All people and organizations have a right to petition the government for a redress of grievances. Lobbying is a form of petitioning the government for a redress of grievances and is a constitutionally protected right. However, electioneering is about voting, and as corporations and companies, and other organizations, do not have a vote, they should not be involved in electioneering. No form of contributions from a corporation or company, or other organizations, should be permitted in electioneering except under the auspices and restrictions of a Political Action Committees (PAC), which I discuss in greater detail later in this article.

There is also the tangential question of corporations or companies engaging in the suppression of Free Speech, which has an impact on campaigns and elections. As this is a tangential and greater issue than the point of this article, I have written another article on this issue. My article, “Social Media and Free Speech”, examines the methods, actions, and repercussions of Social Media when they allow, tag, or cancel posts by their subscribers.

Corporate Shareholders and Company Owners rights and their Customers rights

As I have written in my Article, “Other People’s Money (OPM)” it is immoral and unethical for a company to expended monies on anything other than their companies' legitimate business expenses. This is especially true for expenditures for electioneering. It is for these reasons, as I have explained in my article, that electioneering expenditures are a violation of the fiduciary responsibilities of shareholders and owners and a violation of the rights of customers and should not be allowed in electioneering.

Private Labor Unions as part of the political process

The purpose of a Labor Union is to negotiate for better wages and salaries, benefits, and working conditions for its members. A Labor Union has the right to lobby elected officials to assure that their rights and privileges are protected, and for laws, rules, and regulations for safe and healthy working conditions, but it has no right to be involved in electioneering. No right to electioneering as Private Labor Unions, just as corporations and companies, and other organizations, do not have a vote, they should not be involved in electioneering. There is also the (real) possibility that any contributions they make may go to candidates or PAC’s that the labor union member may not support, which is a violation of the members' Freedoms and Liberties to choose to whom and how much they wish to contribute to a candidate or PAC. A Private Labor Union may recommend a candidate or PAC that its members should donate their individual monies or efforts, but they cannot mandate nor collect monies or officially endorse, organize, staff, or provide facilities for any electioneering efforts. The membership of a Labor Union has the right to be involved in electioneering, but only as individual contributors to a candidate or a PAC.

Public Labor Unions as part of the political process

Public Labor Unions are a branch of Unions that have a special role and, therefore, a special responsibility. Special because Public Labor Unions negotiate the wages and salaries, benefits, and working conditions for its members who are employed by the government, and they directly negotiate with an elected official, or with a representative of an elected official. As such, the elected official is acutely aware that their negotiations may have a direct effort on their reelection. An effect that may be corrupting or may have an appearance of corruption, as the elected official is often conflicted with their duties and responsibilities to their constituents and their desire for the support, or at least non-opposition of the Public Labor Union on their reelection. I, therefore, believe that a Public Labor Union should have no role in electioneering, as this is a conflict that can only be minimized or avoided by a Public Labor Union not engaging in any electioneering activities. This includes, but is not limited to, no endorsements, no organizing, no staffing, and no providing facilities for electioneering purposes.

Labor Unions and Corporations/Companies coercion of membership/employee contributions

In both Private and Public Labor unions, and Corporations and Companies, the issue of coercion of contributions for candidates or PAC’s looms large. Coercion of contributions is a violation of the Freedoms and Liberties of a person to choose to whom and how much they wish to contribute to a candidate or PAC. No person should feel coerced to contribute to a candidate or PAC, and the only way to eliminate this coercion is to prohibit a Private or Public Labor Union, Corporations, and Companies, from collecting monies for a candidate or PAC, or receive any information on who contributed to a candidate or PAC. Consequently, no candidate or PAC may share their contributor’s information with any Private and Public Labor unions, or Corporations and Companies, nor may they share this information with any other entity.

Media Censorship and Media Influence

“Modern Journalism” has led to the corruption of our electioneering process, as Media Bias has been a detriment to the body politic. The opponents to the media biased position no longer think that they can get a fair hearing of their position to a majority of Americans, and especially to voting Americans. Without this fair hearing, it has become much more difficult to run and win an election if you do not support the biased media position. This Media Bias unfairly tilts the balance of power in America, and this leads to feelings of disenfranchisement by those opposed to the media biased positions. All journalist should remember that:

“With Great Power Comes Great Responsibility”

Thus, all journalists should be very mindful of their responsibility to gather all the facts, check the veracity of the facts, and present all sides of a story objectively. As this has not been the case with modern journalism, the 4th Estate has become the 5th Column for liberal-progressive ideology and policy, and the candidates who espouse these Media Bias views.

Social Media censorship, and “fact’ and “truth labeling”, as I have written in my Article “Slander & Libel on Social Media and Journalism”, for those that express positions contrary to the political and policy positions of the social media websites have also contributed to this problem. The only means possible to counter this Media Bias and Social Media censorship is by increased funding and spending by those candidates and PAC’s that are in opposition to the Media Bias and Social Media positions. This is an important factor in opposition to limitations on campaign and PAC spending on electioneering.

Losing faith in our democracy

All the above issues have contributed to a loss of faith in our elected representatives and our democratic institutions. Until we address all these issues, the cynicism of the American electorate is justifiable. A cynical electorate results in the crumbling of our foundations of democracy and is injurious to the health and welfare of our democracy. A crumbling that could result in the collapse of our society and the loss of our “Freedoms, Liberties, Equalities, and Equal Justice for All”, and is antithetical to our ideals of “… government of the people, by the people, for the people, shall not perish from the earth.” - Abraham Lincoln

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What can be done?

People always form groups to support or oppose a candidate or policy position. This is the right of a person to Free Speech and for the people to peaceably assemble and to petition the government for a redress in grievances. Free speech, assembly, and petitioning without monies to support the free speech, assembly, and petitioning is equivalent to tilting at windmills. These groups are a healthy part of the democratic process if they are formulated and operate in a transparent manner. These groups in America are known as Political Action Committees (PAC). A PAC is not inherently a corrupt entity, but it can become corrupt if operated improperly. Therefore, laws and regulations on PAC’s need to be in place to assure the proper operation of a PAC, but such laws and regulations should not be utilized to inhibit or silence a PAC’s Freedom of Speech or to petition the government for a redress in grievances. Such laws and regulations should be primarily concerned with the proper funding and proper expenditures of PAC’s.

A possible solution for the funding of a candidate or a PAC is that an individual person who is eligible to vote may contribute any amount of monies that they wish to a candidate or to a PAC, but that a non-individual entity or a non-eligible person cannot contribute any monies to any candidate or any PAC. Or, more succinctly, if you are eligible to vote, you can make contributions to a candidate or a PAC, while if you are ineligible to vote, than you may not make any contributions to a candidate or PAC. If you are ineligible to vote, you have the right to lobby the government for a redress of grievances, but you have no right to contribute activities or monies to a campaign or PAC. Also, a non-individual entity or a non-eligible person cannot collect monies from their group members to contribute to a candidate or PAC, but they may provide a postal or website address to their group members where their members can contribute their own monies. No candidate or PAC may provide a list of their contributors to any other candidate or PAC, Private and Public Labor unions, or Corporations and Companies, or to any other entity.

The slogan “No taxation without representations” has a long and proud history in America. However, this slogan is not an end-all and be-all of whom should be allowed to be involved in voting or electioneering in America. The controlling factor is fealty to the Constitution and government of the United States. We have many foreign nationals who live, work, and study in America and pay taxes. Should they be allowed to vote as they pay taxes? We also have illegal immigrants who live and work and pay some form of taxes in America. Should illegal immigrants be allowed to vote as they pay taxes? The answer is no, as they have no fealty to the Constitution and our government, as their fealty is to their country in which they are citizens. As they have no fealty to the Constitution or our government, they should not be allowed to vote or to influence an election through activities and contributions to candidates or PAC’s. It also raises the specter of a foreign government surreptitiously funneling monies to an election through these foreign nationals or illegal immigrants.

As to how this could be enforced, the answer is tricky as it may impact on the privacy rights of an individual. I believe that a national database, maintained by the Federal Election Commission (FEC) and supplied by the local election commissions of just the name and the city, state, and zip code of the voter would be accessible to all interested parties. A candidate or PAC would be required to verify a contributor’s name, city, state, and zip code before a contribution is accepted. Anonymous contributions would not be allowed, but the autonomy of the contributor would be required of the candidate or PAC. The candidate or PAC, therefore, may not share contributor information with any entity.

Given today’s personal destruction and retribution of anyone who may disagree with Progressive and Leftist policy positions, it is not wise to disclose the identity of individual contributors. This would raise the specter of the fear of involvement in elections that could negatively impact a person, their family, or their business. And no one should be afraid to participate in an election. The autonomy of the contributor to a candidate or PAC is the only means that assuage this fear.

Limiting the amount of money that an individual can contribute to a candidate or PAC is a de facto incumbent reelection protection act, for such limitations make it more difficult for a challenger to raise sufficient monies for a successful challenge. These limitations also infringe upon the Freedoms and Liberties of Americans to decide on whom and how much monies they wish to support. Therefore, limitations on campaign and PAC contributions are undemocratic and have no place in democratic elections.

As to the question that the wealthy may be able to contribute more monies to elections, the answer is that the middle-class and lower-class far outnumber them in the votes that can be cast. We have also seen that the contributions from the wealthy swing in all different directions that tend to balance out each other. A tricky balance to maintain, but a balance that does not infringe on anyone’s rights, and a balance that with government intervention to maintain would result in more incumbent reelection protection.

Public funding of elections has been raised as a possible solution to these problems. But Public Funding of elections constricts the monies a challenger may utilize to mount a challenge to an incumbent. There is also the question of who receives the monies and how much money they receive. Do third party challengers receive the same monies that a Democrat or Republican receives, and how many third-party challengers do you publicly fund? Given the advantages that incumbents enjoy over challengers, as previously discussed, Public Funding of elections would result in more incumbent reelection protection.

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Conclusion

In addressing the issues and concerns of Campaign Financing and Independent Expenditures, you must address all the issues and concerns. If you only address some of the concerns, you will create an imbalance in the funding and expenditures of electioneering. An imbalance that would favor some at the expense of others, and an imbalance that usually results in more incumbent reelection protection. The more complex laws, rules, and regulations that are created regarding electioneering, the more you infringe on our 1^st Amendment rights. An infringement that impacts our democracy and the ideal of “… government of the people, by the people, for the people, ...” - Abraham Lincoln.

The hubris of any person or group of people or any governmental entity who believes that they can control or manage election funding is astounding. In response to this hubris, "I think we ought to exercise one of the sovereign prerogatives of philosophers— that of laughter."  - Charles L. Black. As the answer to Free Speech is more Free Speech, so the answer to money in electioneering is to allow for more money in electioneering. Constricting monies in electioneering is constricting the democratic process and constricting the Free speech, Assembly, and Petitioning rights of a person. Therefore, let the money be raised and spent, and let the Chips Fall Where They May.