Campaign Finance

Campaign Finance Regulation (CFR) consists of restrictions on what can be said in relation to political campaigns. To avoid immediate invalidation by the First Amendment, these laws target the money used to promote, develop and create speech. Like killing a plant by withholding water, these regulations seek to eliminate most speech by making it impossible to create it.

How it works is simple: say you wanted to make a flyer and mail it out to promote your candidate for an elected office, Candidate Smith. CFR would, if it’s creators had their way, make it impossible for you to do so.

“But wait,” you may object, “I’m not giving Candidate Smith money, I’m just doing this on my own.!”

McCain-Feingold, a major CFR law, prohibited all non-candidate election communications within a 2-month period prior to an election. The law was struck down when a pair of radio hosts campaigned against a tax increase using their radio show. They were sued and threatened with bankruptcy because of their speech.

But even though that was struck down, CFR still attempts to prohibit you from doing so. If you “co-ordinate” a campaign communication with Candidate Smith, it counts as an in-kind contribution and you may only produce and mail your flyers up to the legal donation limit. An in-kind contribution is a “contribution” that is resources (flyers, TV ads, etc), or services (catering, music, speaking) that would normally be paid for by the campaign. Volunteering these services would have to be done only within the legal contribution limits. If the value of a service exceeds the maximum donation limit, it cannot be volunteered to a campaign.

“Now hang on,” You may say, “I know you’re wrong because I see ads on TV all the time calling candidates awful names and making all kinds of attacks on them, and these are clearly not coming from the candidates.”

But think carefully - did those ads mention an election or tell you to vote against the candidate? They didn’t. They legally can’t.

The Supreme Court ruled that CFR can only be justified to fight “corruption or the appearance of corruption”, and the kind of corruption is limited to “quid pro quo corruption.” (Do this for me and I will support you) Ads that don’t expressly call for the election or defeat of a candidate don’t meet that standard. Ads that simply influence public opinion about a person are “educational” in nature, not campaign-related. And making a candidate look like a monster you should vote against is much easier than making them look like an angel you should vote for.

But that complexity and those fine lines work to the benefit of CFR anyway - if you don’t know which words will send you to jail, will you speak at all? Incumbent politicians want the smallest threat possible to their re-election, and convoluted, scary rules are not as good as a ban, but they’re better than clear rules that people can easily follow.

And protecting incumbent politicians is the point - CFR rules, though they apply to everyone, always work to the benefit of incumbent politicians. They work by magnifying the natural advantages incumbents already have.

For example, an elected official can appear and speak at a school opening, townhall meeting, even a private ground-breaking ceremony, gaining media attention and public awareness of his existence without spending a dime. His challenger won’t have that platform, and will have to spend money to reach voters as a matter of course.

An incumbent has built donor lists over multiple campaigns, and is able to use his office to foster additional fundraising opportunities. He can raise money for the industries he regulates, and is expected to fundraise even when not standing for re-election. A challenger starts with nothing, and contribution limits prohibit them from getting a boost from wealthy interests seeking to unseat the incumbent. That’s why they exist.

Even the so-called clean money elections, that is, ones that are fully publicly funded, are a direct attempt to equalize the one thing that incumbents don’t have a guaranteed advantage in. CFR allows incumbents to select who they run against, and then eliminate the possibility that the challenger will have more money than they do.

Every last bit of CFR is nothing more than an attempt to rig the game so that incumbents never lose.