Volume 17: Campaign Finance

The Best Government Money Can Buy

“I have decided to stop taking offense at the suggestion that we are buying influence. Now I simply concede the point. They are right. We do expect something in return. We expect to foster a conservative governing philosophy consisting of limited government and respect for traditional American virtues. We expect a return on our investment.” – Betsy Devos, U.S. Secretary of Education

 

The easiest way to influence government is with money. The extent to which a nation moderates this influence is the extent to which it is willing to regulate it.

We can tell an entire history of the United States, parallel to the one you learned in high school, looking only at how money affects politics. The creation of the patronage system and the backlash against it leading to civil service reforms. Tammany Hall and the era of city machines. Robber barons and trust-busters. Dirty tricks and dirty money, of which the Watergate Investigations only scratched the surface. Again, a backlash – new laws passed to rein in the worst abuses. The bursting of the dam in the Citizens United case.

Money in contemporary American politics can be split into three categories: hard, soft, and dark. In this Volume, we look at each, consider where it comes from, how it is regulated, and how it is used to affect elections – and the operations of the Government beyond.

  • What is hard money?

  • What is soft money?

  • What is dark money?

 

What is hard money?

The first American to use money in politics was The First American: George Washington(1). After losing his race for the Virginia House of Burgesses in 1755, he needed a new way to influence the electorate. He purchased "a barrel of punch, 35 [gallons] of wine, 43 [gallons] of strong cider and dinner for his friends," costing the equivalent of around $195 dollars. It worked; Washington won his seat in the next election. The legislature to which he had been elected, concerned with Washington’s method of gaining votes, forbade such electioneering going forward. Thus began a cycle: a candidate finds a loophole in campaign finance laws, uses it successfully, and the legislature attempts to close said loophole.

Hard money is that which is controlled directly by the official persons or institutions: candidates, parties, and their directly associated committees(2). If you write a $200 check to your local Congressman, that’s hard money. If your next-door neighbor gives $33,400 to the Democratic National Committee, that’s hard money. If a presidential candidate gives money to his or her personal campaign, that’s hard money too.

The modern regulation of hard money is based on the Federal Election Campaign Act of 1971 (“FECA”). FECA has had several major amendments, most critically one passed in response to the Watergate Scandal in 1974. Under FECA and its amendments, campaign donations have strict limits. A person can donate up to $2,700 to a candidate for Federal office, and up to $33,400 to a party committee. Furthermore, all donations over a nominal amount had to be disclosed to the Federal Election Commission, or FEC(3). It’s a logical setup: donations can be made by people, but not by legal entities, and the identity of everybody who makes donations will be disclosed to the public. All pretty reasonable – sunlight, disinfectant and all that(4).

Not for the last time, the Supreme Court stepped in to overrule Congress’s attempt to regulate how our elections are financed. In the case known today as Buckley v. Valeo, the Court consolidated suits against many portions of FECA. This had the effect of causing the Court to rule on the Constitutionality of most of the important features of the law. In doing so, the Buckley Court established general principles, guidelines, and tests via which future cases would be considered. The details of the ruling are far beyond our scope(5), but suffice it to say that:

  • Campaign contributions and expenditures are related to “speech,” not just “conduct.” Therefore, limits must be scrutinized as restrictions on Freedom of Speech.

  • The government has a compelling interest in preventing corruption (and the appearance thereof). Therefore, restrictions are permissible in certain circumstances.

  • Expenditures, whether by candidates themselves or by independent groups, are especially close to speech. Therefore, judicial review of restrictions on expenditures will be especially strict.

  • Disclosure requirements also may impinge on free speech. The state’s interest in preventing corruption permits them only with respect to donations to candidates or actions expressly supporting a candidate.

  • Restrictions on donations by a candidate to his or her own campaign are not permitted.

The hard money system created by FECA and its amendments, as modified by the Buckley decision, remains in place today. Everybody can participate in the process via donations. Obviously, citizens with more means will have more ability to participate, but the $2,700 limit to individual candidates limits how much more. In today’s campaigns, which frequently cost multiple millions a single House seat, one donor’s money will be a small fraction of a campaign’s total haul. The lack of limit on donations one’s own campaign encourages the wealthy to run for office, but I agree there is a First Amendment problem in limiting donations of this type(6).

 

An Aside: How many political parties are there?

Everybody always refers to the Democratic and Republican Parties, like they are big monoliths. This is, as you may have guessed, wrong.

The majority of the action for both parties is at the state level: Oregon Democratic Party, Georgia Republican etc. So, there are 50 Democratic and 50 Republican Parties, one for each state (and a few more for DC and territories too). These state parties handle primaries, choose delegates for Presidential nominations and liaise with their state electoral board.

The national tie-in for the parties is fairly loose. The “National Committees” (DNC and RNC) raise money and organize the convention. But they otherwise have little formal authority; they aren’t a hierarchy over the state parties. In each Chamber, each party also has a committee to raise money to help in the election of more members. Their ability to put money into races has given them influence, but again, no power.

 

In accordance with Buckley, there are few limits on how hard money can be spent by campaigns. They can hire staff, send mailings, buy TV airtime, hold events, and support voter turnout. They can also donate to other candidates (within limits) or to their party committees (without limits). They can even pay the candidate a salary(7). Party committees can spend money in more or less the same ways. Committee donations to candidates are capped at a somewhat higher level, $5,000.

Because of the high level of transparency, hard money is the most discussed in the press. When you read about a Senator’s position on a piece of legislation, the next line is often that he or she received so much money from the industry being affected. The media should be more careful with this framework; the money doesn’t come from the industry itself, but employees of companies in said industry. Without question, people do make donations based on what is good for their employer, hoping it will benefit themselves. But many others donate for unrelated reasons, even if – gasp – it is against their own short-term, personal financial interest.

What is soft money?