Tag Archives: campaign finance

Spending is Speech — A look back at Buckley vs. Valeo

By tmess2 | Published January 12, 2020

Most non-lawyers only vaguely, at best, know about the U.S. Supreme Court’s decision in Buckley vs. Valeo.  However, Buckley was the 1970s equivalent of Citizens United.  And it is a major factor in the modern campaign finance system and the candidates that are running for President.

In the early 1970s, Congress passed two laws related to campaign finance — the Federal Election Campaign Act of 1971 and a set of amendments in 1974.  Some of the provisions of these two statutes are familiar to people who follow politics because the Supreme Court upheld them.  These laws established the limits on contributions to campaigns — both by individuals and by political action committees and required campaigns to report donations.  The law also established the system of public funding of presidential campaigns which is still nominally on the books.  (Simply put, the law on public financing and the resources for public financing have not kept up with the ability of candidates to raise funds through various means including the internet.  Candidates can easily raise a level of funding that vastly exceeds the expenditure limits that are associated with accepting public finance.  And once one candidate opts to forego public financing, the rest of the candidates have to exceed those limits too.)

What most people do not remember is that these laws placed limits on expenditure in federal elections and restricted the ability of candidates to self-fund.  While the Supreme Court did not directly state that spending is speech, it did note that spending by a political campaigns is connected to its ability to speak and communicate the candidate’s message.  As a result, the Supreme Court found that mandatory limits on campaign expenditures (as opposed to the voluntary limits that went with accepting public funding) and any limits on independent expenditures were unconstitutional.  While this part of the ruling ultimately led to PACs and Super-PACs having the ability to run their own ads supporting and attacking candidates, that power mostly impacts things at the end of the process. Continue Reading...

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Public Financing in 2016??

By tmess2 | Published July 5, 2016

In the “good old day” (pre-2004),  the norm was that the major party candidates accepted public financing.   That changed in 2004, when several candidates in the Democratic Primary decided that they could raise enough on their own without accepting the partial matching funds (and the attached per state limits on spending).  (The per state limits are probably the most arbitrary and dysfunctional part of the current rules on matching funds.)  In 2012, both major party nominees opted against taking public financing for the general election.

This year, Donald Trump just might be taking a very long and hard look at accepting public financing.  There are several reasons why public financing might look very good to the Donald.  First, he has proven completely unable to raise funds on his own.  In slightly over twelve months, he raised a total of $17 million (tossing in $45 million of his own money for the primary).  Given that the public funding for the general election is $96 million, it’s in his personal financial interest to let you and I pay for his campaign.  Second, the only way that he has any shot at raising that type of money on his own is to beg for money from lobbyists — which would contradict the image that he is trying to present.  Third, in the Citizens United era. it is easy to farm out the campaign tasks.  Given Trump’s distaste for polling, data analysis and field operations, it is very conceivable that the official campaign will just dump those responsibilities on the Republican National Committee (which would be exempt form the spending limit) and just use the campaign for ads and appearances (and a skeleton staff.)   Even if later in the race, the campaign decides that it needs to spend more on ads, it can just farm that out to a Super PAC.   Finally, there is Trump’s perception that, with his celebrity status. he doesn’t really need to do much in terms of campaigning — a “run and they will vote for you” type of delusion.

Now, I haven’t heard on the internet or the news suggesting that Trump is planning to take public financing for the general election.  I am just saying that — with public funding available immediately after the convention and the Clinton campaign getting a free-ride on ads in swing states due to Trump’s campaign being broke — you would think somebody in that campaign is running the numbers.

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Supreme Court and Free Speech

By tmess2 | Published July 19, 2015

One of the broad themes of the Roberts Court has been an expansive interpretation of free speech rights (best exemplified by its campaign finance cases).  Over the past seven terms, the Supreme Court has heard twenty-four cases with some free speech aspect.  Despite the public perception, the Supreme Court has not uniformly held in favor of free speech (free speech only having clear wins in 14 of the twenty-four cases and partial wins in 2 of the twenty-four cases).  This term, however, was the roughest term for free speech advocates since at least 2009.

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