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Money
and Elections Perceived
Problem:
According to the Center for Responsive Politics, “The historic election of
2008 re-confirmed one truism about American democracy: Money wins elections.”
According to the Center, candidates, interest groups, and political parties in
the Presidential and Congressional races spent more than 5.2 billion dollars.
The increase in campaign expenditures has led to the concern that politicians
will become so desperate for money that they will become beholden to special
interests, individuals, and parties, shutting out the poor, and leading to a
system where governmental influence can be purchased with campaign
contributions. Evidence? According
to Center for Responsive Politics, during the 2008 election, the candidate who
spent more money won 93% of House races and 94% of Senate races. In 2008, the average cost of winning a
House seat was $1.1 million, and the average Senate seat cost $5.6 million. Average
expenditures for Congressional seats in 2002 1.
House:
Senate:
Consequences? According to Center for Responsive
Politics: “The oil and gas industry contributed $23.8 million in individual
and PAC donations during the 2004 election cycle, 80 percent to Republicans.
Environmental interests contributed $1.9 million, 88 percent to
Democrats...Congressional Republicans have been trying for years to open up the
Arctic National Wildlife Refuge to oil drilling “ while Democrats have opposed
it. . . .- “Business
associations sent 84 percent of their individual and PAC contributions to
Republicans in the 2004 election cycle. They spent tens of millions of dollars
more on lobbying . . .. (The US Chamber of Commerce) raises millions in
corporate contributions for its legislative efforts. The Chamber spent more than
$16 million lobbying the federal government in 2003 . . .The Chamber is the lead
business group lobbying in favor of class action reform and other versions of
tort reform. The Chamber's Institute for Legal Reform was formed in 1998 to
‘reduce excessive and frivolous litigation.’ . . .Less than a week after
President Bush delivered the first State of the Union address of his second
term, the Senate began debating the Class Action Fairness Act, which is intended
to keep lawyers from bringing class action suits in states with the most
sympathetic laws to their clients.” Counter
evidence?? Economist
Steven Levitt argues that you cannot prove that money buys elections simply
because those candidates with the most $ win. The problem he says is that
perhaps the qualities that attract money are also the qualities that attract
votes. So what to do? Levitt looked at campaign spending and election results
for the same candidates who are running against the same opponents (which has
occurred in roughly 1,000 congressional elections since 1972). So if a candidate
spends more money in one election does his or her election results improve
commensurately? Levitt says a winning candidate can cut his spending in half and
lose only 1 percent of the vote, while a losing candidate can double their
spending and only pick up 1 percent. As for the
money buying votes – it must be noted that traditional Republican ideology
would support class action “reform” and drilling in ANWAR and traditional
Democratic ideology would oppose both – so how do you isolate the influence of
ideology from the influence of money?? So what are the sources of the “problem”? The Candidate
themselves – A candidate can contribute an
unlimited amount of money to their own campaign – For most politicians though,
this is usually just a fraction of the money that funds a political campaign –
challengers often spend from their own pocket but incumbents rarely have to. Individuals – The bulk of most campaign funds
come from individual contributors (somewhere around 50 percent for incumbents
and challengers in House and Senate races in 1997-1998) Political
Action Committees (the political
arms of special interest groups) – PACs are limited to $5,000 contributions
but can host fundraisers that generate a flurry of smaller, individual
donations, limited to $15,000 a year to national party committees -- (somewhere
around 40 percent of campaign funds for incumbents, 10 percent of campaign funds
for challengers in House and Senate races in 1997-1998) PACs are funded by
contributions from members and cannot be funded out of membership dues – which
means they have less cash than the organization they spring from (this becomes
important with McCain-Feingold) Parties – While parties are usually only a
small source of direct contributions (somewhere
around 3 percent of campaign funds for incumbents, 6 percent of campaign funds
for challengers in House and Senate races in 1997-1998) they also host
fundraisers and used to be able to provide “soft money” – the use
of money for “party-building activities” that can benefit a candidate by
mobilizing sympathetic voters or candidate-specific advertising -- (Dems &
Repubs made 1/2 Billion in soft money in 2000 & 2002) General rules: All federal
contributions must be reported to the Federal Election Commission All
contributions over $100 must be disclosed with name, address and occupation of
contributor No foreign
contributions No corporate
contributions Presidential
wrinkles Primaries – there are federal matching funds
available for all money raised from individual donors giving $250 or less – to
take the matching funds the candidates need to agree to a $45 million cap on
spending for the primary – Both Bush and Kerry opted not to take the matching
money because they did not want to be limited by the cap (Bush would go on to
raise $292 million in the primary, Kerry $251 million) General – Major party candidates are given a
lump sum (currently around $75 million) that must meet all of their campaign
expenses – minor party candidates can receive some public money if their
candidate received more than 5 percent of the vote in the previous election What had the court said about campaign contributions? Buckley V.
Valeo (1976) – money is speech and thus limitations on what a person spends
their political contributions on are a violation of free speech rights –
strikes down limits on what a candidate can spend of their own money, general
expenditure limits, as well as limits on expenditures for “issue advocacy”
advertisements – but upholds reporting requirements and limits on
contributions to candidates What is the most recent wrinkle? The Bipartisan Campaign Finance Reform Act (also known as
McCain-Feingold) was signed into law in March 2002 – law went into effect
during 2004 election cycle-- Bans unlimited “soft-money” contributions by limiting
contributions to national parties to $28,500 per calendar year, and $10,000 to
each local and state party committees -Aggregate total: $108,200 per 2-yr election as follows: $42,700
per cycle to candidates and $65,500 per cycle to all national party committees
and PACs (no more than $40,000 of this can go to PACs per cycle) BCRA also
Increased individual contribution limits – From $1,000 to $2,300 per candidate per election From $20,000 to $28,500 per national party committee per year The Supreme Court upholds BCRA in the 5-4 McConnell v Federal
Election Commission (2003) Stevens and O’Connor majority opinion on soft money: “Under this system, corporate, union, and wealthy individual
donors have been free to contribute substantial sums of soft money to the
national parties, which the parties can spend for the specific purpose of
influencing a particular candidate's federal election. It is not only plausible,
but likely, that candidates would feel grateful for such donations and that
donors would seek to exploit that gratitude.” Stevens and O’Connor majority opinion on “issue advocacy”: “While the distinction between "issue" and express
advocacy seemed neat in theory, the two categories of advertisements proved
functionally identical in important respects. Both were used to advocate the
election or defeat of clearly identified federal candidates, even though the
so-called issue ads eschewed the use of magic words. Little difference existed,
for example, between an ad that urged viewers to "vote against Jane
Doe" and one that condemned Jane Doe's record on a particular issue before
exhorting viewers to "call Jane Doe and tell her what you think." . .
. Corporations and unions spent hundreds of millions of dollars of their general
funds to pay for these ads, and those expenditures, like soft-money donations to
the political parties, were unregulated. . .” Kennedy’s
dissent on “issue advocacy” “Suppose a
few Senators wanted to show their constituents in the logging community how much
they care about working families and propose a law, 60 days before the election,
that would harm the environment by allowing logging in national forests. Under
the McCain-Feingold law, a non-profit environmental group would be unable to run
an ad referring to these Senators in their districts. The suggestion that the
group could form and fund a PAC in the short time reuired for effective
participation in the political debate is fanciful.” (Possible
unforseen consequences– As provided by 1st amendment attorney Floyd
Abrams in his book “Speaking Freely.”) Advertisements
for the Anti-Bush movie “Fahrenheit 9/11" could not be run 30 days before
the Republican Convention in August 2004 because they included footage of Bush A book written
by John Kerry could not be advertised by its publisher on radio and television
at all in July (the Democratic Convention), and most of September and all of
October (the general election) The AFL-CIO was unable to broadcast ads
criticizing federal overtime regulations issued near the 2004 election by the
Department of Labor because the ads included the names of members of Congress
they wished to influence. They ads could also not include the phrase “the Bush
administration” or “Bush’s Department of Labor) Well that
certainly handles that problem . . . Right? -Section
527 of the IRS Code— These
political, non-profit organizations are not subject to the same regulations of
BCRA as political parties are. Thus,
527s can raise the “soft money” donations that the parties cannot legally do
anymore and spend it themselves on election and issue advocacy ads Biggest
527s of 2004: America Coming
Together ($79 million), Joint Victory Campaign ($71 million), The Media Fund
($59 million), MoveOn.org ($12 million), Swift Boat Veterans For Truth ($17
million) In 2004
the largest 527s tended to be left leaning, with the very notable exception of
Swift Boat Veterans for Truth (Other
right-leaning groups included: Progress
for America Fund, American Resolve, November Fund, and Leadership Forum) Randall v.
Sorrell -- In June 2006 the Supreme Court
struck down a Vermont law that: Put limits on
the amount that a candidate could spend on their campaigns -- $2,500 for state
house, $300,000 for governor (Breyer, Alito, Roberts wrote in the majority that
was a violation of free speech – logic consistent with Buckley) Put limits far lower than the federal restrictions on contributions Citizens United v. Federal Elections
Commission – In January 2010 the Supreme Court
ruled in a 5-4 decision according to the NY Times that; “the government may not ban
political spending by corporations in candidate elections. The decision eliminates the
McCain-Feingold limits on corporations and unions that prevented buying “electioneering ads” featuring the names and/or
likenesses of candidates within 60 days of a general election, or 30 days of a
primary election. The majority composed of the Supreme Court’s four conservative
justices plus the swing justice Anthony Kennedy, said, “That the decision was
a vindication, the majority said, of the First Amendment’s most basic free
speech principle — that the government has no business regulating political
speech.” Writing for the majority, Justice
Kennedy wrote, “If the First Amendment has any force, it prohibits Congress
from fining or jailing citizens, or associations of citizens, for simply
engaging in political speech.” The minority, led by Justice John Paul
Stevens, said that, “The majority had committed a grave error in treating
corporate speech the same as that of human beings.” A central point of the minority’s
opinion stemmed from a fear of undue influence of corporations in elections. The Citizens United case stemmed
from a documentary called Hillary: The Movie. Citizens United attempted
to broadcast the documentary on television and On-Demand service, however, the
FEC prevented the showing. The McCain-Feingold bill excludes news
reports, and commentaries, and the Supreme Court was expected to rule that
Citizens United was protected by the exclusion, however, the Court instead went
further and overturned the restrictions on union and corporate spending, The Supreme Court has long held that
Corporations are covered by the First Amendment. |
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