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Tuesday, October 25, 2016

The Campaign Finance Free-For-All: How We Got To This Point

The Campaign Finance Free-For-All: How We Got To This Point

by Justin Elliott, ProPublica

In a forthcoming law review article, Richard Briffault of Columbia Law School argues that the rise of Super PACs and unfettered contributions and spending this election cycle are “effectively ending the post-Watergate era of campaign finance laws.”

To help understand what is shaping up as a watershed election cycle, I asked Briffault to explain the path that took the country from stringent post-Watergate contribution limits through Citizens United to today’s multibillion-dollar free-for-all.

Briffault has written extensively about the history of campaign finance law. He has filed amicus briefs in cases on the side of defending regulation. His article on Super PACs will be published in the Minnesota Law Review.

Our conversation has been edited for length and clarity.

Can you explain how the 1976 Buckley v. Valeo case created the foundation of modern campaign finance law?

In the Buckley case the Supreme Court held that the First Amendment applies to campaign finance regulations, but it applies in different ways to different kinds of campaign finance activities. Contributions — that is, giving money to a group, a candidate, or a political party — are less protected. The court said that contributions raise the danger of corruption, that is, that candidates will feel indebted to their large donors, and also that contributions are less pure speech than expenditures.

The court said that an expenditure, which is money being spent on communications to the voters to persuade them how to vote, gets the highest level of protection. The court said that that kind of spending cannot be limited because it comes closer to pure speech and because it raises no danger of corruption.

A particularly difficult question involves what are called independent expenditures. Having reached the limit on the amount of money he is allowed to give a candidate, the donor might then just make an expenditure by taking out his own ads praising the candidate, or condemning the candidate’s opponent. In Buckley, the court said that so long as such an expenditure is not formally coordinated with the candidate, it will get the full constitutional protection of expenditures.

The first big loophole in the law that politicians exploited became known as “soft money.” The symbol of the soft money era was Democratic donors sleeping in the Lincoln Bedroom under President Clinton. How did that happen?

As a result of some rulings by the Federal Election Commission, the political parties were allowed to accept unlimited donations and corporate and union money so long as the political party used the money not for direct candidate support, but for background activity, like voter registration and get-out-the-vote drives and certain kinds of advertising that avoided express advocacy of the election or defeat of candidates. Because the money did not go for direct support of candidates — although it certainly helped candidates — it was considered “soft money” not subject to the restrictions on the “hard money” used for direct support of candidates.

The parties and their donors started to figure out soft money in the late 80s and it really took off in the 90s, peaking in 2000 and 2002.

So the famous McCain-Feingold law passed in 2002 and was upheld by the Supreme Court in 2003. Explain the system that law created.

McCain-Feingold stopped the parties from collecting and using soft money. Many experts thought the parties would be hit hard by the soft money ban, but in 2004 they actually replaced all the lost soft money by redoubling their efforts to collect more hard money from individual donors.

However, there was an immediate effort to get around the soft money ban through so-called 527 committees, which were named after a section of the tax code and were in effect a kind of political committee. The idea was that they would act independently of candidates, and engage in issue advocacy that helped candidates but did not expressly support them. The theory of the 527 was that they’re not working with the candidates and they’re not working with the parties, and they’re also not engaged in express electioneering. So they claimed that they could take unlimited individual, corporate, and union contributions.

How big a role did corporate money play in funding these 527s?

There wasn’t actually very much corporate money in the groups, but you did see large individual donations to organizations like MoveOn and the anti-John Kerry Swift Boat group. For the first time since Watergate, you began to see the first real appearance of million-dollar donations.

This is the last time the Federal Election Commission actually took any action. It brought enforcement actions against a number of the prominent 527s and several years later obtained significant multi-hundred-thousand-dollar penalties from them. The commission said that a number of the 527s had crossed the line into regulated electioneering and should have abided by the rules limiting contributions and disclosing spending.

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  • bcarreiro

    Are these donors anticipating a write off at the end of it all?

  • I live in Florida where we have been inundated for weeks by a barrage of negative ads sponsored and paid for by Super PACs such as Crossroads GPS. They blame President Obama for everything, from the collapse of real estate in 2007, to the financial mess in 2008, the subsequent economic malaise and the common cold! GOP ads are everywhere, on TV, radio, newspapers, we get flyers every day in the mail, and Romney road signs (Obama’s signs are pulled and can’t be found anywhere in North and Central FL.)

    • jarheadgene

      They can do all the DIRTY POLITICS they want….but in the end, IF GOD says NO to Romney, and I am PRAYING he does. Romney will be undone. Read the book of Esther you will see a Romney type. His name is Haman…..boy does he get his payback.


    How did our election laws get so screwed up? Is that the question? It’s because our election laws in the South were screwed up when the rednecks negated the results of the Civil War by passing such illegal laws like poll taxes and intelligence tests.

  • DirkVanden

    This has been the most despicable Presidential campaign I can remember. I’m almost 80 and have lived through 20 of them, Roosevelt & Dewey, Eisenhower, Truman, Kennedy, Bushes 1 & 2, Clinton , Obama, and their various challengers, and have watched some dirty campaigns, “mudslinging,” but I’ve never seen such a perversion of our democratic way of life as this current attempt to elect a functioning president. Romney has managed to change the campaign to his advantage by making it about money, making money, spending money, raising more money. That’s Mitty’s forte, making money. Now he has forced Obama to try to beat him at making money, not at governing, or doing what’s right for humanity, but who can raise the most money to buy the most commercials to LIE about Obama’s accomplishments and abilities and vilify him. The election should be an examination of Obama’s job in office and of Romney’s qualifications to do a better job. Instead it has become a kind of pissing contest. Now the daily headlines read: ROMNEY RAISES MORE MONEY THAN OBAMA! Duh!!!
    Then Romney uses all those billions to promote lies, outright lies, forcing Obama to answer those lies instead of defending his administration.
    Romney and Ryan are embarrassments to the country they want to govern. They are a step backward from Cheney & his puppet “UU”! if we elect them, then we truly deserve what we will get: a loss of women’s rights and gay rights and seniors’ rights. The unborn will be protected until they become women or Gay or old. We will also deserve those hordes of Mormon Missionaries, boys of 18 who genuinely believe themselves “Elders,” who will be knocking on our doors to save our souls and 10% of our earnings. Depend on it if Mitt gets elected.
    Obama has done all that could be done to reverse “UU’”s damage–against an obstructionist Republican congress; give him a democratic congress and 4 more years, and judge him then.

    • montanabill

      Even before Romney was the winner of the Republican primary, Democrats were boasting that Obama’s re-election campaign chest would be $1 billion.

      The real fact is, Obama has out raised Romney

      Your whole story is an untruth.

      • ObozoMustGo

        Hey Montana! Looks like Dirk mistakenly drank Jack Daniels instead of his Geritol. Sheesh… is that what happens to a mind when it nears 80 ys. old? I hope not. I’m more than halfway there.

        Have a great day!

      • Obama out raised Romney the last couple of months, however, most of the advertising we are seeing is not coming from the Romney campaign but from Super PACs, such as Crossroads GPS, acting as surrogates for Romney and free to make the most outrageous claims without damaging the credibility of the man they are helping.

        • montanabill

          Their money and the Romney campaign funds do not equal the amounts raised by Obama and his Super PAC’s. Almost all of that money has been used to try to demonize Romney. If Obama had a good record, it would have been spent bragging about it and telling us all the good things he has planned for the next four years. But that’s not the case, is it? He has even had to drop the phrase, “Al Qaida is on the run” from his stump speech.

          However, we do remember one of his memorable lines,

          “If you don’t have any fresh ideas, then you use stale tactics to scare the voters. If you don’t have a record to run on, then you paint your opponent as someone people should run from. You make a big election about small things.”

          Are ‘Big Bird’ or ‘binders of women”, big things or small things?

          • Small things often give you insight into the values and character of a candidate. When the best a candidate can propose to reduce deficit spending and accumulation of debt is to discontinue funding PBS I think it is fair to conclude that he has no idea how to accomplish that laudable goal, especially when he is planning to achieve it while restoring the MEDICARE $716B savings and DoD programs the Chiefs of Staff agreed are not needed.
            The “binders of women” is the latest in a long list of demeaning references directed at women by Republican candidates the last few months. Admittedly, it does not match legitimate rape, calling a young woman a whose because she supports the use of contraceptives and other crazy statements, but when everything is put together is shows a pattern that, I suspect, is disturbing to many women.

          • montanabill

            Romney was using PBS as the perfect example of government spending borrowed money where it wasn’t needed. I know you know that. He is also simply going to restore money taken from Medicare because he plans on getting rid of the extremely partisan and costly Obamacare program and replacing with something both sides can support. Seems like a pretty good goal to me. He has not said a word about restoring programs the Pentagon doesn’t want, but will restore a budget that will allow the Pentagon to keep us the strongest country in the world.
            He simply left the world ‘resumes’ off of his comment in the heat of a debate. If that is a big deal, so be it.
            None of the rest of your comment has anything to do with any Romney statement.

  • ObozoMustGo


    Let’s talk about the most important issue of the day: THE BENGHAZI COVER UP.

    Obozo was lying during the debate and the fat chick, Candy Crowley, covered for his lies. His speech in the rose garden said nothing about the planned and coordinated terror attack in Benghazi, but merely remarked about terror in general. He lied. It is now known that we had a predator drone over the consulate recording and beaming back the incident as it occurred to the White House situation room. They knew immediately, as it happened, that it was a planned, military-style, terror attack. How do we know he was not talking about Benghazi? Because for 4 weeks follwing 9/11 he and his useful idiot tools, like Rice, were going on TV and giving interviews and making speeches claiming the incident was from a spontaneous protest over a stupid movie trailer on YouTube. NEVER ONCE has Obozo ever admitted that the incident was a planned and coordinated radical Islamic terrorist attack. He lied and covered this up for a month. He is now doing the rope-a-dope by claiming an investigation must be done before they know what happened when they watched it.

    The question is why? I know why. Because the lie is less costly than that truth. What is the truth? Here it is.

    The Ambassador was a CIA operative working North Africa many for many years, definitely former, maybe current as well. He brokered the deals to get US weapons in the hands of the rebels (Al Qaeda and Muslim Brotherhood terrorists) to take over Kaddafi. The 2 ex-Navy SEALS were CIA operatives. They were in Benghazi without military protection because they were secretly trying to track down the weapons cache that we gave to the terrorists. How do we know the SEALS were CIA operatives? Because one of them was interviewed by ABC 1 week prior where he said that part of his mission in Libya is to find weapons stashes. He did not admit to being a CIA operative, but we do know this: Embassy guards and ambassadors DO NOT go looking for weapons stashes as a part of their duties. That’s also why the drone was flying above. It was helping to find the weapons.

    The reason Obozo is lying about this whole thing is that he does not want it to come out before the election that he has been supplying radical Islamic terrorist organizations like Al Qaeda with high tech US weapons. He is now doing the same exact thing in Syria. This should be the lead story on every newspaper and every TV news show, but they are in the tank for Obozo. Just like the fat chick Candy demonstrated very clearly during the debate.

    The truth will come out at some point. God willing, it will be before the election and Obozo will be revealed as the lying empty suit that he really is.

    Have a nice day!

    “If you tell a lie big enough and keep repeating it, people will eventually come to believe it. The lie can be maintained only for such time as the State can shield the people from the political, economic and/or military consequences of the lie. It thus becomes vitally important for the State to use all of its powers to repress dissent, for the truth is the mortal enemy of the lie, and thus by extension, the truth is the greatest enemy of the State.” – Joseph Goebbels