Thoughts, essays, and writings on Liberty. Written by the heirs of Patrick Henry.

“It does not require a majority to prevail, but rather an irate, tireless minority keen to set brush fires in people's minds.”     Samuel Adams

October 24, 2007

Federal Election Laws Become Even More Absurd

by Doug Mataconis

There’s little doubt that pretty much everyone in America who’s paying attention realizes that Stephen Colbert’s recently announced run for the White House is an elaborate joke. A well-played, funny, timely joke that is already pointing out the absurdity of the political system, but, still, a joke.

Well, everyone that is except perhaps the people at the Federal Election Commission:

Federal law bars corporations from contributing to candidates, either through donations or in-kind contributions such as free use of goods or services.

Media organizations are permitted to feature presidential candidates in covering campaigns.

But no precedent exists for a television network promoting and fostering a candidacy of one of its own talk-show hosts, said Lawrence M. Noble, a former general counsel for the Federal Election Commission. And comedian Pat Paulsen’s 1968 candidacy predated current campaign finance regulations.

“The real problem comes in the fact that he actually has his own show, talking about his campaign, paid for by a network,” Noble said. “These are the kind of things on slow days you’d debate until the late afternoon at the FEC, but there are serious questions that come up. In theory, he could end up having some campaign finance problems.”

While he has talked about his candidacy publicly only in character — as the combative faux-talk-show host who favors “truthiness” on “The Colbert Report” — Colbert is taking formal steps that are consistent with an actual presidential candidacy.

He has begun collecting signatures to get himself placed on both the Democratic and Republican presidential primary ballots in South Carolina.

And while he has said he’s in the race to run, not to win, he has talked about trying to win delegates to the Democratic National Convention.

“I think a lot of people are asking whether — they say, ‘Is this, is this real,’ you know?” Colbert said Sunday on NBC’s “Meet the Press.” “And to which I would say to everybody, this is not a dream, OK? You’re not going to wake up from this, OK? I’m far realer than Sam Brownback, let me put it that way.”

(…)

The FEC could consider Colbert’s entire campaign satire, which may allow corporate backing under the exemption that allows media organizations to report and comment on candidates as they choose.

But Colbert’s continued candidacy makes it more likely that he’ll actually have an impact on the election — which makes him difficult to ignore, Noble said.

“Everybody is very cautious, not wanting to take this too seriously, or to say that campaign finance laws are going to stop satire, or what is clearly a joke,” he said. “But he’s trying to get on the ballot, and he could in fact affect the election.”

If the FEC actually does start regulating Colbert’s campaign, then it would point out even further the absurdity of campaign finance laws. It’s already been well-established that the laws themselves do nothing to limit actual campaign fundraising — the first Presidential election after McCain-Feingold passed was, by all accounts, the most expensive in American history and the 2008 election looks to surpass it easily. The limits themselves serve no purpose other than to encourage people to find ways to circumvent them,  such as making donations in the name of their children in order to get around the limit on individual contributions. And every time a loophole is closed another one is found.

The solution isn’t more government regulation of campaign donations. Instead, we need to eliminate those requirements completely except for one — the requirement that all candidates for Federal office make complete disclosure of all donations received. That way, we will all know where everyone’s money comes from and can judge the candidates accordingly. Putting more power in the hands of the regulators just creates a system that is more friendly to incumbents and not at all helpful to voters.

H/T: James Joyner

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26 Comments

  1. I strongly adhere to two observations:

    1. Money plays far too large a role in political campaigns these days.

    2. Attempting to regulate campaign contributions is always a bad idea.

    I therefore agree whole-heartedly with Doug that the best we can do is make certain that all campaign contributions are clearly reported. I would recommend three steps in particular:

    a. beef up the transparency requirements so that it is crystal clear where the contribution is coming from.

    b. forbid campaign contributions from any person or entity who does not possess the right to vote.

    c. the Federal government should provide a website containing all details of campaign contributions, including research tools that make it easier for any citizen to track down the sources of contributions.

    However, there is one concern I have: just how much right to privacy should one have in regard to his campaign contributions? On the one hand, I am in general a supporter of strong privacy. On the other hand, I don’t like the idea of hidden campaign contributions. So, is it fair to publish the name and address of every contributor? I suppose so — but I have reservations. Can anybody come up with a clinching argument either way?

    Comment by Chepe Noyon — October 24, 2007 @ 11:02 am
  2. As long as an office holds power, it will attract a proportionate amount of money and that money will give a virtually insurmountable lead to those who are willing to trade favors.

    If that weren’t true, Hillary would have been scuttled by mere appearance of impropriety relating to the Hsu donations. The money more than makes up for the occasional bad press. If you still don’t believe me, why isn’t the evening news plastered with pretty charts depicting donations from special interests? Americans don’t care that much.

    You can apply as many topical pain relievers as you like, but you won’t get anywhere. Have fun.

    Comment by Jeff Molby — October 24, 2007 @ 11:55 am
  3. Jeff,

    As long as an office holds power, it will attract a proportionate amount of money and that money will give a virtually insurmountable lead to those who are willing to trade favors.

    An excellent point actually.

    As long as we have a government that spends trillions of dollars and regulates in one way or another almost every aspect of the economy, there will be people with interests at stake who will want to make sure that people who support them will be in power, and that they will have access to the corridors of power.

    Eliminate the spending and the regulation, and you eliminate the need for the corporate lobbyists and everything they bring with them.

    Comment by Doug Mataconis — October 24, 2007 @ 12:06 pm
  4. Chepe,

    How does this:

    2. Attempting to regulate campaign contributions is always a bad idea.

    turn into this:

    b. forbid campaign contributions from any person or entity who does not possess the right to vote.

    If corporations were forbidden from making donations out in the open, they will just turn to under-the-table transactions. Any office that wields power over a constituency will attract the power brokers, who will in turn attract the power hungry.

    Comment by Brian T. Traylor — October 24, 2007 @ 4:28 pm
  5. Brian, I think it fair to apply our standards equally. Corporations don’t get to vote; why should they be allowed to make campaign contributions? Corporations are not supposed to be political actors. They ARE political actors, but wouldn’t it be better to insure that they aren’t? If people want to contribute money to a campaign, then they should do so in their own names, not through the cover of a corporation.

    Libertarianism means “freedom for people”. It doesn’t mean “freedom for corporations”. Let them have civil rights, but not political rights.

    Comment by Chepe Noyon — October 24, 2007 @ 6:05 pm
  6. “These are the kind of things on slow days you’d debate until the late afternoon at the FEC…”

    If that were a private corporation, on slow days they would figure out ways to give their shareholders more value – like cutting the excess staff and payroll that clearly exist if they have the time to spend a slow day debating situations like this without ever coming up with an answer or plan of action. Asses.

    Comment by Wulf — October 24, 2007 @ 8:37 pm
  7. Wulf, your disdain reflects inexperience with the realities of organizational life. Every operation, government or corporate, has difficulties with “load leveling”. You can’t keep people working at exactly 100% load 40 hours a week, 50 weeks a year. In practice, the load varies. Sometimes, you have more work to do than can be done in the available time, and you cut corners and squeak through as best you can. Other times the emergencies are all under control and you can sit back and take stock. There are usually a large number of low-priority tasks that are waiting on the back burner for the right opportunity. The most common use of such time is “professional development”: workers taking time out to catch up on the latest ideas, techniques, news, and practices in their line of work. It seems to me that discussions of this sort fall into this broad category.

    It’s all too easy to sling mud at people when you have never done their jobs.

    Comment by Chepe Noyon — October 24, 2007 @ 9:10 pm
  8. Chepe,

    I don’t think you answered my question. How does noting that attempting to regulate campaign contributions is always a bad idea comport with a subsequent call for contribution regulation? Either it’s a bad idea or it’s not.

    Comment by Brian T. Traylor — October 25, 2007 @ 12:12 am
  9. You’re quite right, Brian. Please accept my corrected wording:

    “While attempts to regulate campaign contributions are in the great majority of situations unacceptable intrusions into the freedoms provided by the First Amendment which we all agree is of great importance to the maintenance of a healthy body politic, there remain a few special considerations arising from the activities of non-franchised parties which require a reasonable analyst to conclude that some form of exception to the general principle is worthy of careful consideration.”

    Better?

    Comment by Chepe Noyon — October 25, 2007 @ 10:22 am
  10. Better?

    No, it’s still bad policy. ;-)

    I still plan on getting back to you on the parenting thread. probably late tonight.

    Comment by Jeff Molby — October 25, 2007 @ 10:28 am
  11. Jeff, if unfranchised parties should have political rights, then you would have no objection to political contributions from, say, the government of Israel?

    Comment by Chepe Noyon — October 25, 2007 @ 10:51 am
  12. See my first comment, Chepe. You can regulate all you want, but power will always attract money. You don’t think the Israeli lobby isn’t already contributing through back channels?

    Comment by Jeff Molby — October 25, 2007 @ 11:31 am
  13. err, that probably would have made sense without the double-negative. Anyways, my point is that we should treat the disease, not the symptoms.

    Comment by Jeff Molby — October 25, 2007 @ 11:36 am
  14. OK, so you approve of contributions from foreign powers, so long (I suppose) as they are publicly declared. However, since you also approve of contributions from corporations, I deduce that you have no objection to, say, the government of China contributing a huge amount of money to the campaign of its favored candidate through a dense network of corporations, with only the last corporations in the networks showing up in the public records. This means that, in effect, the true source of the contributions would not be discernible to the public.

    You have no objections to such an arrangement?

    Comment by Chepe Noyon — October 25, 2007 @ 11:50 am
  15. If political offices have been stripped of most of the insane power they have these days, sure. As it stands right now, of course not.

    But don’t kid yourself into thinking China isn’t already tossing money around. The regulations only make it a little less brazen.

    Comment by Jeff Molby — October 25, 2007 @ 12:04 pm
  16. I agree that the overweening power-hunger of the federal government provides the incentive for the massive amounts of money that campaigns attract. It’s rather like the difficulty we have in stopping illegal drug shipments into this country: so long as the demand exists, the supply will be forthcoming.

    So the question is, how can we reduce the amount of money pouring in from such groups? Your position is based on an extension of First Amendment rights to corporations. It refers to “freedom of speech”, but does not indicate that this freedom is applicable to corporations. Of course, at that time, corporations were strictly business operations with no political role whatsoever, hence the issue never arose during the Constitutional Convention.

    Now, I can agree that there is another justification in the First Amendment: “the right of the people peaceably to assemble and petition the government” could be applied to corporations. Again, the historical context in which this was written is entirely different from the modern corporation, so I think that your application of the First Amendment to for-profit businesses is a bit of a stretch.

    We already have a small body of law dealing with political associations: the various laws regarding PACs. This body of law satisfies the intentions of the First Amendment, but we have never added the constraint the for-profit corporations may not contribute to PACs. Note that we HAVE established that non-profit corporations that participate in political activities lose their tax-exempt status.

    Let me be explicit about what I’m proposing here: I think that we should have a law specifying that every dollar spent on political activity must be traceable to a franchised US citizen as its original source, and published by the government.

    Comment by Chepe Noyon — October 25, 2007 @ 12:48 pm
  17. I was just teasing when I called it “bad policy”. I don’t actually care because I think the net effect would be minimal. Come see me when we’re ready to attack the source.

    Comment by Jeff Molby — October 25, 2007 @ 1:19 pm
  18. It’s pretty obvious to me that we’re never going to shrink government down so small that the cost-effectiveness of campaign contributions by corporations will go negative. So we have to deal with the situation as it is. What can we do to reduce the ability of corporations to influence elections? If you think that corporations don’t influence elections enough to be a cause for concern, then there’s no value in this discussion. But if you are concerned about the matter, then the question revolves around the trade-off between liberty and a sound democracy.

    Comment by Chepe Noyon — October 25, 2007 @ 2:18 pm
  19. It’s pretty obvious to me that we’re never going to shrink government down so small that the cost-effectiveness of campaign contributions by corporations will go negative.

    You don’t have to. You just have to get their cost-effectiveness back in the same stratosphere as the cost-effectiveness for the average citizen.

    If you think that corporations don’t influence elections enough to be a cause for concern

    I definitely agree, but I don’t think you’ll make a noticeable dent treating the symptoms. I think our only hope is to elect a series of men along the lines of Ron Paul. That doesn’t mean that you have to implement all of his policies or anything, but we have to start moving in that direction or else the question of our demise will be “when”, not “if”.

    Comment by Jeff Molby — October 25, 2007 @ 3:01 pm
  20. Jeff, you’re suggesting that addressing corporate contributions directly is unrealistic, and you propose as a more realistic approach the election of Ron Paul?!?!?!? There’s a lot to like about Mr. Paul, but scenarios involving his election to the Presidency are not realistic.

    Comment by Chepe Noyon — October 25, 2007 @ 4:58 pm
  21. Wulf, your disdain reflects inexperience with the realities of organizational life.

    That’s a neat and possibly insightful trick you’ve got there. If I tell you my opinion of the slackasses at the DMV, could you pull my entire work history and resume out of thin air, or are you just talking out of your back door with regard to my experience?

    Comment by Wulf — October 26, 2007 @ 7:31 pm
  22. It depends on your goal, Chepe. If you’re content to simply slow the bleeding, I’m sure your approach is realistic. If you think you can reverse our descent, I think your expectations are fantastical.

    To neutralize the fiscal power of corporations through regulation, you’d need one of two things to happen:
    1) An enforcement system of unprecedented effectiveness OR
    2) All businessmen become altruistic

    I need one thing to happen; I need America to rediscover its heritage. That’s not terribly likely, of course, but there is a precedent for it, so it could happen. If it does, the campaign contributions problem will disappear as a matter of course.

    Comment by Jeff Molby — October 26, 2007 @ 8:31 pm
  23. could you pull my entire work history and resume out of thin air, or are you just talking out of your back door with regard to my experience?

    No, I have no idea what your background is. What I do know is that your statement could only be made by somebody who doesn’t understand the realities of organizational life. It may well be that you have tons of experience with organizational life, but never learned anything from that experience. In any event, your comment was a cheap shot.

    Comment by Chepe Noyon — October 26, 2007 @ 10:47 pm
  24. Nah Chepe, you had it coming.

    Your point about load leveling was perfectly valid, but you went further than that and made personal assumptions about Wulf.

    Ya shoulda just stuck to the facts.

    Comment by Jeff Molby — October 26, 2007 @ 11:38 pm
  25. You’re right, Jeff. I should indeed have just stuck to the facts. After Mr. Wulf had taken such a nasty shot at the FEC lawyers, I thought he deserved to be responded to in kind. In the process, I lowered myself to his level. Mea culpa.

    Comment by Chepe Noyon — October 27, 2007 @ 12:01 am
  26. What I do know is that your statement could only be made by somebody who doesn’t understand the realities of organizational life.

    Um, not exactly. But I will content myself with the comment you made at 12:01. No need to keep yourself awake at night anymore over the inequities between my taking cheap shots at FEC lawyers and not always having somebody to cheap shot me back. You and I can call it even and I’ll just be cozy with their situation in life now that I’ve been put in my place.

    Comment by Wulf — October 27, 2007 @ 1:23 pm

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