Constitutional Law

Raising Money Is Hard. I'm No Obama.

|

Yesterday the U.S. Court of Appeals for the 9th Circuit heard a challenge to Arizona's Clean Elections program, which provides matching funds to participating candidates whose opponents outspend them. In January, the day before the Supreme Court overturned restrictions on political speech by corporations in Citizens United v. FEC, a federal judge in Arizona ruled that the state's system of taxpayer-funded subsidies for candidates who want to escape the burdens of raising money amounts to an unconstitutional penalty for the speech of their unsubsidized opponents. The timing was fortuitous, since public funding of campaigns is one of the solutions proposed by critics of Citizens United. Whichever way the 9th Circuit rules, the Supreme Court is likely to hear the case, thereby setting the stage for the next major battle over campaign finance reform.

Institute for Justice attorney Bill Maurer, who argued against the Arizona system yesterday along with the Goldwater Institute's Nick Dranias, sums up their case this way:

Matching funds burden the free speech rights of candidates, citizens and independent groups. The First Amendment does not tolerate government action that puts a thumb on the scales in favor of publicly funded candidates.

The Arizona Republic reports that uncertainty about the future of Clean Elections has not noticeably dampened state politicians' eagerness to spend other people's forcibly extracted money on their quests for power. "Over 50 percent of candidates are using it this time," says Citizens Clean Elections Commission Executive Director Todd Lang, "despite all the opposition."

I.J. has background here.

NEXT: It It Too Early to Fight About Justice Scalia's Replacement?

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. I don’t like this. I hate all ‘money = speech’ ideas. Speech is speech, money is money. If you spend money on speech, that’s not the same as making a donation to a candidate. But making a donation to a candidate is not interfering with his opponent’s right to speech.

    1. Taxpayer funding of a candidate is not a “donation”.

      1. Granted. But what does taxpayer funding have to do with the First Amendment? 1:1 taxpayer funding of campaigns seems unfair, but I don’t see how it’s a First Amendment violation.

        1. I would actually approach the case a different way: giving a taxpayer’s money to a candidate violates the taxpayer’s right to free speech, because the taxpayer might oppose the candidate, yet is forced to promote the candidate’s speech via taxes.

          1. That is an interesting take.

          2. I’m still not sure I’d call it violating the taxpayers speech rights. It certainly could be a violation of taxpayer rights, possibly to free association or something, but giving the candidate money to spend on nicer hotels or a guy to bring his campaign staff mocha lattes isn’t supporting his speech via taxes, per se.

            Unless you define all campaign expenditures as speech.

            1. I would definitely define all campaign expenditures as speech, because if they can be written off/defined as specifically for the campaign, then they are for the “speech” of the candidate.

              1. Paying the pollster is speech? Palin’s wardrobe? Obama’s vacation? I don’t know Epi, that’s a stretch imo.

                This is why I can see limits on donations per se as OK, but maybe not so much on a campaign’s speech related expenditures (the printing of the pamphlets, the purchase of air time).

                Though I grant you it’s a fine line. The pollsters work helps craft the script for the pamphlet…

                1. The very fact that they can be classified as “campaign funds”–however that is done–means they can therefore be associated with the campaign, which, as a whole, is candidate speech.

                2. Well, flag burning isn’t technically “speech” in that sense, but it’s expression. If you start banning stage props and nationalizing theaters, you’re impeding the right to perform plays. If you exercise control over most or all physical presses, you can neutralize any hypothetical “freedom of the press”.

                  There are any number of ways for an illiberal government to cripple its peoples’ ability to express themselves without directly attacking the spoken word or the speaker, and we should be vigilant of those who create rationalizations for de-facto censorship.

                3. Polling finds out what part of the candidate’s message is working or not, and wardrobe comes under packaging. If you are looking for a new job, would you not consider getting a new suit for your interviews?

              2. OK, I could buy that. It’s still not what the IJ guys are arguing, however.

                “Matching funds burden the free speech rights of candidates, citizens and independent groups.”

                I can see the problem of citizens and independent groups, but not necessarily candidates.

                Unless it was a self-funded candidate. I could certainly see a guy who empties his nest egg to run against, say, Joe Fucking Arpaio, being really really pissed off when he spends his retirement to defeat an evil fuck, only to see Arpaio get a big fat check from the taxpayers.

                Definitely a shitty situation.

          3. That argument is going to be a non-starter. It would mean that the government could not fund any speech whatsoever since at least one taxpayer will disagree with anything.

            You and I might have no problem with such an eventuality, but in reality it’s not going to be allowed to happen.

        2. It’s not a first amendment violation, it’s a violation of the election neutrality principle. The government should not be directly financing one candidate in an election while refusing to fund others.

          1. I can see one sense in which is non-neutral as it does not fund the one guy, but can you see how it could be seen as neutral in the sense that it levels the playing field?

            Consider a bike race where one guy has a much better bike than the other guy, so we give the second guy the same bike as the first. Is that not neutral? It almost strikes me as the height of neutrality…

            1. If you want to chip in to pay for a nicer bike for one of the racers, that’s cool, man. But don’t ask me to. See, we’ve got a perfect analogy!

              1. Well, that’s a different condemnation I think. It might be unfair to compel you to make the race more fair, but my point was it can be seen as in fact making the race so (as between the racers).

            2. Spending time to raise money decreases the time available for actual campaigning (ie, recruiting volunteers, making public appearances to woo undecided voters, etc). It also opens one up to criticism if one gets money from an undesirable source.

              So, a better bike race analogy would be where one racer spends time raising money for his equipment that the other racer spends working out to build up his strength. Then the egalitarian race organizers go and give the second guy the same bike, so the first guy’s time was just wasted.

              1. Some people don’t just start out with a better bike (more money)? It’s naive to think that every candidates fundraising advantage is a result of tireless effort…

                1. Just as naive as assuming that every candidate’s fundraising advantage is due to luck and his or her parentage! Perhaps we should just keep the govt’s filthy paws off the process so we don’t have to assume either way.

            3. At some point the government has to make to some limit on who qualifies for funding, that’s where the moral hazard starts creeping in. Those kind of regulations are the ones that get manipulated by the major parties to shut out competition.

              If the first guy spnet years designing a better bike, simply having the oragnizers give a similar quality bike to a rider who just did not care is not necessarily neutral.

        3. …taxpayer funding of campaigns seems unfair, but I don’t see how it’s a First Amendment violation.

          Yeah? Try buying a book with the taxes taken from you for the candidate receiving those funds.

  2. “Over 50 percent of candidates are using it this time,” says Citizens Clean Elections Commission Executive Director Todd Lang, “despite all the opposition.”

    If you give away money for nothing people will line up for it. Who knew?

    1. Depends on the restrictions put on getting the money. Usually the candidates who are successful at raising large amounts of money (usually from unions, at least in Hawaii), ignore the public financing because it limits the total amount they can spend.

  3. Speech is speech, money is money.

    This is true to the extent that the First Amendment protects only your right to free conversation.

    Once you try to spread your message beyond those within range of your unaided voice, you are using money to do so.

    1. I’ve worked on some campaigns. Donations are used for a lot of different things. When it’s used to make signs or a commercial or pamphlets it seems pretty clearly to be speech. When it is used to buy clothes for the candidate or to pay a pollster it seems less so. How can we determine which donations or parts to candidates are speech?

      1. When it is used to buy clothes for the candidate or to pay a pollster it seems less so. How can we determine which donations or parts to candidates are speech?

        Why do you care how much a candidate spends on cloths. The intent of finance reform is to limit spending on speech…not polling.

        1. I’m not sure that is the only intent of finance reform. In fact the one i hear the most is to counter the image of corruption. And buying a candidate some nice shoes might conjure up such an image…

    2. Right, and I think that that restricting the money one spends on speech is a restriction of that speech. Thus I’m OK with the argument that McCain-Feingold’s restrictions on corporate speech were a violation of the First Amendment. If anyone under any circumstances spends money to speak on a political topic, that speech, and therefore the money they were required to use to speak, are protected.

      But in this case, IJ et al are arguing that giving money to a candidate is somehow interfering in the speech rights of his opponent. This is ludicrous. If you say that it’s an unfair advantage to an opponent, I could buy that, but I don’t see how it has anything to do with the First Amendment. It’s not abridging the opponent’s speech rights. It may be a thumb on the scales of money, but that money isn’t speech.

      1. So if the Methodist church raises $100,000, and the government gives $100,000 to the Presbyterian church down the street in the interest of “fairness”, you don’t see a problem with that. Since money isn’t religion.

        1. What if the Methodist Church has megabucks and builds a nice, big ass church and the state builds a church just as nice and big and allows competing churches, on neutral criteria, to vie to use the church? And they state that if the Methodist church were to go bankrupt, hey they could use it on the same terms. And the justification is that fostering spirituality is good for the public (let’s assume no establishment clause as if that was the heart of your analogy then I call ‘weasel’).

        2. Well, the government is strictly forbidden to ‘establish’ religion. I would argue that money is neither religion nor speech, but it could certainly be construed as establishment.

          1. But there’s no forbiddenness to establishing speech.

  4. If raising money is that hard, just move to Britan:

    Why work when I can get ?42,000 in benefits a year AND drive a Mercedes?

    The Davey family’s ?815-a-week state handouts pay for a four-bedroom home, top-of-the-range mod cons and two vehicles including a Mercedes people carrier.
    Father-of-seven Peter gave up work because he could make more living on benefits.
    Yet he and his wife Claire are still not happy with their lot.
    With an eighth child on the way, they are demanding a bigger house, courtesy of the taxpayer.

    Read more: http://www.dailymail.co.uk/new…..z0l17IOYny

    1. That is one ugly family.

      1. In more ways than one.

        1. If I were those parents, I’d be embarrassed. And not just because I would be aggressively unattractive.

    2. And she adds: ‘I’ve always wanted a big family – no one can tell me how many kids I can have whether I’m working or not.’

      I wonder how many more she would have if the state’s tit dried up?

    3. AAAARRRRRGGGGAAGASHSGSGSAGAARRGGH!!!!!!

  5. So let’s think about this. I would guess donations would plummet to nothing. After all, what this basically means is that you’re donating to one candidate directly, and you’re donating the same amount to the other candidates through taxes. Why bother?

  6. Only private entities with large amounts of money have the right to put their thumb on the scales in elections, after all.

    1. Re: Tony,

      Only private entities with large amounts of money have the right to put their thumb on the scales in elections, after all.

      “But would you rather have anarchy???”

      🙂

    2. Absolutely. Elections are basically the only means left by which government can be controlled by the people, now that any semblance of constitutional limits has been abandoned, so under no circumstances should governments be allowed to interfere in electoral campaigns.

      1. You mean like setting the eligibility requirements, the time, place and manner of the polling, etc? Dude, it’s like you are arguing the NFL shouldn’t be allowed to make rules on how NFL teams compete.

        1. I mean, the government not interfering in elections? Elections are organized and held BY the freaking government!

          1. elections /= electoral campaigns

            Very different entities.

        2. Those activities are far less interfering in the election than simply giving money to one candidate and not another.

          The NFL is a poor comparison as it is a private organization, and one that is better off when every team has a chance to win games. There are plenty of potential candidates who we are all better off not having a chance to get elected. (Of course, the NFL also does, via revenue sharing and salary caps, exactly what the AZ govt proposes to do)

          1. Yes, the NFL believes competitiveness to be a good thing, just as AZ does. That doesn’t tell you something about the at least theoretical defensibleness of such a scheme?

            And deciding how long and where the polls are, and what qualifies a voter, are certainly as “intefering” as effecting campaign funding. It’s more fundamental I would argue.

            1. As I stated, the NFL is a private organization. If the Lions win the Super Bowl, that doesn’t give Jim Schwartz the power to take money from you by force (or at least borrow it on your credit) and spend it on his pet projects.

              The point of the NFL is to make money by entertaining fans. If taking money made in the Boston, New York, and Chicago markets, and handing it off to the Jacksonville Jaguars makes them more competitive, it makes the games more suspenseful and exciting, furthering the purpose of the NFL.

              Handing millions of dollars off to the Larouchies and the Prohibition Party is NOT going to improve our electoral process.

  7. So the state cannot decide that evenly resourced campaigns are in the public interest and spend money to that effect.

    1. Oh, it CAN — it just shouldn’t.

      1. Oh, I agree as a matter of policy. Matching funds have always struck me as equally silly and unfair. But it strikes me as constitutional.

        1. Constitutional at the state level, perhaps.

          My copy of the federal Constitution contains no such enumerated power. Does yours?

          1. My copy gives the federal government the power to tax and spend for the common defence or the general welfare. Surely Congress could decide that spending money to make elections more competitive serves some public good.

            And as much as I’d like to lead in some nut trying to show his con-law smarts by rambling about the general welfare clause being in the preamble, let’s save us all time tonight and specify that there is another general welfare clause in the taxing and spending clause. That’s what I’m referring to.

            1. The Congress shall have power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States;

              That clause grants the power to collect taxes, duties, etc. There is no “and” before “to pay”, so it is the taxes and duties collected that are said to pay debts and provide for the general welfare and common defense, not the power being granted to Congress.

              Plus, your interpretation makes the subsequent 17 clauses granting powers superfluous, as each could be covered by common defense or general welfare. Do you think the Founders were idiots, or that they were getting paid by the word?

              1. There is no and, there is a “to.” Certainly Congress decides whats in the general welfare, and they can tax and spend “to” provide for it.

                I’m not sure it undercuts the subsequent 17 clauses (to regulate the armed forces? habeas corpus? to establish copyrights?) superflous.

                I’m curious, wtf power do you think this clause grants? Under your reading it seems this clause is superflous.

                1. The clause grants the power to collect taxes and duties. These taxes and duties are to pay debts and provide for the general welfare and common defense. They cannot be used for other purposes.

                  I don’t see how you get the interpretation from the actual text. The first “To” grants the taxation power to Congress. The second “to” obviously must apply to the taxes themselves, since it is not preceded by “and”.

                  1. Without that clause, it would be practically impossible for any of the other enumerated powers to be exercised. That is why it is not superfluous.

                  2. “These taxes and duties are to pay debts and provide for the general welfare and common defense.”

                    Yes, and surely Congress decides what is in the general welfare and common defense. They can, as you say, spend the taxes and duties on such things. Here the Congress could decide that competitive elections are in the general welfare and spend tax and duty money accordingly.

                    Right?

                    1. I don’t see anything there saying that Congress decides what general welfare is. Any more than the First Amendment says Congress decides what the freedom of speech and establishment of religion are.

                    2. Some Congressional “decisions” are off the table, Constitutionally speaking. If Congress decided that the general welfare required that MNG go to prison, just because, that would run afoul of the ban on writs of attainder. Frinstance.

                      Once you take away all the decisions that are not legal options for Congress, then it’s true that Congress can pass laws for the general welfare or for defense (and can raise taxes to support these laws).

                      But, note, pork does not serve the “general” welfare, nor do corporate subsidies, nor entitlement programs, even for the neediest members of our society — particularly for the neediest members of our society, since they’re as far from general as it gets.

                    3. If Congress decided that the general welfare required that MNG go to prison, just because, that would run afoul of the ban on writs of attainder.

                      But that action would still be excluded even if all of Article I Section 8 were cut out of the Constitution. So not only have the other 17 power grants been rendered superfluous, but the general welfare clause itself is superfluous.

                      So I guess a better formulation of my question would be: is there any Congressional action that is excluded by the general welfare clause but not by any other text in the Constitution? If not, the general welfare clause itself is superfluous.

            2. More succinctly, your interpretation renders the entire clause ungrammatical. The correct grammar, if that is what they meant, would require and “and” before “to pay the Debts…”

              1. …require an “and”…

        2. I disagree. This case appears to be about the government funding one side in an election. Ostensibly this would be to “even things up” if they couldn’t raise enough money.

          But who is to decide which candidate gets support? Why doesn’t the libertarian candidate get the same 100 million dollars? What about the green party candidate? How about the People’s Front of Judea?

          The whole idea of these subsidies is that we will always have a two party system, and when the Democrat doesn’t have as much money as the Republican, we’ll use taxpayer money to fund the Democrat. Government funding of election campaigns is nothing more than an attempt to maintain the status quo and ensure that no 3rd party candidates can gain traction. Simultaneously, it is intended to act as a backstop for Democrat candidates in areas where they are not able to compete in fund-raising. In many jurisdictions, candidates run for office unopposed. Presumably this is because fielding a candidate with the ability to win and raise enough cash is too difficult. Fully funding the candidate who spends less would allow candidates from the big 2 with less traction than the libertarian or green party candidate to fully engage in the election, swamping the minor party candidates.

          Because these funding systems invariably have to discriminate “serious” from “fringe” candidates, you really do have a government that is choosing your candidates for you. This is not a good or free thing.

          1. This is an excellent point. As long as the “matching” funds go to one of only two parties, it’s really just bullshit.

            1. I guess the argument would be that the public good served is just to make elections more competitive or to ensure that one guy doesn’t heavily outweigh the entire field, not to make every possible candidate equally funded.

              I imagine they have some messed up trigger like with the public debates that is at least defensible but which in effect gives the big two parties an monopoly…

    2. I want to run as the kill babies and eat kittens candidate but i cannot get private interests to donate to my campaign. I think the government should pay for my campaign equal to what my opponents are getting.

      1. I guess the idea is like arts subsidies: the polity is a better place when there is support to get ideas and candidates of the ground that normally would not. And then a principle of neutrality amongst ideas and candidates would mandate that yes, your kitten killing platform gets a hearing too…

        1. Please demonstrate how campaign finance laws, or public election financing, have actually accomplished this goal.

          We can’t afford to give money to every whackjob who has unusual ideas out there, so there’s going to have to be some viewpoint discrimination. And that viewpoint discrimination is done by elected officials and their appointees.

          1. Well of course if the laws don’t do what they are meant to that’s a good reason to oppose them. I thought we were dicsussing whether they were defensible in theory or not.

            1. If your justification for a law that restricts speech is that it serves a valid public purpose, then you must show that it actually serves that purpose. If it both violates a right AND fails to accomplish its stated purpose, then it is unconstitutional.

              1. Certainly the legislature is given deference as to whether a law actually serves the purpose it rationally purports to (think “secondary effects” obscenity laws)?

                1. Besides, fostering innovative ideas need be only one justification, the other, to foster more competitive elections, is certainly served by the law…

                  1. Competitive elections per se do not benefit anyone but local media companies.

                2. It is, but it shouldn’t be. I take violations of constitutional rights a bit more seriously than our blackrobed overlords.

                  1. That was in response to MNG’s comment about deference to legislatures.

  8. According to the article, there are nine candidates for Governor signed on as publicly funded candidates (including the Libertarian).

    So every dollar a privately-funded candidate receives leads to nine dollars from public funds given to other candidates. It seems like it would be pretty easy for a local TV station to game the system to receive more money that it spends by contributing to a privately funded candidate and selling ads to the other nine newly-rich candidates.

    1. According to the article, there are nine candidates for Governor signed on as publicly funded candidates (including the Libertarian).

      So every dollar a privately-funded candidate receives leads to nine dollars from public funds given to other candidates.

      I guess I should have read the article before shooting my mouth off. This is an excellent point. In fact, if they haven’t already thought of it, they should definitely listen to you. A consortium of local TV, Radio and print producers should conspire to fund the best financed candidate as much as possible. They are fairly well guaranteed at least a 100% return on their investment in a very short period. This is a no-brainer.

  9. Another interesting point about Arizona’s law: it count’s third party expenditures as well. So if “citizens for Joe” puts on ads in support of Joe, the government kicks in an exact match for each of Joe’s opponents. This actually does disadvantage Joe, particularly if he is not coordinating with “Citizens for Joe”, as is normally required.

    It is also a wide-open opportunity for manipulation. Bob could put together a sham “Citizens for Joe” group that runs poorly conceived advocacy ads in “support” of Joe. Bob then gets the extra cash, and Joe gets the negative backlash of the poor advertising by “Citizens for Joe”.

    1. This is brilliant! Combine this scheme with the media company scheme and you could have a TV station funding attack ads against an opponent they don’t like, run on behalf of another candidate they don’t like, and decide the election by steering public funding to the candidate they do like. All while directing taxpayer funds directly into their bank account.

      1. You’re catching on. All laws and regulations regarding elections are written by Big Advertising.

  10. Go suck Ron Paul’s dick, Sullum, you slimy little slug.

  11. Here in Arizona, the Clean Elections law has an even better way of punishing the candidate that doesn’t sign up for the matching funds.

    Candidate A is not taking the public money. Candidate B is. Candidate holdsA holds a fundraser. Lets say he raises $10,000 gross. Expenses to raise that were$ 2,500. Candidate A netted $7,500 for his campaign. Well, The Clean Elections commission only looks at the gross amount and gives $10,000 to Candidate B. Thats how you level the playing field here.

    So by not signing up to suck off the public , Candidate A really getting screwed by going the traditional route

    1. I’m in. I am moving to AZ and running for something. I have been wanting to leave CA anyway.

      1. Please don’t. We already have enough Cali-holes here as it is.

        1. agreed

    2. by not signing up to suck off the public , Candidate A really getting screwed by going the traditional route
      reply to this

      Oral sex has a long tradition too.

  12. “How can we determine which donations or parts to candidates are speech?”

    The consequences of gov’t interference always include the need for more gov’t interference. The supposedly good idea of leveling the field then leads to no hope candidates spending the funds on the high life ( Al Sharpton, anyone?)instead of Speech, which leads to gov’t agents deciding who is viable. etc. etc. etc.

    1. Seriously, some of these candidates seem to be running a Producers type scam with their campaigns.

      Obviously it didn’t become an issue since he wound up getting the nomination, but the McCain campaign took public financing and then took out loans from private banks with that public financing as backing. So he was in the situation where he couldn’t pull out of the race even if things went badly, because that would violate the terms of his loan.

Please to post comments

Comments are closed.