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Running head: CAMPAIGN FINANCE AND ELECTION LAW

Campaign Finance and Election Law


JT Haste
First Colonial High School Legal Systems Academy

Abstract
Campaign Finance and Election Law as a whole is rather complex. Upon research and peeling

back the layers of the complicated legal doctrines that exist in the US, some things became clear.

Campaign finance law today, is a heavily criticized part of the United States legislation, likely

for good reason. The debate mostly surrounds the topic of whether or not the federal government

in the US should make campaign laws stricter because our system is too corrupt or less strict

because our system violates our rights. In the past, and today, campaign finance has been heavily

dependent case law from the Supreme Court who through a number of important decisions over

the past 40 years have completely controlled the level of restriction in elections. Another

common point of debate are Super- Political Action Committees, or Super-PACs that have

become a way for candidates to indirectly raise money for their campaigns. One final assertion

about campaign finance laws is that they are different across the US, on the state level, and
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worldwide, you can expect that each country should have its own laws and restrictions on the

way candidates can raise money to advocate for themselves.


keywords: campaign finance, election, political action committee, candidate

Campaign Finance and Election Law


Campaign finance law is a very complex set of precedents and legal doctrines that is

constantly evolving and changing. On both the state and federal level in the United States,

candidates for elected office are always breaking the rules, and the rules are always being

corrected. In the 2016 election cycle alone, over one billion dollars was raised by Super-PACs,

compared to the about 850 million dollars raised during the 2012 election. This money was spent

by political action committees on advertising and other campaigning to persuade the thousands

of American voters who are undecided about who they will vote for leading up to an election.

Each election, these massive expenses to fund a candidates bid for president, senate, or governor

get bigger, and bigger. Campaign finance law is the legislation surrounding how candidates for

elections can fund their campaigns for office. These laws vary from state to state and from

country to country. In the US though, these laws are heavily dependent upon case law from the

Supreme Court. Since the total amount of money spent on congressional and presidential

political races has increased almost every election cycle for the past 20 years, campaign finance

as a whole, isnt going anywhere anytime soon (Allison, 2016).


Contribution Limits
One common method for the government to prevent corruption in elections is by setting

contribution limits. These are limits on how much money certain sources can contribute to

candidates for state and federal office. This is sometimes a quite controversial method.
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According to Johnstone (2014), contribution limits exist to prevent corruption that results from

large individual financial corruptions. These contributions flood a campaign with money, and this

money can easily be used to swing voters. Its for that reason that these contribution limits exist.

Lillian BeVier, a distinguished professor of law at University of Virginia, advocates strongly

against the use of regulations suggesting that there are numerous reasons why campaign reform

that restricts raising campaign is detrimental to the campaign process. There is a strong belief

held by BeVier that restricting campaign finance downright violates constitutional law.

Specifically, it violates the freedom of speech portion of the First Amendment. In theory, she

notes that there are utopian like ideas that campaign reform will completely even the playing

field and equalizing the political process but instead the complex rules put in place make it

impossible to rationalize the complex politics and laws behind it. The author also goes into depth

arguing that quid pro quo situations that are allegedly so toxic to the campaign process virtually

never happen because of how hard they are to arrange between a candidate and the donating

individual or corporation and because there is never a concrete expectation that the politician will

return a favor because of a generous financial contribution (BeVier, 2002).


John Sutton III, the coordinator of policy and constituent services for Virginia Beach City

Public Schools and an expert on politics and government, added that no candidate has a definite

advantage in a campaign because of money. He points out that in the 2004 Democratic Primary,

Howard Dean raised 40 million dollars and still lost to John Kerry who didnt raise nearly as

much. Sutton notes; Money without the message goes nowhere. To support this, he also uses

the example that Jeb Bushs super-PAC this year raised more money than Barack Obamas did in

2012, and Jeb Bush ended up dropping out without winning a single state in the primary (John

Sutton III, personal connection, November 23, 2016). The overall effectiveness of limiting the

contributions a candidate can receive or the amount of money a candidate can spend is blurry to
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say the least. Although it doesnt seem like the candidate with the most money automatically

wins, it does seem like having a lot of money is basically a necessity to even be in the running.
Constitutionality
Sarah Harding of the Loyola School of Law points out that through the First Amendment,

people both have the right to know who is donating money, through disclosure, as well as the

right to privacy when they donate money to a campaign. It is a constant struggle to balance these

two points. Harding says that in the past, things like the Federal Election Campaign Act (FECA)

and Supreme Court case Buckley v. Valeo sided with disclosure and required campaigns to

provide detailed reports on how much money they are taking in and spending. It also put into

place strict contribution guidelines that limited the money that could be spent. Harding also

noted that there as a whole aren't nearly enough guidelines for campaign finance and the

restrictions are too loose. It also points out that campaign finance could be dangerous to first

amendment rights if mishandled (Harding, 2015).


Joel M. Gora, a professor of law at Brooklyn Law School and writer for The New York

Times, argues that argues that limits on giving and spending violate the first amendment. These

limits prevent any third party from being able to criticize politicians during a campaign year. The

limits set forth by the Federal Election Campaign Act were bad because they closed discussion

and debate. Over time the Supreme Court has invalidated many of the provisions from the

FECA. The FECA was wildly inconsistent from the start. Gora says that the FECA "was

inconsistent with the core principle of the First Amendment and of democracy, namely, that we

need more discussion and debate about government and politics, not less. Although some of the

FECA was invalidated, it still kept the provision that set a limit of $1,000 on contributions to

candidates that favored incumbents and made it difficult for any third party to gain traction in an

election (Gora, 2014. In conclusion, although it is somewhat of a misrepresentation to say that

money if a form a speech that is expressly protected by the First Amendment, it is likely
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unconstitutional to tell an organization such as a corporation or union that isnt directly

connected to any candidate that they cant run a newspaper or television ad that is meant to

persuade people politically. The legal doctrine needs to walk a line that doesnt violate the First

Amendment while sensibly saying what candidates and groups can and more importantly cannot

do.
Super Political Action Committees
Super Political Action Committees, or Super-PACs, are mouthpieces for advertising and

supporting candidates that operate with little government oversight. According to Gregory Krieg,

Super-PACs are groups that can essentially accept unlimited political donations without

oversight from government. The main cause or reason for this type of big money campaigning is

because of the 2010 landmark Supreme Court case, Citizens United v. FEC. Before the Citizens

United case, political action committees were heavily regulated tools to fund campaigns.

Individuals were only allowed to give $2,500 and unions and corporations were strictly

forbidden from giving any money versus today where that is not the case. The 2010 Citizens

United decision did away with all limits on giving money to political action committees, giving

free range to corporations and unions to push through candidates with their financial resources

(Krieg, 2012).
The effects of this can definitely be seen throughout this past election cycle where

according to an article on countable.us, well over one billion dollars was raised by Super

Political Action Committees. This, compared to the 853 million dollars raised during the 2012

election cycle by these Super-PACs. Nearly 20% of this was raised by just ten wealthy donors.

Four of those donors put their money towards Priorities USA Action, a Super-PAC primarily

funding Hilary Clinton bid for nomination and election for president. 674 million dollars was

spent on television ads to sway people to vote a certain way or support a certain issue (Mimms,

2016).
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The heavy use of these Super-PACs during this recent election cycle is likely

controversial for good reason. According to Russ Choma, both Hilary Clinton and Donald Trump

are using Super-PACs or political action committees to fund their campaigns in illegal ways. Two

complaints were filed with the Federal Election Commission (FEC), one against both candidates.

They argue that the two candidates arent properly coordinating with the super-PACs that support

them. Choma says that these Super-PACs are given wide latitude when it comes to fundraising

and spending money. These committees can raise unlimited money with the excuse that its ok

as long as the candidates themselves arent involved (which they likely are). As a result, the FEC

has been criticized for not effectively and efficiently doing its job to hold these candidates

accountable. Loopholes are being heavily used by the candidates to use as much money to

support their campaign which is a problem (Choma, 2016).


Due to case law from the past several years, this type of development seems

commonplace in todays political world. Super-PACs have dominated the past few election years

in many ways. The groups raise most of the money that go into campaigning. They are often the

center of political debate where pundits argue of their legality and effectiveness. One thing that is

certain is that these Super-PACs arent likely to go anywhere anytime soon. They are a staple of

the current campaign finance machine we have in the United States. The only way they could be

effected would be if there was a major federal law put into place to restrict them or if the

Supreme Court set a new precedent, making the Citizens United case null and void in the US

federal elections.
Relevant Acts and Case Law
Supreme Court Cases
Buckley v. Valeo. Mainly due to the controversial Watergate scandal, limitations were

created on the amount of money an individual could contribute to a campaign. The main point of

doing so being to eliminate corruption in the elections. The Federal Election Committee (FEC)
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was created to enforce this statute. This 1975 Supreme Court case essentially answers the

question of whether the limits placed on electoral expenditures violate the first amendment of the

constitution. The court decided two main things. First, that restrictions on individual

contributions to political campaigns did not in fact violate the First Amendment and that these

restrictions on individual contributions were the best way to passively prevent corruption in

elections. Second, they decided that restrictions on independent expenditures, or expenditures

from a candidate by their own personal or family resources did in fact violate the First

Amendment (Oyez).
McConnell v. Federal Election Commission. The Bipartisan Campaign Reform Act of

2002 (BCRA) passed by John McCain and Russel Feingold effectively banned the unrestricted

money donated directly to campaigns from corporations, unions or wealthy individuals, also

called soft money. It also restricted the advertising that corporations, unions, and other non-

profit organizations could do preceding the election. The Supreme Court case set out to ask if the

Bipartisan Campaign Reform Acts ban on soft money exceeded the courts authority, and also

ask if regulations on content, timing, etc. on political advertisements violated the First

Amendment. The court answered no to these questions. They decided that the restriction on the

First Amendments free speech was minimal and was justified by the governments interest in

preventing any sort of corruption in elections (Oyez). This case ultimately caused a lot of

restriction and federal mandating. The FEC and this case law made it so a politically motivated

individual couldnt just support a campaign with a check. This made it very difficult for

candidates do any big campaigning.


Citizens United v. Federal Election Commission. This 2008 case regarding a

conservative political action committee is the current standard and precedent for all federal case

law. According to Dunbar, because of the landmark Citizens United Supreme Court Case, there
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was no longer a ban on the electioneering financing on unions and corporations. Big business

interests were given free range to use their money to support a candidate for office without a lot

of oversight from the government, or disclosure, for that matter. On the other hand, it is still

illegal for corporations to donate money directly. Furthermore, because of speechnow.org v. FEC,

another important campaign finance case, any individual, such as a politically motivated

billionaire, can donate to a political action committee or super-PAC which act as backdoor

political parties. The Citizens United case completely put to rest the restrictive provisions set

forth by the Buckley v. Valeo case over 30 years prior (Dunbar, 2016). There is some debate over

whether or not the Supreme Court should make a new precedent over campaign finance law,

putting to rest the days of big money in politics. With Donald Trump as president he may

nominate a Justice that could usher in a new era of campaign finance that has not existed since

the beginning of when campaign finance was regulated (Norden, 2016).


Relevant Laws
Bipartisan Campaign Reform Act (BCRA). The main goal of the Bipartisan Campaign

Reform Act was to end the use of soft money for financing political campaigns. Soft money

being money raised outside the limits and prohibitions of federal campaign finance law. This

act is federal but effects local and state campaign finance as well. One major provision of the

BCRA include prohibiting national political parties, such as the Democrat Party and Republican

Party from raising and spending nonfederal money ("Campaign Finance Law Quick Reference

for Reporters"). According to John Sutton III (personal connection, November 23, 2016), the

BCRA had more impact on the 2016 election than any other campaign finance law. The law re-

defined campaign advertising, raising money for candidates and groups and restricting how

money could be spent for advertising. These include separate limitations on the different groups.

Sutton pointed to the Stand by Your Ad part of the BCRA, the key provision. This part of the
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law required candidates and other political groups to have a candidate show approval of message

content. This in conjunction with the explosion of Super-PACs brought new challenges. The

Supreme Court rulings declared that Super-PACs are not required to adhere to the Stand by your

Ad provision, further increasing the number of voices and messages in the political realm

beyond those of the candidates. The main takeaway from the BCRA is that although corporations

or unions cannot directly contribute to a campaign, they can easily contribute through an

unregulated Super-PAC that supports or goes against a candidate.


Criticisms of Current Legal Doctrine
Due to the nature of the Supreme Court Cases that have set precedent over Campaign

Finance Law in America, there have been many criticisms of the current legal doctrine governing

elections today. The Supreme Court dominates the legislating of campaign finance in the US.

Citizens United v. FEC and Buckley v. Valeo illustrates this. According to Richard Briffault, a

major failure of campaign finance in the US is the legislation of corporation participation in

election financing. Briffault argues that Campaign Finance law contradicts itself so frequently

that to solve this it should be dejudicialized and concrete legislation should be put in place. This

would prevent loopholes that make it easy for campaigns and super-PACs to surpass laws

altogether and raise money to campaign and support a candidate however they pleased.

(Briffault, 2014) In the same vein Spencer Overton argues that current legal doctrine surrounding

campaign finance is too broad and doesnt provide judges with enough guidance. The lack of

rigid doctrine and loose laws causes judges to have greater opportunity to let their own personal

opinions on campaign finance influence the decision on the federal law. The Supreme Court

needs to step in and make things more clear to prevent from more inconsistent court decisions

such as McConnel v. FEC which blur the line of what is and isnt constitutional. There needs to
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be legal norms to provide more guidance to lower courts to decide cases other than the status quo

(Overton, 2004).
Comparing Campaign Finance Laws
Campaign Finance laws commonly differ when comparing a federal law to state law or

one state to another. Overall, differences in campaign finance were most drastic when comparing

one country to another.


Federal and State Law
Campaign finance laws for any state including Virginia can be very complicated and

involve sets of rules encompassing everything from how much money individuals or

organizations can give to how much money candidates can collect and what those candidates

need to disclose or report. According to Ballotpedia, the State of Virginia is unique in that many

sources of funds, including, individuals, single candidate committees, political action

committees, political parties, corporations, and unions can all donate unlimited money to a

candidate for office. Ballotpedia also reports that Super-Pacs are completely prohibited from

contributing to candidates or political parties in an election for state office. The only other

provision being that candidates have to provide detailed campaign finance reports including

information about who contributed money, how much they contributed, and other information

("Campaign Finance Requirements in Virginia," n.d.). This is drastically different from federal

campaign finance law in the US that mandated the opposite of this. On the federal level

candidates were limited on what they could accept and use from corporations and unions, but

Super-Pacs could be and are used by candidates to collect as much money as possible to

purchase advertising to support a candidate because of the citizens united Supreme Court case.

Generally speaking, candidates for office in the state of Virginia would have a much easier time

funding a successful campaign.


Virginia Law and Other States
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As stated above, the campaign finance laws in Virginia are relatively simple. The main

takeaway being that candidates can collect as much money as they please from all sources,

except super-PACs, which they can collect none from. The differences are significant when

comparing Virginia to a state such as California. Ballotpedia document that Californias laws are

much more complex than that of Virginias. For each different contribution source and depending

on the type of election being contributed to. For example, an individual can contribute, at most,

$28,200 to a campaign for governor. A corporation or union can donate up to $7,000 to a

campaign for one of Californias senate seats. One thing that remains unchanged when

comparing Virginia and Californias state campaign finance law is that super-PACs are not

allowed to contribute any money. ("Campaign Finance Requirements in California," n.d.) Each

state has its own unique campaign finance laws that mandate elections for governor, senate, and

other elected state officials.


US Compared to Other Countries
The difference between laws regarding spending money on advertising in Britain are so

strict that upon receiving a million-pound donation (equal to one and a half million US dollars),

the independence party struggled to spend the money according to Stephen Castle, a British

political writer for The New York Times. Castle asserts that the party is unlikely to be able to

spend all of the money before the British Election Day due to strict laws on spending that include

a ban on TV advertisements. In 2012 Obama and Romney combined to spend more than 2 billion

dollars which makes the 1.5 million given to the independence party look very small.

Campaigns in Britain are generally much less expensive and a lot shorter than campaigns in the

US are by a wide margin. The main reason for this is 29.5-million-dollar limit on how much each

party can spend in an election cycle and also because of an outright ban on political advertising

on television and radio. Data on election expenditures in Britain tend to not corroborate the
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belief that more money raised and spent in an election will lead to a success at the ballot box,

whereas money raised and spent in an American election is an absolute necessity (Castle, 2015).

Britains laws show that an English speaking country can conduct their elections in a much

different way than the US.


In an article by Paul Waldman, he explains how campaign finance law systems across

vary so greatly, and shows how unique the US really is relative to its campaign finance laws.

There are a slew of countries that dont limit contributions or spending for campaigns. Among

these countries are Australia, Spain, Germany, and Turkey. In these countries, its important to

note that even though they could spend millions of dollars on campaigning for a seat in a

legislature like the type of thing that would happen in the US, they typically dont. For a number

of reasons, countries that fall into this no-limits category still run very inexpensive, short

campaigns. This is mainly because of a lot of these countries where candidates are outright

banned from airing TV ads until a certain date before the election or each party is given free TV

air time to advocate for their platform. Compare this to the United States where a good portion of

money spent is on 30 second TV advertisements to advocate for or against a candidate. The

article also notes countries where there are limits on both contributions and spending such as

Canada, France, Ireland, and South Korea. As a general rule, these contributions have limits that

are moderately more restrictive then the US. Then there are countries like Austria, Italy, and the

UK, where there are no contributions limits but there are on spending. This explains why in the

previous example; the UK independence party was able to accept a 1-million-pound donation but

wasnt able to spend it as easily. Finally, there are countries like the US where candidates can

spend as much as they please as they campaign but are limited in how much people,

corporations, or other organizations can contribute. According to this article, the only other

country that fits into this category is Finland (Waldman, 2014). It is abundantly clear that
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campaign finance law isnt the same everywhere in the world. Differences in the main campaign

finance doctrines show that two countries could have completely different laws and both have

successful, uncorrupt elections where citizens of a country can vote and the elections winner is

fairly decided. It is hard to tell whether these cheaper, shorter, elections are more devoid of

corruption in these countries in Europe and across the world. Candidates arent likely to

completely bend backwards at the mercy of big checks from corporations in these smaller

European countries because business isnt typically done in these countries. It isnt in the best

interest of businessmen to write a check to a candidate with the intent that the candidate will

deregulate business in the country once he or she gets elected, making it easier for these

businesses to make money. In a big country like the US, Wall Street interests and corporations

often can drive the political climate at the time. These are groups who can directly profit from

deregulation of business that an elected candidate could provide.


Conclusion
In conclusion, it became clear while researching that campaign finance and election law

is an incredibly complex field of law where there are no right or wrong answers, only ideas on

how we can improve on the legal system that is in place today. It is a subject that can easily make

one cynical yet is clear that there are politicians and law professionals present whose interests

truly lie in reducing corruption and keeping money interests away from elections. Campaign

finance is still a very rewarding subject to study and peel back the layers to from an objective

and analytical perspective.


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