President Joe Biden’s decision to drop out of the 2024 race has given the public a rare glimpse into the Byzantine world of campaign finance law.
It’s not a good sight. This tangle of often misunderstood laws underscores the need for judicial fire to protect political speech – “separation of campaign and government.”
After Biden left, his presidential campaign committee and its $92 million war chest were given to Vice President Kamala Harris. Donald Trump’s campaign filed a complaint with the Federal Election Commission (FEC), challenging the validity of the transfer.
Although the situation is unprecedented, two things are certain: The law and regulations are unclear, and the dispute cannot be resolved before the election.
There is audible arguments to both sides of this legal dispute over whether Harris can take over the campaign account. But the crisis caused by the recent candidate’s replacement reflects the broader reality that campaign finance laws are unfair, unnecessary, and often unconstitutional. They burden the right to political speech with campaign contributions and increasingly burdensome disclosure laws.
The Democrats’ current struggle to respond forcefully to these extraordinary circumstances is a taste of a much bigger problem. Campaign finance law begins with the false premise that political speech can be heavily regulated without violating the First Amendment. There are many laws—some still exist challenge in court—intended to protect incumbents and stifle political innovation.
For example, Georgia’s election code allows for “a leadership committee … chaired by the Governor, the Lieutenant Governor, [or] a political party’s candidate for Governor elected in the primary election” to raise and use unlimited money on any campaign, including their own. However, rank and file lawmakers and other general candidates cannot. Federal candidates end their ads with their names and “I accept this message” because of 2002 law which wanted to reduce the number of negative ads against those who worked.
Such laws produce unintended consequences that can distort the very democratic principles they are written to protect.
The abrupt termination of the Biden campaign is just one example of how campaign finance laws can stifle political change and free speech. Similar issues arise with arbitrary restrictions on how many ads a political party can run while aligning the message with their candidates at the top of the ticket. It’s a party measured spending just $32.4 million on such ads, dwarfing the time spent on multi-billion dollar presidential campaigns. The limits are very low for congressional races.
These rules do the most damage at low levels. If you and a friend spend $250 on a few social media ads to encourage others to vote for a state candidate, you have to file a complicated report with the state. If you spend more than $1,000, which is the equivalent of million dollar campaigns, the FEC also requires you to register with the agency. Now you have to report your contributions and expenses on five reports that are due in an election year that make most tax returns seem simple in comparison.
A 2007 study by University of Missouri economics professor Jeffrey D. Milyo asked 255 educated people to fill out financial disclosure forms for California, Colorado, and Missouri. “Nobody filled out the forms correctly,” the study showed.
Perhaps even more surprising, if you contribute even $5 to Harris via ActBlue or Trump via WinRed, your name and home address will appear in the FEC’s online public database forever. But if you send a check for $200 or less, you keep your privacy.
It is hoped that the difficult issues facing Democrats now will prompt a re-examination of the zeal many of them are showing to control money over politics. Now there is an opportunity to consider whether the current system serves the interests of democracy and free speech. Does it promote competitive elections, healthy political parties and strong political debate? Or does it add complexity that benefits policymakers in the context of vigorous political debate?
Increasingly, the answer seems to be the latter.
The legal problems raised by Biden’s impeachment also demonstrate the need for a clear separation between campaigns and government powers. The Constitution maintains the separation of church and state to preserve religious freedom. Courts should recognize the same First Amendment firewall between “campaign and state,” a the first theory given by Brad Smith, free speech expert and former chairman of the FEC. This fire program would protect political speech within campaigns from government interference.
In its 2010 ruling on Citizens United v. FECThe Supreme Court noted, “The First Amendment does not permit laws that compel speakers to retain a campaign finance attorney… But the reality is that campaigns and advocacy groups must hire campaign finance attorneys running a series of rules that few people understand.
Our campaign finance system needs reform — not more and more restrictions, but to wipe out the chaos that threatens to undermine political responsiveness and fundamental free speech rights. The campaign finance uncertainty surrounding Biden’s exit should serve as a wake-up call to all who appreciate a strong democratic discourse and a competitive political system.
#Bidens #exit #exposed #ugly #mess #campaign #finance #law