Supreme Court Got it Right on Campaign Financing
This writer has been a critic of the 1974 Campaign Finance law since it was passed — and I have expressed my opinion in commentaries several times since.
Restricting contributions to campaigns was a boneheaded idea that never worked to curb the flow of money into campaigns — but has had many unfortunate unintended consequences. The Supreme Court, however, has on key occasions recognized the constitutional defects in these restrictions and has correctly acted to protect core First Amendment rights to political speech and association.
The most significant of these decisions came in Citizens United v. Federal Election Commission (2010). There the Court held, by a 5-4 margin, that the government cannot prohibit corporations, unions, and other associations from making independent expenditures to advocate for or against candidates. The ruling struck down key provisions of the Bipartisan Campaign Reform Act of 2002 that had extended the regulatory regime first imposed after Watergate.
Building on the earlier Buckley v. Valeo (1976) precedent — which invalidated limits on candidate expenditures, including the use of personal funds — the Court affirmed that spending money to express political views constitutes protected speech. The government may not silence voices or ration expression simply because amplification requires resources. These decisions correctly rejected the premise that Congress could engineer a perfectly level political playing field by micromanaging who may speak, how much they may spend, and through what vehicles.
The 1974 law and its subsequent amendments instead produced a system that systematically advantages the super-rich – which explains the proliferation of self-funded candidacies in the past half century. By enabling candidates to spend unlimited amounts of their own money, the regulatory structure — as shaped and limited by the courts — allowed billionaires to immediately outspend less wealthy opponents by wide margins.
That advantage is compounded because billionaire candidates possessed the funds from day one rather than having to assemble them piecemeal from thousands of smaller donors over months or years. They also retained full use of those resources without paying the substantial fundraising fees, commissions, and consultant costs that burden every traditional campaign.
Millionaires and billionaires could — and repeatedly have — deployed sums that no reasonable grassroots or small-donor program could possibly match. As this writer warned decades ago, the 1974 framework produced a steadily growing roster of wealthy self-funded candidates. High-level politics has increasingly become a game played by those who can write seven- or eight-figure checks without blinking. The result is fewer genuine grassroots challengers and more contests decided before most voters have even focused on the race.
The same law created loopholes that generated glaring imbalances between segments of society that could donate or spend more effectively and those that remained tightly restricted. Individual citizens faced low per-candidate caps that limited their direct voice. Organized interests, by contrast, could form Political Action Committees enjoying higher contribution limits and the ability to aggregate support across members or employees. Labor unions possessed structural advantages in mobilizing coordinated member activity that scattered individuals could not replicate under the caps.
Before the 2002 reforms, unlimited “soft money” contributions to political parties for party-building activities allowed wealthy donors and corporations to pour resources into both major parties until public backlash forced a ban — only for the funds to migrate into new vehicles. These imbalances did not eliminate large money; they merely rechanneled it toward those sophisticated enough to navigate the regulatory thicket. Average citizens found their ability to support favored candidates artificially constrained, while well-heeled or well-organized factions retained multiple pathways to substantial influence. The reformers stated goal of reducing the power of money produced instead a system that rewarded regulatory arbitrage.
The restrictions also triggered the proliferation of a confusing and often opaque mix of Political Action Committees, Independent Expenditure Committees (commonly called Super PACs), and what became known as dark money organizations — nonprofit entities that engage in political advocacy without full public disclosure of their donors.
These structures did not emerge in a vacuum. They arose as direct, predictable adaptations to the contribution limits, source bans, and expenditure rules imposed by the 1974 law and later amendments. Rather than cleansing politics of big money, the regulatory regime merely drove it into increasingly complex and less transparent channels.
Voters now confront a bewildering array of funding vehicles, many of which obscure the ultimate sources of support. The complexity serves the interests of compliance lawyers and professional fundraisers far more than it serves ordinary citizens seeking to understand who is trying to influence their votes.
The irrationally and unrealistically low limits on individual contributions — which have grown even more restrictive in real terms as campaign costs exploded with television, digital advertising, data analytics, and staffing — have forced candidates into a state of near-constant fundraising.
In this writers judgment, there should be no limit on individual political contributions. The original caps, only modestly adjusted for inflation over half a century, bear no sensible relationship to the cost of communicating with millions of voters in a modern media environment. Candidates spend endless hours dialing for dollars or attending donor events rather than debating ideas, meeting ordinary citizens, or developing policy. This perpetual money chase heavily favors incumbents with established donor lists and disadvantages challengers and political outsiders.
Eliminating arbitrary caps on what a citizen may voluntarily give to a candidate of his or her choice would restore an element of freedom, reduce the professionalization of fundraising, and allow campaigns to be supported more efficiently by those most committed to the outcome. Meaningful transparency through timely disclosure of significant gifts would still allow the public to evaluate patterns of support.
Finally, the low reporting thresholds for small donations generate enormous lists of contributors that are so lengthy and cumbersome they are never meaningfully examined by average voters. Citizens obtain their understanding of donor patterns almost exclusively from news outlets — and even the media focuses attention on only a small handful of the largest contributors.
Public disclosure of donations remains beneficial, but only large contributions need detailed and prompt reporting — perhaps those of $5,000 or more in an election cycle. Beyond full and timely disclosure of significant gifts, the money should flow freely and voters should decide what weight to assign to particular donations, including their size and source. The current regime of micro-disclosure overwhelms databases and privacy without delivering useful information to the electorate. It substitutes government-mandated volume for genuine transparency.
The Supreme Court got it right when it refused to let the government impose the full menu of speech restrictions dreamed up by left-wing post-Watergate reformers. The 1974 Campaign Finance law and its descendants have not reduced the influence of money in politics. They have entrenched advantages for the super-rich through self-funding, spawned a labyrinth of workarounds that obscure rather than illuminate funding sources, and imposed a fundraising treadmill that distracts candidates from substantive engagement with voters. The proper path forward lies in robust, timely disclosure of major contributions combined with the freedom of individuals, candidates, and groups to support the political speech they believe advances their values. Let the voters weigh the information and render their judgment at the ballot box. Government attempts to ration political expression in the name of equality have repeatedly proven both unconstitutional and counterproductive.
So, there ‘tis.
Larry has got some really strange logic on tis one starting with his basic premise “restricting contributions to campaigns was a boneheaded idea that never worked to curb the flow of money into campaigns — but has had many unfortunate unintended consequences.” In other words, if you can’t stop em, let em as he admits defeat in curbing the flow of money into our elections. The barbarians are at the gate so let them in. I think Biden used the same logic at the border since he could not curb people giving willing workers jobs. Trump should perhaps deploy that logic for his war on drugs since he will never curb the use of drugs. And I hear that papa Larry gave his underage kids free condoms and unlimited pay-per-view porn because it’s a boneheaded idea to ever attempt to curb underage sex with all those unfortunate unintended consequences (kidding). But he favors banning women from control over their own bodies even though it has never worked to curb the flow of abortions and has many unfortunate unintended consequences.
He seemingly has not changed his mind or his logic since 1974. Apparently, to Larry, Citizens United in 2010 is a good thing so why not have more? I mean if it’s broken, break it more, why not break it all the way, any way you can? I would think in 50 years, Larry might have come up with a better, more innovative, more efficient and effective solution than: “WTF, anything goes.” Infrastructure day and the ObamaCare replacement not fixed yet either.
Larry frames the problem well in the simplest of terms4: too much money needed for campaigns. This is the root cause. This problem creates many other problems, the top one is our candidates survive and thrive by money. Candidates spend all their time chasing money. Takes even more time because donation caps are low. Larry feels self-funding allows the uber rich to unfairly compete because they don’t spend as much of their time chasing money. Elections should be about ideas, character, and the American way; not cash.
He then concludes; “Organized interests, by contrast, could form Political Action Committees enjoying higher contribution limits and the ability to aggregate support across members or employees. Labor unions possessed structural advantages in mobilizing coordinated member activity that scattered individuals could not replicate under the caps.” This is the definition of the SCOTUS mistake known as Citizens United. The 5-4 split decision SCOTUS Citizens United was the first death knoll to free and fair elections by allowing THINGS to donate unrestrained to candidates with unlimited funds supposedly to protect free speech as if THINGS needed or deserved free speech protection. These are not citizens; these are inanimate things. Soon we may find that AI will contribute to its candidates, then what? The issue should not be the cap, but should THINGS donate at all? Afterall, they have lobbies, they “persuade” government there with no restriction on free speech. Isn’t that enough?
IMO, the SCOTUS decision that created the Super Pac has done more to destroy democracy than either the left or the right ever has attempted. Legally. Currently, our candidates are mostly up-for-sale by necessity and the PACS and SUPER PACS have the bucks to make the buys. Why do we let “things” buy our government’s leaders? Larry seems to say because we can’t stop them. And now Larry supports the same privilege as a right allowing the top 1% to participate in purchasing politicians without any cap, totally unlimited, too. Stupid on top of dumb. It does not fix the root cause of our problem — too much cash in our elections.
In the real world, here’s how a PAC works; you’re at work, minding the business, when the business pays a worker to take work-time to come to you and say: “hey, you wanna donate to the cause?” Remember, the cost of that worker working those donations ultimately is reflected in the products you buy. The consumer is actually funding the PAC; you can now control the process by what you buy (yeah, right, sure). For the worker, you don’t know what cause, but you know you like working there, this donation is a gold star, not doing it might be a black mark, you don’t know, so you line up and donate right after you sign up for T-bills and Red Cross that they also solicit. And you tell yourself, hey, the raises are still pretty good. IOW, much of the PAC money is one-step from coercion of funds suborned on the unknowing backs of consumers. It’s opaque lobbying on steroids. I do not like to give blindly to causes, but I liked the raises from the corporation so I did. And the T-bills too. Red Cross I already did so I took a chance and passed. And now I have all these T-bills buggering up my finances, my safety deposit box, forcing me into the bank, but at least it’s for a good cause.
Now, the shackles are off the rich and powerful to legally buy our candidates at will. Larry says it’s a good thing because candidates can quit chasing donor dollars from citizens and instead just chase Elon Musk and the like for the big bucks and still have freedom of choice for their decisions: wink, wink, nudge, nudge. Elon won’t even have to run, he can control government covid-style, curb side or home delivery!
I say Citizens United was the first nail in democracy’s coffin and letting the rich have unlimited monetary control will be the second nail. Why should mere mortals even participate in this farce?
This is the stupidest thing in the stupidest process ever devised IF you believe in democracy. Larry’s top problem, too much money needed for campaigns, is never addressed. Larry’s claim that everything tried has failed or he feels somehow unconstitutional, should not mean we put our hands in the air and give up. Nor does having Joe Schmoe unable to compete with Elon Musk in governance persuasion, matter of fact, barely even matter at all is not a solution either. It’s admitting defeat and giving up. I say it’s patriotic to say: “never give up, never surrender,” whether it’s the Churchill or Galaxy Quest version.
In the future, I will address some solutions, there’s a world full of them, to Larry’s actual root cause problem: too much money in politics.
Larry, Dead wrong again (showing your ignorance, but who’s surprised?). There should be substantial limits placed on all campaign funding, so-called super pacs need to be eliminated, we need to return to an era when money did not play a huge role in our elections (I realize that was a very long time ago). Millionaires, billionaires and now trillionaires should not be purchasing candidates for their own benefit. A small dollar limit should be placed on the amount that any individual can contribute to any candidate, with a low annual limit for all contributions and contrary to what the supremes said, businesses are not people and should not be allowed to contribute anything. Not apt to happen, but I suspect election funding as I advocate would receive a lot more support than the ignorance that Larry spouts…
Mike f as in fag how did America haters like you and Dunger celebrate the 4th. Did you eat hotdogs together?
Paul DunGoff: I can’t speak for Mike; I do not know him. But I love America more than you, I am sure. I cooked up a huge steak, added some jumbo shrimp for a fake surf n turf, and then we sat back, watched the fireworks in NYC, Boston and NY on CNN with Cooper. It was brutally hot and the Ninja Flexflame only took ten minutes. Glad I didn’t get the wifi option, this sucker is fast. My spouse marinates the streak, we get a cheaper London broil that she makes as tender as prime rib.
Trump should be proud, it was quite the spectacle. Glad the rain let up, reduced the crowd, but still had the show. Over ten times the NYC, I still liked NY’s better, more creativity. The DC was the biggest ever but it was more like ten-of-the-same at the same time, just more of the same. Was surprised not more focal points. But more works than ever seen. I’ve done DC a few times, it’s pretty brutal in the sun, nowhere to hide, and hard to move. Have a few funny stories from my youth there; one has hookers!
As far as the NYT and Post pooh poohing about air quality, pets, and the like, give me a break. Like you couldn’t see it coming. And the zoo animals, sorry, three miles away and up wind. Plus sheltered by the hill and the buildings so not that bad I would think.
NYC has moved around adding the Brooklyn Bridge and maybe some others this year. Of course, the NYC skyline is best seen from NJ. But with a 95+ degree day, its home and the pool for us.
Thanks for asking and I hope you learn to love America by loving all Americans and not just the ones that look like you.
Good post frank
I should start by saying I may have been a bit exaggerated about the latest SCOTUS retraction of cash restrictions in our politics. While they continue to erode any spending and contributions, the latest ruling is not as corruption supporting as Citizens United.
As I said, this commentary is about solutions. Justice Roberts seems to define corruption as nothing short of outright bribery literally needing a bag man with money and a signed contract. This seems to fit the elimination of contribution limits. The latest SCOTUS decision is not as auspiciously corrupt as Citizens United but tis one more step in the erosion of the guardrails attempting to limit cash in politics. In reading Larry’s piece, I wondered, are we alone in this, how do others compare? Seems a pretty fair question that Larry overlooks as he puts his hands in the air and says: “I can’t stop it so why even try.” In 2016, just for the Presidential, we spent over $3B. All other countries are spending in the millions — is there something wrong here? Can I buy candidates in England, France, and Germany like I can in the good ole US of A?
You gotta love the internet; where else can you find a guy making a movie about how to clean your refrigerator compressor coils? By your specific model? Well, the nerds at the International Institute for Democracy and Electoral Assistance (International IDEA), an inter-governmental agency, track this stuff with a huge database. Turns out everyone fights the problem and the solutions are rare.
International IDEA’s database contains information on 43 variables for 172 countries, and let’s look at limits on contributions to candidates and limits on spending focusing on the 34 member nations of the Organization for Economic Cooperation and Development or OECD, developed nations. First, Mexico and Portugal have all contributions go through parties with individual candidates unable to take contributions. That’s one solution that works better and solidifies their multi-party system – Mexico has eight, Portugal ten.
For the other 32 nations, you have four concepts:
The no-limits: tied for the lead with 12 nations.
The all limits: with 12 nations also.
The nations with limits on spending but not on donations: just a paltry six nations for this solution.
Lastly, there’s us and Finland: only two nations with contribution limits but no spending limits: Our contribution limits are fraught with loopholes called PACS and SuperPacs. Can’t speak to Finland, but we are dumping contribution limits all the time.
Next, I will dive into the detail explain the differences and the stupidity of the USA to stand alone in fostering political corruption with our campaign financing that’s just out of control. And Larry’s wants more.
While it seems we are an outlier as to cash in campaigns, if you go with the majority, the choice is all or none leading one to assume there’s something more going on here. There is, the process is complex.
The no-limit places, where we are heading include: Australia, the Czech Republic, Denmark, Estonia, Germany, Luxembourg, the Netherlands, Norway, Spain, Sweden, Switzerland, and Turkey. Not exactly the group expected.
There are no limits on contributions, and no limits on what candidates can spend. Are politicians being bought? Not exactly. Often, in other places, the system has other methods about the role of money in politics like more and greater interchangeability of members making buying them a bad corruption deal when the hint of corruption means immediate replacement. Or a tradition of stricter party discipline than the USA making interchangeability a reality. One scandal and poof, you are gone. Many of these countries, forbid candidates from TV advertising or give them free TV time. This takes a lot of cash out of the campaign. In many countries, there’s substantial public funding of campaigns, that’s another way of taking citizen donations out of politics. Often, candidates are forbidden from campaigning until a short period before election day. This combination makes it hard to buy candidates even though you legally can. Makes spending a few million a pretty high risk of failure.
The all-limit nations are Belgium, Canada, Chile, France, Greece, Iceland, Ireland, Israel, Japan, South Korea, Poland, Slovenia. Contribution limits are similar to ours: in Canada, you can give $1,100 to a parliamentary candidate; in Greece it’s $3,000 euros, in Iceland it’s a little under $2,500 euros, and so on. There are a couple of outliers: in Japan, you can contribute $14,439 to each candidate. In Israel, a couple of hundred thousand dollars.
Then there’s the nations with limits on spending but not on donations: Austria, Hungary, Italy, New Zealand, Slovakia, the United Kingdom. These places conclude that if you have the former restriction, you don’t really need the latter. There’s no point in writing a big check to buy favor.
And then there’s us: nations with contribution limits but no spending limits: Finland, the United States. And we are dumping contribution limits all the time. In comparison to the world, America votes for the worst of both worlds. Our lack of spending limits means it’s are arms race to the polls; you always need a larger deterrent. The contribution limits mean they have to get that money in $2,600 increments says our candidates have to pound the pavement for pecuniary rewards over and over. As we erode these limits and provide loopholes like the SuperPacs, all they need is convince one billionaire to write you a check for $2.6 million, the equivalent of persuading a thousand ordinarily reach people to give you $2,600, and you have more time to call your adversary a contaminated communist cur bringing rot and ruin to our republic, if you can keep it, but I digest. And all the candidate needs to do in return is listen to the billionaire, is that Robert’s textbook archetype definition of corruption?
As you look over the different regulations various countries have come up with, it does seem that no one has totally solved the problem but in this that we suck more. IF I had to choose, I would focus on spending limits, free tv time but no paid and controlled time limits on electioneering. You can whine about free speech in that, but hard to whine inequality — everyone has the same chance, the same TV time, the same free speech abilities and timing. It seems more “civilized” than the Wild West show we are heading for. I would like to see elections like a one-make championship in auto racing where all drivers have the same platform. Take the money off the field as a variable and the potential for corruption falls.
The government is of the people, by the people, and for the people. It should be a government mandate that forces elections to have a fair and level playing field with fiscal integrity while being a bit more “civilized” by equalizing and curbing spending, contributions, and timing. Never should we hear: “he bought the election” as was said when Thiel bought the loser Vance his Congressional seat. No way he would be in office without Thiel’s millions. As far as a candidate for office, spending should not have the hint of a risk of corruption even if it takes an edict to level the playing field.
In the world of politics, we basically stand alone, and IMO, not in a good way. When Elon Musk himself can give as much as he wants to a SuperPac that Elon Musk himself created, hires talent for, how can that not lead to corruption? I mean do you not really believe there’s a whisper before the SuperPac unleashes millions in support of a candidate? You think this was the founder’s intent. I think the world has shown us that we need, at minimum, spending limits and timing limits IF we see the problem as too much money and corruption in politics. Free speech will take care of itself — we are just adjusting the source, and the duration, for politics only.