Campaign Finance Laws

Note: This is a series of three posts on campaign finance laws, my thoughts on the matter evolve through the debate.

Repeal Campaign Finance Laws

How do I like my crow? This thought has been rolling around in my mind for some time now. You see, I was one of those people who vociferously advocated Campaign Finance Reform. If I had been running this blog in 2002, I would have posted a Theory entry arguing for how important it was to restrict the influence political donations were having on our political system.

Then I would post this article as a retraction to my former stance.

I apologize to all of my conservative friends, who warned that such a legal web would grow to encompass talk shows and movies. I blew this off as a Big Brother conspiracy theory. I have now seen enough attempts by both sides of the aisle to shut down these forms of media to know this is a very real threat.

I apologize to all of my liberal friends, who warned that the laws would restrict grassroots assemblies. I blew this off as ridiculous. How could the government prevent people from organizing? The legal battles working their way through the courts over 527 independent political committees are exactly this fear manifested.

I apologize to everyone on both sides of the aisles, who correctly pointed out that there was no conceivable way such restrictions could be implemented fairly. I apologize to all of you who tried to illustrate the way these laws would favor the party with the power to refine them through legislature and legal battles, just like the voting districts of our electoral college. I see now that this is an incredible and unmanageable mess we have created for ourselves, and it will only get worse in time.

So how do I like my crow? Apparently lukewarm, because I realized the error in my schema concerning this issue a long time ago, but have only now gotten up the nerve to correct myself. Although, I have only recently fully understood the error in my logic.

I failed to take into account the complexity of our Political Arena. I was sold on the ideal of Campaign Finance Reform, the romanticism of a bipartisan effort led by McCain and Feingold. I allowed myself to simplify the issue to Congress taking money from special interests. Campaign Finance hasn’t changed that. Politicians still vote according to their donors wishes and, in fact, campaign finance laws have even given an edge to special interest groups.

On the surface, Campaign Finance Laws are entirely about money. They are meant to restrict the amount of money a candidate can receive from various sources and spend through different means. This seems fair at first, until we look at the conundrum of “Soft” money, which includes money Special Interest groups don’t contribute directly to a Campaign, but spend on advertising for that Campaign.

Organizations that advertise against a candidate, such as MoveOn.org or the Swift Boat Veterans for Truth, are arguably advertising for the candidate’s opponent with the contributions they receive. Similarly, a talk show host, such as Rush Limbaugh or Al Franken, who’s shows have political objectives, are advertising for their candidates as well with the advertising income they receive. Each of these are a loophole in the system, where unofficial campaign contributions come in the form of donations or advertising dollars. These are forms of speech that are under threat.

How is it fair to prevent citizens from putting their monies together to run ads intended to advocate their beliefs? How is it fair to restrict the content of Rush Limbaugh’s radio show or prevent advertising the release of a Michael Moore film in the months leading up to an election? How do we objectively assess when all of these sources of speech are crossing the lines of Campaign Finance reform? Or will it be like pornography, when Justice Stewart, in response to the Supreme Court’s inability to define obscenity, famously said, “I know it when I see it.”

How do we implement a subjectively defined fairness doctrine across all forms of speech simultaneously? What happens if the grassroots organizations get more attention in the courts than the pundit talk shows or vice versa? How is it fair to unbalance the playing field, even temporarily? The gears of democracy grind slowly, but in politics even a week is an eternity.

We have legitimized a debate over what forms of speech are allowable in our democracy. 527’s are not going to be the last loophole in this debate. People will find other ways to be heard. We can’t take pundit radio shows off the air, so are we going to establish independent monitors, like the FCC, to evaluate what they say? The slippery-slope arguments posed before the ratification of Campaign Finance Laws are becoming realized. How will the Courts handle the incredibly sticky case of Sinclair Broadcasting’s decision to air an anti-Kerry documentary right before the election and defending it as news coverage?

We have entered a disputational quagmire where we are all fighting for the ideal of fair debate, but it cannot be won and it’s time to cut our losses. Unfetter the market of ideas again, let the grassroots assemble their populist powers, let the corporatists wield their media monopolies. It is not ideal, nor fair, but it is better than legislating the freedom of speech. We are already finding we cannot trust those prosecuting or defending the cases being brought before our courts.

Let’s remember the principle that people will find a way. It doesn’t just apply to people exploiting methods that Campaign Finance laws overlooked, but to people exploiting all methods of everything in debate. Earlier I pondered how the courts would handle Sinclair Broadcasting’s airing of an anti-Kerry documentary, but this situation will never have its day in court. Grass Roots organizations across the country contacted the companies that advertise on Sinclair’s channels and threatened to boycott them. The advertisers pressured Sinclair and the company agreed to re-produce the documentary more even-handedly, even allowing John Kerry a rebuttal. No one owns a monopoly on being heard.

The people will find a way.

A Few Inaccuracies and Misrepresentations

I posted an article titled “Repeal Campaign Finance Laws.”
Matthew McKinzie at CaffeineZombie posted a counterpoint titled “It’s Hard Work.”
Chris Mitchell at OneMansRage posted a counterpoint to both of the above articles titled “We Don’t Need Campaign Finance, We Need Equal Time.”

Both McKinzie’s and Mitchell’s posts are full of excellent observations on the issues surrounding our public political discourse, and I must acknowledge upfront that they have each moved me along the scale concerning this disputation. Today I will begin with my criticisms of their posts and next I will explore the alternatives to Campaign Finance Reform they propose.

Both authors misrepresent the controversy over Sinclair Broadcasting’s documentary of John Kerry’s Vietnam service. McKinzie correctly notes that Sinclair did air four minutes of the documentary, but leaves out the important qualification, “as part of a larger news program.” By leaving out the fact that Sinclair was successfully pressured into airing a much more balanced show, McKinzie focuses purely on the four minutes of content he disagrees with, skewing his readers’ perceptions of the broadcast as a completely unbalanced anti-Kerry smear.

Mitchell incorrectly states that Campaign Finance laws prevented Sinclair from airing the “Stolen Honor” documentary:

Sinclair can’t run the anti-Kerry documentary within 90 days of the election, but Al Franken can call Bush a fascist up to that morning.

In fact the FCC Chairman Michael Powell stated his group would not intervene with Sinclair’s broadcast. Sinclair was pressured by its advertisers and investors, who were pressured by massive boycotts mobilized by grassroots and 527 groups. Sinclair was well within its legal rights to air the documentary.

“Borderline idiotic” and “equally stupidly” are pejoratives Mitchell flings out in the middle of an otherwise thoughtful essay, and the integrity of his post suffers greatly from the single paragraph where he uses them.* (These are not to be confused with the friendly, tongue-in-cheek jabs both McKinzie and Mitchell throw at yours truly early in their essays. As anyone who has met me will attest, I am indeed both a “dumbass” and a “wussy foo-foo.”)

McKinzie believes that I was using a slippery-slope argument when I stated that commentators like Rush Limbaugh and Al Franken were threatened by Campaign Finance, stating, “no one is suggesting that Al Franken or Rush Limbaugh be shut down”; however, I did post this source as an example. The 527 group Citizens United attempted just this very thing with not only the advertising of Michael Moore’s film, but the entire release of it as well. Instead of addressing this very clear-cut example, McKinzie preferred to ignore it.

McKinzie unfairly oversimplifies my arguments, stating that I believe “campaign finance laws are unenforceable, because big-money donors will inevitably find ways to manipulate them to their advantage and because campaign finance laws restrict free speech.” If only this were so simple a conundrum. My argument involves the nebulous meaning of “Soft Money,” which is dependent entirely on how money is used in communication with people. Early attempts to control excessive soft money influence in campaigns restricted ads that used language specifically endorsing a candidate. In response, the soft money moved to issue ads, which did not outright endorse a candidate, but endorsed their platform or attacked their opponent.

Now soft money is being applied in a myriad of ways that skirt the presently defined restrictions. The Sinclair anti-Kerry documentary and Michael Moores “Fahrenheit 9/11” are only the most well-known examples of the fuzzy line between legitimate news and what is meant to be a persuasive media piece. There are many easy ways around the soft money ban, like buying a television station, making a documentary film, purchase a celebrity like Rush Limbaugh or Al Franken and use their command of the media to advocate a cause, or simply pour all your money into internet advertising. We may separate spending from speech, but only to a degree, as these examples clearly demonstrate, money and speech are definitely intertwined, making this a free speech issue in many cases.

*NOTE: Mitchell has stated in the comments section of his blog that the two pejoratives were actually poking fun rather than being employed seriously.

How Do We Provide Balance?

Both McKinzie and Mitchell offer their own solutions for providing equal message time to political campaigns. McKinzie suggests returning to a poll tax as a means of regulating campaign financing. Mitchell suggests a stricter enforcement of the Equal Time laws.

The Poll Tax

A poll tax would ensure that all Candidates get equal money to run their campaigns. I currently support a variant of this system. When I file my taxes, I always check “Yes” for the “Do you want $3 of your federal tax to go to the Presidential Election Campaign Fund?” question as a means of supporting third party candidates who are usually the only ones to accept this money. It doesn’t cost me anything and I recommend anyone who isn’t a Democrat or Republican to support this option.

The problem with a poll tax, beyond, as McKinzie points out, its past abuses to prevent African Americans from voting, is the fair implementation of such a system. If candidates were forced to turn to the government as their sole source of funding, then political strategies would shift to the laws governing who qualifies as a political candidate. The two parties have engineered things to make it difficult for Candidates not Republican or Democrat to get on the ballot in most states.

Another tactic would be opposing parties working to get the candidates of other parties on the ballot to dilute the voters among candidates with similar platforms. We then have a serious dilemma. Which I hope I can explain:

Party A and Party B are the forerunners in an election. Party C is a third party with a platform identical to Party B, so Party A makes a successful drive to get Party C on the ballot. Party B and C now have equal funding thanks to the government, and although Party B has more supporters, Party C has equal advertising power and their competition will split the vote. Party A has now successfully used Party C’s campaign finances to improve its own chances of winning the election.

A very similar tactic was used by Republicans to get Ralph Nader on the ballot in the 2004 election. In a system where all candidates have equal funding provided by the government, this would have been a disaster for the Democrats’ campaign, as Ralph Nader would have equal means to get his message out. Under the current system, a campaign’s finances do somewhat correlate to their national support; although, we may legitimately debate whether this is a cause-effect relationship and which cause manifests which effect. : )

Equal Time

Equal Time is another possible solution to concerns over fairness in Political Campaigns. There have been many attempts to institute such policies throughout American history; however, each attempt has run into difficulties. There does not appear to be any way to fairly implement an equal time clause.

The equal opportunity provision of the Communications Act requires radio and television stations to provide airtime to each candidate equally. If a television station gives one minute of airtime to Candidate A, then they must also provide Candidate B with one minute of airtime. The same thing goes for selling airtime, where each Candidate must be allowed to purchase equal amounts of time on any one station.

Congress amended the provision in 1959 to exclude news coverage. Incumbent Candidates invariably required more airtime to cover stories concerning Government operations; therefore, it was unfeasible to give a challenger equal airtime when the news was covering current events. It was also unfair to spend an incumbent Candidate’s airtime on news stories potentially unrelated to their campaign, when they may rather spend it addressing voters directly. The playing field became unbalanced as incumbent candidates use their news-making ability to wage what are now known as “Perpetual Campaigns.”

The Fairness Doctrine prevented television and radio stations from airing one opinion all of the time unchallenged. It was established in 1949 and was a political standard until 1987, when the FCC abolished it. Ronald Regan vetoed a Congressional attempt to make the doctrine federal law, and George Bush vetoed a second attempt in 1989. An attempt to revive the Fairness Doctrine in 1993 was squashed by a grassroots effort led by talk radio host Rush Limbaugh. The Republican Congress has made no effort to revive the doctrine in the last ten years. (For a comprehensive history of this issue, click here.)

Once the fairness doctrine was abandoned, it became possible for overtly partisan commentators to come on the air. Before this, challengers could use the doctrine to force the radio station that carried pro-Republican talk show host Rush Limbaugh to follow his show with a pro-Democrat commentator. The modern day success of all-conservative and all-liberal radio stations is used as evidence that the Fairness Doctrine was detrimental to free enterprise.

At this point the cat is out of the bag. Democrats and Republicans each have their own 24-hour platform on the radio. The market supports this situation and the emergence of digital broadcasting has provided an environment where we have unlimited broadcasting capability. Unlike the limitations of public airwaves, everyone will eventually be able to get on digital cable.

The biggest problem with equal time is deciding how far to take it. What qualifies a candidate to appear on the air in response to their opponent getting airtime? A third party candidate should, in all fairness, get to stand with the two-parties, but this could conceivably allow fringe candidates on the air as well. While I would love to see a challenger from the Communist or Libertarian parties get the opportunity to spar ideologically with the Democrat and Republican, this level of equal time could turn media coverage into chaos.

Soft Money

Unfortunately, neither McKinzie’s or Mitchell’s solutions do anything to address the issue under dispute, which is Soft Money. A poll tax would do absolutely nothing to prevent soft money expenditures from unbalancing the political playing field. Equal Time would only give candidate VS candidate equal coverage, but not prevent incumbent “Perpetual Campaigns” or address soft money spending flooding the media.

The “money is not speech” argument fails where soft money is concerned. Web hosting, newspaper printing, book publishing, television programming, and movie producing all cost money. Money and speech are intertwined, for without money, we are all reduced to screaming at the top of our lungs on street corners.

The problem with the “It’s their money argument” is one of extent. How far do we take this principle? Should we allow a modern-day William Randolf Hearst to buy all of the news sources for a single community and restrict the content of those sources to only the truth the owner approves of? While we cannot regulate speech, we can regulate money when it infringes on others. Monopolies can prevent another citizen from speaking in the public forum, and that is where government regulation becomes justified.

So what’s the solution? I have no answer to this because I have no definitive criteria for what constitutes a soft money abuse, and that’s the problem no one has a solution to. This issue, if we continue this route, will require a permanent disputation in our political discourse to define its ideal mean — and maybe that’s not a bad thing.

So my critics have won a victory on this issue. Mitchell and McKinzie’s competing views have made me realize that we cannot wholly abandon the issue of soft money and we must not overplay it either. Their challenges have convinced me to stand back and continue allowing the disputation to continue. There are certainly people far more knowledgeable than I am on the subject.

I could easily be completely wrong about the people’s ability to properly regulate soft money. I have not read the hundreds of pages of legalese that comprises the Bipartisan Campaign Reform Act of 2002, and have relied on a wide variety of pro and con commentaries to understand its implications. Barring the Supreme Court ruling it a violation of the first amendment or a legislative action to overturn it, we will have the opportunity to see how this disputation plays out in American politics.

In the meantime, I’ll move my “Repeal Campaign Finance” article from the “Theories” section to the “Disputations,” and help myself to another serving of yummy yummy crow.