Study: The First Amendment is a loophole

The Associated Press published a story today detailing a study released by the Center for Governmental Studies (CGS), a Los Angeles-based organization that advocates for taxpayer financed campaigns and other campaign finance regulations.

The study purports to show that, “[p]oliticians across the country keep finding ways to skirt campaign-finance laws, using ballot-measure committees and other avenues to raise millions of dollars in unregulated contributions,” according to the AP lede [newspaper speak for the first sentence/paragraph].

HoltzmanVogel’s blog post on the story pointed out the obvious: “These ‘loopholes’ are sometimes referred to as legal means of raising and spending funds for the purpose of engaging in constitutionally-protected political activity.”

AP doesn’t bother quoting anyone skeptical about whether politicians are exploiting “loopholes.” It only quotes two aides of politicians who CGS criticizes responding to the report by saying their bosses complied with the law. AP also doesn’t bother addressing the dog-bites-man aspect of a group that supports campaign finance regulation releasing a study implying that routine, legal political activity is some sort of nefarious loophole. When CCP releases a study, for example, media organizations citing the data usually mention that CCP opposes strict campaign finance regulations because it’s obviously relevant.

In the CGS press release announcing the study, for instance, it explicitly states that the study was designed to build support for a “proposed model law” that would broadly expand campaign finance regulation:

The proposed model law, the “Political Contributions, Payments and Expenditures Transparency Act,” would consider all money raised by officeholders and candidates from any donor and through any entity, including campaign and non-campaign entities, to be raised for a political purpose, subject to contribution limits (with two exceptions), aggregation and full disclosure.

In particular, CGS wants the law to lower disclosure thresholds to $100 so more small donors can be harassed for contributing to disfavored candidates or causes, limit politically-related travel and require disclosure of the sources of funding for “political communications,” (whatever that means — presumably things like ads for ballot measures and independent expenditures).

Some of those ideas are just plain wrong from an effective public policy standpoint and others, like limiting candidate travel and regulating independent communications, have clear constitutional problems.

What’s interesting, though, is that even if one accepts the premise in the study — that campaign finance laws allow politicians to exploit “loopholes” like contribution limits — a reasonable person would conclude that more campaign finance legislation written by incumbent politicians would make campaign finance laws more byzantine and empower insider politicians with top-flight campaign finance lawyers over average citizen-activists.

Illinois’ recently-passed contributions limits law, for example, allows legislative leaders virtual free reign while restricing the political speech rights of independent groups and individuals.

The First Amendment is not a loophole, and politicians pushing campaign finance fixes to manufactured problems should remember that.


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The Center for Competitive Politics is now the Institute for Free Speech.