Analysis of Brennan Center-Democracy 21 Federal Public Financing Plan

The impact of money continues to be felt in the U.S. political system. The principal complaint with “Citizens United” and “Speechnow.org” is that they ‘break’ government by creating an environment where elected individuals are beholden to special interests due to their financial donation power through both individual contributions and Super PACs. This fear is magnified by the polarization of politics in that there are apparently so few individuals who are undecided in a given election, capitalization for advertisement is essential to reach these individuals and attempt to convince them to vote for a given candidate. Therefore, some believe elected officials carry out the agenda of those who can provide sufficient monetary donations to increase the probability that elected officials retain their position largely ignoring the needs or desires of those individuals who cannot donate large sums of money to a re-election campaign.

There are three overall strategies to address the influence of money created by the above court rulings: 1) Remove money from the political system; 2) Neutralize the money by creating other fundraising opportunities; 3) Neutralize the utility of money in campaigns. Unfortunately due to the specifics of “Citizens United”, “Speechnow.org” and an uncooperative Congress removing money from the system does not appear to be a valid option at this time or in the near future. That leaves the option of neutralizing the influence of money. Brennan Center-Democracy 21 believes they have a solution, which attempts to create an augmented fundraising source.1 The idea is an expansion of the presidential financing system, which began in the 1974 Federal Election Campaign Act Amendments initiated by the Watergate scandal, to all Congressional candidates with a greater emphasis on small donations.

Since its establishment the presidential financing system has been regarded as a significant success theoretically opening the election process to numerous candidates from different backgrounds and financial standings, reducing the influence of individuals and groups and acting as a significant barrier to corruption. Unfortunately with the total money spent in elections dramatically increasing the presidential financing system is no longer able to provide an effective monetary substitute as witnessed by presidential candidates like Barrack Obama in 2008 and Barrack Obama and Mitt Romney in 2012 not accepting the matching funds and their restrictions. Also while 64% of eligible Americans voted in the 2008 Presidential election less than 0.5% were responsible for a vast majority of the funds that were donated by individual contributors.1 Therefore, the Brennan Center-Democracy 21 plan intends to increase the ability to fund federal candidates, not only presidential candidates, by augmenting funding through small denomination monetary donors.1 The crux of the plan breaks down as followed:

1) Individual state residents will have contributions of up to $250 matched with government funds on a 5 to 1 ratio. Basically if a voter donates $250 the federal government will add $1,250 to that donation for a total $1,500 donation;

2) The program is optional and candidates participating in this new program will only be allowed to accept a maximum of $1,250 from a single individual instead of the existing limit of $2,500. However, because of the multiplier a $1,250 donation in the program will equal a $2,500 donation to a candidate not participating in the program;

3) There is a cap on the amount of funds that government will provide. The suggested cap is $2 million for a House candidate and $10 million for a Senate candidate. However, while there is a cap for the amount of funds that will be matched by government there are no expenditure or total fundraising limits for participating candidates;

4) A donor floor must be achieved before the government funds are distributed. The purpose of this floor is to limit the number of uncompetitive or marginal/fringe candidates. The suggested floor is defined for House candidates as $40,000 from at least 400 donors and for Senate candidates as $40,000 from at least 400 donors multiplied by the number congressional districts in the given state. Note that only the $250 or lower donations from in-state residents count towards this dollar floor;

5) National Party committees can coordinate unlimited cash infusions to support a candidate, but these funds must be drawn from a donor pool that operates under the same rules as individual donations to the particular candidate (the pool the money is drawn from cannot have any individual donations that exceed $1,250). Also the candidate would only be able to contribute a maximum of $50,000 dollars to the campaign from personal assets;

6) Federal Election Commission (FEC) reform to ensure a non-partisan board of referees that can effectively administrate, regulate and enforce adherence to the rules of this program through disclosure and penalties;

7) Create an effective and reliable funding stream through legislation that guarantees solvency and sufficiently fast delivery of the funds;

One design of this idea is to increase the impact of small contributions in effort to make their significance more relevant in a large donor environment. This new significance will increase the incentive for individuals that are only able to give small amounts to donate with less of a mindset that such a donation is meaningless. This theoretical advantage has been demonstrated somewhat empirically by a similar program in New York City where in 2009 city electoral candidates participating in the program raised approximately 63 percent of their donated funds from individuals that contributed less than $250 and most contributors in the 2009 elections were first-time donors where more than 80 percent gave $175 or less.2,3 Unfortunately the overall influence of this effect is difficult to determine statistically because of various other controlling factors and a small sample size from which to draw from over the last decade.

Another theoretical advantage to this small donor enhancement is that due to the volume requirements and advantages, candidates would be more likely to engage with numerous potential voters in their district/state instead of simply ‘wine-and-dine’ a small number of large contributors. There is some anecdotal evidence to support this idea in that some New York City candidates stated that the multiplier New York pays out for small contributors gives them an incentive to actually pay attention to their constituents over simply focusing their attention on wealthy donors through fundraisers, which may attract more diverse individuals to not only donate money, but participate in the political process.2 However, the significance of these interactions is still in question. For example a candidate can just continue to send fundraising emails requesting campaign donations and highlighting the benefits of donating $250 or less. How many people made small value donations to the Obama campaign in 2008 without actually ever going to a face-to-face town hall Q&A hosted by Obama, webchat or some other interactive event? How does this strategy change in a multiplier environment?

The authors of this proposal fail to mention the full public finance systems with much larger track records in Maine and Arizona (Clean Election Systems).1 While the design of the public financing was different, candidates would forgo the ability to privately raise funds to receive a set amount of matching funds relative to what was raised by their opponent plus an additional flat sum, the lessons learned do hold some merit. The design of this system was to increase electoral competition, increase voter choice, attempt to limit increasing campaign costs, reduce interest group influence and increase voter participation.

Unfortunately the public financing systems in both Arizona and Maine did not successfully achieve any of these goals as judged by the Government Accounting Office (GAO).4 Of the five goals the only noticeable change occurred in electoral competition, but that change was not deemed large enough to be statistically significant due to other factors. Insiders also reported that the political parties gamed the system in multiple ways. Fortunately due to the differences in the multiplier system and the matching system (used in Arizona and Maine), it is unlikely that similar gaming strategies can be used in the multiplier system. However, another problem is that the public did not know about this gaming and yet the percentages of races with viable third-party/independent candidates did not increase over time, voting-age citizens did not view public funding as an effective counter to special interest group influence and voting-age citizens did not demonstrate an increase in confidence in government.

Proposal proponents would argue that the ‘Clean Election’ system failed to live up to its hope largely because of the cap placed on the participating candidates. These caps allowed non-participants the ability to outspend their participating opponents. The addition of matching funds, designed to augment any significant imbalance in funding were added later through monetary triggers and alleviated the limitations of the initial flat sum cap, but this trigger-based matching fund structure was later judged unconstitutional by the U.S. Supreme Court in Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett. Based on the long-term outcomes of Arizona and Maine it can be said that the goals of the Brennan Center-Democracy 21 proposal are not easily captured.

Overall there appear to be a number of concerns with the proposal. One immediate concern is the government caps at $2 million and $10 million for House and Senate candidates respectively. While having caps is theoretically appropriate because there must be some limit lest overall government costs for the program could result in unsustainable values, these caps may be inappropriate in efficiency relative to the multiplier. It only takes 1,600 individuals donating the maximum matching value of $250 to reach the House cap and 8,000 individuals to reach the Senate cap multiplied by the number of districts. Unfortunately the districts multiplier is somewhat irrelevant because the proportional population district determining formula tends to lessen the significance of the cap over increasing it. With such a small number of required donors it stands to reason that a vast majority of individuals participating in the program will attain these caps.

Assume that due to gerrymandering and other unscrupulous political behavior along with an increase in political demographical homogeneity only about 130 or so House seats are actually vulnerable with about 33 Senate seats available during each election cycle. With the average House seat winner spending $1.4 million and Senate winner spending $9.8 million in 2010, it is not unreasonable to assume that at least 95% of the House and Senate candidates will enter the program and attain the cap due to the small amount of donations that are actually required. If this is the case then the federal government will be responsible for paying out an additional $1.124 billion dollars in matching funds each election cycle.

Note that this value also assumes only a single Democrat and a single Republican in a general election; no costs are included for what is matched during primaries, there is no inclusion of third party candidates or the idea that previous ‘runaway’ House races would be meaninglessly contested solely on ego because of the available funds. It is reasonable to expect these elements to drive the costs even higher to at least double the above estimate. The authors suggest an estimate of $700 million per year for this program, but that suggestion seems rather small based on the above assumptions.

Based on these cost concerns there are three questions that need to be asked: 1) how is the government going to raise the necessary amount of money? 2) Will the public view this expenditure as a valuable service to society? 3) If the caps can be attained by interacting with so few individuals (0.056% to 0.07% of state populations for almost all Senate candidates) is the system really that useful in accomplishing its ‘interaction/small donors mean something’ goal?

A previous analysis has determined that there are numerous potential strategies for raising a large amount of funds that could be designated for the presidential funding system or an enhanced public funding system like or similar to the proposed one.5 However, a problem with most of those strategies is that they are either some entirely new tax or some form of tax increase typically on businesses. Any attempt in this political environment to pass a new tax will face serious opposition. The tax credit or redirection of funds will probably be limited in usefulness because the current Presidential Matching system is struggling to maintain funding, which is drawn from simple redirection of tax revenue over actually creating more revenue, and this proposal dwarfs that matching system in expected required funds. Also with revenues lower than proportional historical averages, partially due to the Bush tax cuts, it is difficult to view the utility of revenue redirection.

One suggestion that should garner significant support is increasing fines for speeding and other traffic violations at the state level, but it may be difficult to get the states to ‘transfer’ those funds to a federally run system when they are having such financial problems themselves and those additional funds will not amount to much (assuming about $1 million in additional revenue per state only nets $50 million).5 One possibility may be to divert funds from the widely discussed ‘stock trade’ tax to such a program. This strategy may be easier to accomplish versus some of the other suggested taxes because it is a volume based tax with a one to two cent cap per interaction, thus individuals will not view it as ‘back-breaking’ or ‘blatantly unfair’ like most other taxes. Ironically Wall Street will actually be funding a program to enhance competition in federal elections. Another possibility may be to change the system where the government multiplier is only three times instead of five times, thus candidates have to interact with more people to meet the cap, but the overall caps could also be slightly increased in value as well to compensate for the reduced multiplier. Overall whether one wants to regard it as a logistical problem or a political problem, funding this system is a significant problem.

Another concern is the floor monetary caps for participation. The idea of the floor caps is to ensure that fringe candidates do not run on a whim and waste government money. A wise idea, but it appears to be executed improperly with this absolute monetary value. It stands to reason even the most fringe House candidates could find 400 residences in a given district to donate $100 to their campaigns and reaching the Senate requirement would probably be even easier, especially in a more populous and diverse state like California. Overall it would probably be better to change the floor from a hard $40,000 to a percentage. For example 2% of the district population would need to give between $100 and $250 to a given House candidate and 2% of the state population would need to give between $100 and $250 to a given Senate candidate for qualification. If one of the goals is to ‘filter’ out non-competitive candidates then such a requirement is more than appropriate because one cannot have a reasonable expectation of winning unless at least 2% of the voting population is willing to donate at least $100 to the campaign.

Another issue to study is the concept of the ‘repayment of funds’ at the end of the election. The proposal suggests that candidates who have a surplus of funds remaining after an election would be required to return those funds to the government equal to the amount they received through the program or return the entire surplus if received funds were greater than the surplus. The candidate could then use any remaining funds in that surplus after repayment in a future election cycle. There is no information pertaining to whether or not the candidate can transfer those funds to the national party coffers or to another candidate even if he/she elects not to run in a future election cycle. It seems reasonable to suggest that if the candidate does not elect to run in a future election the remaining funds can be donated.

The concern with this system is the point of running in an election is to win and if funds have to be repaid if they exist afterwards it stands to reason that very few candidates will retain any funds instead using that money to purchase last second advertisement on television, radio, Internet and in print publications, unless the race is a runaway. Unfortunately most of the races that are runaways are generally predicted as such long before the election date, thus most runaway winners will not participate in this system and their opponents will spend all their raised money if done so under the system. Overall this issue really is not a problem, but one should not expect much of a return of distributed funds, thus when estimating costs a return rate of less than 1% would be appropriate.

The final major issue is the argument the authors make in reference to donating money leading to an increase in political participation. Basically encouraging participation by small donors will not only increase the probability of neutralizing large donor contributions, but will also increase the probability that these individuals volunteer for given candidates increasing the level of social and political capital between candidates and their constituents, especially on a diversity level. While true, such a desire needs to be tempered with caution. Realistically this increased participation is only genuinely valuable if it leads a person who would not have otherwise voted to vote and if that individual votes he or she does so as an informed voter. If the individual is not an informed voter then it is better they don’t vote. Even if they do vote there is still two lingering problems.

First, the overall idea of the Brennan Center-Democracy 21 proposal is the neutralization of special interest money by countering it with volume funds from numerous small value donors. A problem is that this system has no ‘mind’. The authors oppose the money in the system now because most of it is attached to special interests, which they believe corrupt the system, a rational belief. However, their system does not really address that influence, it only adds more money to the pool. There is no focused mind to this issue because special interests have a single principal issue to promote, all of these multiple donations have numerous voices on given issues, which can drowned each other out.

Some could argue that these donation groups have similar viewpoints, but unless they formalize themselves, they don’t. Numerous people identify themselves as Democrats or Republicans, but they have different views on various subjects despite this party affiliation. This lack of focus is a significant hindrance to this strategy because candidates can still do what the special interests want within their platform because the money from the small donors lacks that potentially counteracting ability due to a lack of clear focus.

The second problem is that while the idea is that augmented small donor money will increase voter excitement because of the greater role any single individual can play, how will this excitement be maintained if nothing changes? One of the biggest problems with this system, and modern politics in general, is that it does not effectively address the issue of the ‘forsaken voter’. One of the complaints of blacks and environmentalists is that the Democratic Party does not respect their opinions because the Democratic leadership believes that these groups have nowhere else to go if they want to exercise their right to vote; they can’t vote for a Republican because that would be self-defeating, if they are real Democrats, and they can’t vote for a Green party member or other third party member because of the infinitesimal probability that the person would actually win.

There is little reason to believe that this proposal will change the probability that a third party candidate is elected because of the ‘wasted vote’ philosophy that burdens third party alternatives along with party loyalties. Adding a medium amount of additional money to the coffers of an alternative party candidate will do little because these parties are already established, thus a lack of publicity is not a crippling problem restricting their ability to get party members elected. Unfortunately without creating another alternative third option for disheartened Republican and Democrat voters their elected officials can continue to ignore their desires and continue to pander to special interests.

With the idea of removing dependence on large donors by augmenting small donors giving an elected candidate the financial firepower to win elections without feeling beholden to anyone, there is an important philosophical point to this issue in that the authors seem to have one of two beliefs. First, that at their core most politicians are moral individuals that are ‘corrupted’ by the rich and other large value donors. Increasing the ability of small donors to fund their campaigns removes them from this corrupting influence. However, this philosophy seems flawed because these individuals feel beholden to these large corporations in the first place. If these individuals were moral they would ‘fight’ for their personal beliefs even if they conflicted with the beliefs of the high value donors. If these actions matched with the beliefs of the electorate then they would be re-elected because the opponents, no matter how much advertising they could buy could not sell a story that would convince the electorate not to vote for this first individual. Unfortunately this does not appear to be the case for a number of politicians.

Second, that there are moral candidates that simply cannot get elected because immoral incumbents use money to saturate the electorate and preserve their election; unfortunately the monetary issue is not the central problem in such a situation; if the challenger is from one of the two major parties (Dem or Rep) then money is not an issue and if it is an independent/third party candidate then voter psychology is far more damaging than lack of money. Therefore, within this philosophy money does not appear to be the principal problem, but similar to the forsaken voter issue, the problem is getting voters to dictate candidate characteristics not the other way around if money is acting as a corrupting influence in that particular region.

The side issue is the matter of voter disapproval of Congress. Most people do not genuinely disapprove of Congress because of the influx of money and the perception of bribery. The disapproval of Congress comes from conflict and intractability; basically Congress is viewed negatively because they are viewed as not doing anything due to in-fighting. Ironically voters want their elected officials to do something, even if it is the wrong thing, more than for them to do nothing. If Congress were doing something, regardless of what that something was, then it would have a significantly higher approval rating.

Overall money is clearly a negative influence in politics and while the attempt to expand the New York City multiplier program to a federal level is admirable there are some important questions that the initial proposal left unanswered. The issue of both the total general cost of the system and how this money will be collected are still unknown and what is estimated does not instill much confidence that it will be affordable relative to what will be delivered. Also the minimum floor to qualify for the system appears better suited as a percentage of the population over a fixed donor number and value in order to more effectively eliminate candidates that have no genuine opportunity for victory and would otherwise waste federal multiplier funds. However, the biggest problem for this program is the lack of viable victory choices (i.e. forsaken voter) and the lack of focus. Unless these two problems are addressed either directly or indirectly there appears very little probability that this program will create significant change in the political system.

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Citations:

1. Skaggs, A, and Wertheimer, F. “Empowering Small Donors in Federal Elections.” Brennan Center for Justice and Democracy 21. 2012.

2. Genn, E, et Al. “Donor Diversity Through Public Matching Funds.” Brennan Center for Justice and Democracy 21. 2012.

3. Malbin, M, Brusoe, P, and Glavin, B. “Small Donors, Big Democracy: New York City’s Matching Funds as a Model for the Nation and States.” Election Law Journal. 2012. 11(1):3-20.

4. Campaign Finance Reform: Experiences of Two States That Offered Full Public Funding for Political Candidates. Government Accountability Office. May 2010. GAO-10-390.

5. Public Financing of Elections: Where to Get the Money. Center for Governmental Studies. 2003. http://www.policyarchive.org/handle/10207/bitstreams/232.pdf

Revisiting Campaign Finance Reform

The original question in Citizens United v. Federal Election Commission revolved around whether or not the FEC could use the McCain-Feingold Act (a.k.a. Bipartisan Campaign Reform Act) to prevent groups from distributing political advertisements within 30 or 60 days from a specific type of election. However, while this narrow element was the original nature of the case, the majority in the case expanded the breadth of the ruling to justify whether or not money expenditure in an election could be considered an extension of free speech and if corporations could use it for the direct purpose of supporting the election or defeat of a given candidate.

The somewhat sad reasoning in Citizens is that Justice Kennedy in the majority opinion seems to suggest that there is no way to distinguish between media (who was not restricted the McCain-Feingold Act) and other non-media corporation, even though governments and its agencies had been doing just that for years leading up to this case. The real question stemming from Citizens is what is the obligation of the United States to the Constitution when the consequences to possibility not upholding an aspect of it could be disastrous?

One of the chief problems with Citizens is the rationality that money is a form of speech and the First Amendment should protect its use. The underlying problem in the application of such a belief is that there is no inherent limit to the distribution of money. In this regard society tiers the importance of an individual’s speech by how much money he/she has. This scenario creates an unequal weight on speech that is not inherent to the accuracy of the speech. The point of the First Amendment was to ensure all speech because all speech was viewed as equal based on the premise of equal weight within reason. The tiered environment created by money destroys the assumed ‘equal weight’ environment, which ‘housed’ the First Amendment. The court in First Nat. Bank of Boston v. Bellotti did not properly appreciate this understanding.

Now one could argue that the ‘influence’ of newspapers and other print media, which received an exception before Citizens, also destroyed this environment. Such an argument is not correct. Newspapers offered the option of readers commenting on inaccuracies or perceived impartialities through the ‘letters to the editor’ section reducing the argument weight relative to the opinion produced by the paper. This option is not available for print insert, television or radio advertisements, the principle mediums of action by those who ‘demonstrate their speech’ with money.

Based on the entry costs associated with these mediums there is little to no opportunity for the average citizen to counter inaccurate information given by these ‘speechmakers’. In addition these ‘speechmakers’ can repetitively engage in this speech tapping into a very large audience. This lack of correction as a means to control weight is important because most of these advertisements are ripe with inaccurate and/or misleading information because to those producing them the point is not to win an election fairly, honestly and/or morally, the point is to win by any means necessary.

Another problem is that individuals and media outlets have an inherent ceiling to the influence they can exhibit in a political environment. Basically the maximum weight of their argument is reasonably capped. Individuals engage in direct speech (i.e. soapbox) are clearly limited by time and resources so their message(s) rarely carry lasting influence. Newspapers only produce one paper per day, which heavily restricts the content that it can devote to attacking/praising a given candidate(s) or the total influence it has as numerous papers would have to devote large percentages of space to a given candidate to generate lasting influence.

Television stations have a greater theoretical ceiling having the ability to disseminate content all 24 hours in a day, but face a ‘feasibility’ ceiling in that devoting too much aired content to attacking/praising a given candidate(s) will drive away undecided and ‘independent’ viewers allowing the station in question to only retain individuals devoted to loving/hating that given candidate/policy in a pre-conceived way. The tiered structure of ‘money speech’ has a much larger ceiling as advertisements of support/ridicule can appear in many different mediums generating huge levels of exposure (dwarfing those of newspapers and single television stations) with a much lower probability of turning off individuals who the advertisements are meant to influence.

Therefore, these advantages make ‘money speech’ much more valuable than ‘conventional speech’ and the more money one has the more ‘money speech’ one can make. Some try to make the argument that many people can ‘pool’ their money into collective organizations which would represent their interests with more ‘money speech’ than these individuals could muster on their own. Unfortunately due to the incredible imbalance in the current economic system the only organizations of this nature that could compete with corporate interests acting as a potential counterbalance are worker unions.

However, individuals who oppose the existence of these unions, because they do not agree with their political positions, are continuously attacking these institutions in various states in effort to destroy them. The systematic attempt to eliminate these established ‘common man’ money pools and the inability of other pools to generate equalizing amounts of money to compete with corporate interests heavily damages the validity of the pooled money argument. It is reasonable to suggest that the largest corporations will always have dramatically more ‘money speech’ than common citizens or smaller companies.

Those who argue that the point of Citizens was to liberate the ‘money speech’ for small businesses are either naïve or purposely misleading their audience. Available ‘money speech’ for small businesses only matters if that business agrees with the position of a larger business and if this is the case then there is little point for the small business to contribute because of vast percentage of the ‘speech’ on that given topic will be made by the larger business because it has more to gain or lose from influencing policy. If the smaller business disagrees with the larger business in a matter of policy there is no reasonable expectation that the smaller business will be able to utilize the ‘advantage’ of its ‘money speech’ to defeat the opinion of the larger business. In fact lack of viable restrictions on ‘money speech’ actually weakens the power of the speech for the small business relative to large business regardless of which business is actually right.

Interestingly the characterization of money as speech changes an intangible element to a tangible one, which actually strengthens the argument for regulating this type of speech. The original point of Citizens (from the petitioner’s viewpoint) argument was that it was not fair that their organization was restricted from releasing a political advertisement based on a specific time deadline, a deadline which did not apply to media organizations. The argument was that this deadline was a complete restriction of their organization’s ‘speech’. One could see the potential validity of their argument in that their ‘speech’ was being restricted in its entirety by the deadline. However, while the First Amendment disallows a government entity (federal, state or local) the ability to restrict an individual from speaking at all (outside of very specific situations), it does not restrict that same government entity from applying restrictions to certain types of speech.

A similar vein can be seen within the Second Amendment in that even if one argues that the rights of private citizens not in a government sponsored militia to bear arms are supported by the Second Amendment, an argument that is nearly impossible to make logically, government can still restrict the types of arms one can own legally. For example just because the Second Amendment states one can bear arms does not mean that the government has to allow an individual the right to own a nuclear bomb. Thus the right to bear arms is not universally protected in all forms. The same logic can be applied to the First Amendment in the form of ‘money speech’. Based on that precedent the government could place a ceiling on how much money a ‘person’ could spend in a given election cycle (just not donate to a given candidate, but actually spend be it independently or through some subsidiary).

One could argue that such ceilings were addressed in Buckley v. Valeo, but the reasoning in Buckley is incredibly naïve when addressing the ceilings relative to the improbability of corruption: “[the] absence of pre-arrangement and coordination…alleviates the danger that expenditures will be given as a quid pro quo for improper commitments from the candidate.” Perhaps one could hold on to such illusions in 1976 when the Buckley ruling was made, but with changes in technology as well as existing anecdotal evidence over the last 30 years it is extremely difficult to view such a reasoning as valid in 2009 (when Citizens was ruled) or 2011.

Another interesting association between the First Amendment and money can also generate allowable government restriction. The spirit of the First Amendment was designed to protect differing opinions, but not opinions that were deterministically false, there is a reason libel and slander laws exist. Normally deterministically false statements are of little consequence because of the small scale in which they occur; however, within each election cycle based on what is at stake due to how the decisions legislators make influence the well-being of the general public the importance of deterministically false speech in the election environment, regardless of intent, is significantly magnified. Therefore, it should be the prerogative of a government agency to penalize and restrict individuals or groups making clearly false, ambiguous or misleading ‘money speech’ in an election environment within proper jurisdictions.

Some want to argue that these types of restrictions are not necessary largely because voters are intelligent actors and money invested in election cycles only has a muted influence on which candidate a voter votes for. This reasoning seems to fall short of viability on two points. First, if such a statement were accurate then why are hundreds of millions of dollars spent in each major Federal election cycle; clearly the individuals/groups spending this money have conducted numerous studies to identify the best and most efficient means to spend the money as ‘speech’. Therefore, it is difficult to accept the reasoning that all of this money and time would be spent on an endeavor that had little to no influence.

Second, the belief that general voters intelligently analyze candidate platforms and logically determine whether those platforms are valid and will be effective at solving problems is naïve. Most voters do not either have the time, the experience or the desire to undertake such a task, especially because of the general lack of specificity offered by candidates on their platform (most simply give general stock answers to questions or flat out lie). Thus, without this in-depth analysis most voters rely on media outlets and advertisements to ‘inform’ them regarding political platforms and opinions. Overall ‘money speech’ clearly plays a significant role in politics with regards to influencing voting trends and habits and to argue otherwise is simply foolish.

When considering the manner of speech itself a distinction must be drawn regarding subjectivity. There are two types of elected official: legislative and judicial (note that this categorization is different from branches of government of which there are three). These two categories are divided by the roles they play in crafting the law. The legislative category is responsible for creating, debating and passing/failing perspective legislation (the President is also a part of this category) where the judicial category is responsible for determining whether two separate laws contradict and how to resolve that contradiction and address criminal sentencing.

Between these two categories the legislative one has a much greater level of subjectivity relative to how to solve a given problem. The purpose of passing new laws is to solve a problem in society, yet due to imperfect knowledge and boundary conditions the analysis ability to determine whether or not a given solution is successful is not purely determinate. An extremely simple example of this process is determining a solution for x + y = 7. In this situation there are numerous solutions to the problem regardless of methodology.

However, the general openness of the legislative category does not exist for the judicial category. Determining if a given piece of legislation is constitutional, in conflict with another piece of legislation or if a defendant is guilty, etc. are much more restrictive due to existing logic and boundary conditions. For example for this category instead of x + y = 7 the problem is x + y = 7 where x > 3 and y is positive. Basically the level of subjectivity is much smaller and there are fewer viable possibilities for x and y.

The general point of speech in the election of an individual who will take a legislative role, regardless of type, is to demonstrate support for a particular idea or group of ideas that embodies the candidate. It can be argued that another rationality is to exhibit support for certain personal characteristics of the candidate, which could allow him/her to better work with other legislators to come to a deal. This situation is different for a judicial election because the limited options eliminate the second rationality for speech support. Judges do not negotiate with other judges in a quid-pro-quo manner similar to politicians. The first opinion is also significantly hindered by the limited number of correct options due to sentencing guidelines, logic and legal precedent. Therefore, speech in support or opposition against judicial candidates can only effectively be given as a measure of how effective a judge is at upholding the law on an analytical basis.

Unfortunately most of the ‘money speech’ in judicial elections is based around fear and bias largely driven by an attempt to seat like-minded individuals regardless of whether or not the legal opinions of the candidate in question are correct. This lack of respect for the legal system is troubling and actually could allow for the restriction of support/detraction speech in judicial elections due to Brandenburg v. Ohio.

Brandenburg v. Ohio largely addressed the issue of ‘clear and present danger’ exception to the First Amendment, which was first validated in Schenck v. United States. Originally the ‘clear and present danger’ exception was clarified under the ‘bad tendency’ test in Whitney v. California where if the speech has a tendency to cause sedition or lawlessness it could be constitutionally prohibited. However, Brandenburg created a new standard for the exception through a three-pronged test, which limited its application restricting government ability to restrict speech. The three elements that make up the test are intent, imminence and likelihood. When individuals devote ‘money speech’ to the defeat of a sitting judge who has not demonstrate malfeasance it can be argued that such ‘speech’ is meets the three elements of the Brandenburg test.

Arguing that a judge that has a reputation for ruling correctly legally and logically should be replaced in an election demonstrates intent in that supporters of the challenger believe that the challenger will rule differently than the sitting judge. However, if the sitting judge has ruled correctly then these supporters are supporting a candidate who will rule incorrectly, a candidate that intends to break the law by improperly evaluating it. Likelihood occurs because judges do not summarily rule on the constitutionality of an issue randomly and spontaneously, typically a petitioner must bring a suit, which challenges the standing of a given law. Therefore, if an individual is bringing a suit and is successful it stands to reason that the likelihood of that individual acting upon that new ruling is very high.

The only questionable element is imminence, but similar to likelihood it stands to reason that if an individual is bringing a suit against a particular law that if it is overturned that petitioner will act upon the law as soon as possible (a near immediate effect). Therefore, it appears possible that the government would be authorized to disallow ‘money speech’ in an election against a standing incumbent judge who has not demonstrated malfeasance.

Note that ‘money speech’ would be targeted in the above example over general speech because of the breadth of contact. The ‘danger’ in a judicial election is an individual taking the bench who will make judgments that are incorrect solely due to personal or professional motivations. Only ‘money speech’ has the ability to influence enough people to elect the judicial candidate who will be inappropriate for the job. There is little reason to suspect that general speech will be able to create a sufficient level of influence. Also note that the ability of the government to restrict ‘money speech’ only applies to judicial elections with an incumbent as there is not existing record to judge for two competing non-incumbents.

One exception that could be discussed regarding an incumbent re-election is past action within the sentencing range. While the judicial rulings on guilt and constitutionality are rather firm, the most subjective aspect of a judge’s role is sentencing. Some individuals may disagree with a judge who assigns penalties on the higher edge of the guidelines (5 years instead of 3 years for a 3-5 guideline crime) or visa-versa. In these situations if ‘money speech’ can demonstrate specific instances of such behavior through explicit citations then it would be difficult to eliminate ‘money speech’ made in opposition of that premise on the basis of the Brandenburg test.

One may try to argue that ‘money speech’ should never be restricted in elections based on the sole element of personal opinion regarding likeability. Basically ‘money speech’ could be used simply to exclaim to the public that candidate A is a ‘good guy’ and individual or organization A likes him. The problem with this mindset is that it is very unlikely that an individual or organization would spend thousands to tens of thousands of dollars in ‘money speech’ driven only by a personal like for the given candidate, there will be an ulterior motive.

Overall while the rationality in that completely restricting the ability of an individual or organization to participate in the political process through purchasing advertisement may seem logical, the First Amendment also does not guarantee unlimited speech in an environment when all individuals do not have the same opportunity for speech. Therefore, this realization logically, and more than likely legally, gives the government the ability to place a ceiling on the total ability of individuals to ‘speak’ in these types of environments. For example the government could set a ceiling on the amount of money that a given individual or corporation could spend in an election cycle to 20,000 dollars. Also based on the general differences between those who make the law and those who enforce punishment and interpret the law monetary speech restrictions in judicial elections could be even more strict, possibly even disallowed. While some believe that the ruling in Citizens significantly curtailed the government’s ability to restrict corporate money in political activities, any interpretation that the government is unable to apply monetary caps to corporations or individuals for political activities is unethical and logically wrong.