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Campaign Finance

5 min read

Part of Elections and politics.

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Every episode (3)

Who argued it

Jeff Kosseff · Frank Buckley · Mike Munger

First Amendment · Section 230 · Executive Power · Federalism · Regulatory Capture · Public Choice Theory

Background

Campaign finance is treated across these episodes less as a corruption problem than as a question about speech and about who writes the rules. Bob Zadek frames the subject by asserting that campaign finance laws are written by officeholders and that those officeholders would stack the deck against challengers; he asks whether that is an overstatement or a fair summary of the world. Who Wants to Buy a Politician? With Mike Munger (2015)

The incumbency thesis

Mike Munger, described as a Duke University economist with a PhD from Washington University who ran for Governor of North Carolina in 2008 as a Libertarian and worked as a staff economist at the Federal Trade Commission, calls Zadek’s framing accurate, but with a qualification: he says politicians do not think of these laws as self-interested, they think of them as public interest, and that this is more dangerous than simple self-dealing because it comes with moral indignation. Who Wants to Buy a Politician? With Mike Munger (2015)

Munger rejects the premise that there is too much money in United States politics. He says other democracies such as Israel and Japan spend far more, that the reason money matters is that voters are less than fully informed, and that the only way an adversarial system works is if a well-articulated alternative can be presented to an incumbent who already holds a platform and a bully pulpit. He notes that more is spent on advertising yogurt and toothpaste than on all elections in the entire United States combined in an election year. His conclusion is that incumbents find competition inconvenient. Who Wants to Buy a Politician? With Mike Munger (2015)

The First Amendment framing

Matt Welch, identified as editor-in-chief of Reason Magazine, calls the biggest assault on the First Amendment in the country over the prior ten years campaign finance reform, saying it restricted political speech, and adds that the restrictions have been pared back to the point where one no longer needs federal government approval to run an advertisement criticizing a local congressman. He situates this as bipartisan rather than the property of one party. A Libertarian Plan (2010)

In the same episode, a caller identified as Forest, running as the Republican Party candidate against Pete Stark in Congressional District 13, argues that the left reads the Constitution’s general-welfare language as licensing whatever legislation serves an agenda, and that it can take decades before such readings reach the Supreme Court. Zadek distinguishes Forest’s example — the honest services fraud provision of Title 18, which Forest says was recently tossed in the Skilling case — from the campaign finance discussion, and Welch supplies the campaign finance point. A Libertarian Plan (2010)

Disclosure as the surviving regulation

Jeff Kosseff traces anonymous speech doctrine: cases from 1960 into the ’90s and early 2000s in which courts struck down requirements that authors of pamphlets put their names on them, with the historical right traced to Thomas Paine and the Federalist Papers. He says Justice Thomas, an originalist, would have gone further, reasoning from what the press was like when the Bill of Rights was adopted, while the late Justice Scalia, also an originalist, strongly disagreed. The United States of Anonymous (2022)

Kosseff then marks the limit: the protection is not absolute, and the exception has primarily been in the campaign finance and elections context. There the Supreme Court has upheld disclosure of the names of people who spent money on campaigns or political ads, and even of people who signed ballot referenda, usually over Justice Thomas’s dissent and usually his alone, on the reasoning that there is a strong public interest in informing the electorate about who is funding campaigns. Zadek calls the distinction indefensible hypocrisy, arguing that anonymous pamphleteering and anonymous financial support of the political process are the same thing, and that the problem is with the politician who allows himself to be influenced rather than the giver. The United States of Anonymous (2022)

Across episodes

The topic recurs in the 2010, 2015, 2019, 2022 and 2023 episodes. The treatment shifts in emphasis rather than in argument: the 2010 episode treats campaign finance reform as a First Amendment assault, the 2015 episode recasts the issue as an incumbency-protection and information problem in Munger’s economic terms, and the 2022 episode narrows to disclosure and anonymity, where Kosseff sets out where courts have permitted regulation and Zadek disputes the line. The 2019 and 2023 excerpts add only that campaign finance is among the issues the Court intervenes on and among the institutional barriers facing third parties.

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