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  • Writer's pictureMario Nicolais

Campaign compliance season kicks off in an absurd system

Traditional political lore holds Labor Day as the beginning of election season. That probably comes as a shock to anyone following the presidential race this year. In the era of perpetual campaigns, there is no longer a beginning or end, but rather phases cycling through dialing for dollars and speaking on the stump.

But in the world of campaign finance laws, Labor Day still means something. It means the 60-day electioneering communication window is opening. And this exemplifies the ridiculous nature of our current system.

“Electioneering communication” is a legal term of art that mandates reporting for only some political communications. In Colorado, that means any communication broadcasted by television or radio, printed in a newspaper or on a billboard, directly mailed or delivered by hand to personal residences or otherwise distributed. It must also unambiguously refer to a candidate. And must be broadcasted, printed, mailed, delivered, or distributed within thirty days before a primary election or sixty days before a general election. Furthermore, it must be done to an audience that includes members of the electorate for such public office the candidate is seeking.

And then there are all the exceptions to the rule.

Given that “electioneering communications” only represent one category of many political communications, it is easy to see why U.S. Supreme Court Justice Anthony Kennedy decried, “The First Amendment does not permit laws that force speakers to retain a campaign finance attorney, conduct demographic marketing research, or seek declaratory rulings before discussing the most salient political issues of our day.”

While I made a career helping political speakers navigate these laws — apparently to the chagrin of Justice Kennedy — I have always marveled at the utter absurdity of the system. The system is so broken that half the legislative or regulatory “fixes” only serve to exacerbate the problems.

For example, advocates hoping to “get money out of politics” helped institute multiple changes over the past few decades. First, they moved to impose limits on the amount any person could give directly to a candidate. Once implemented, though, the law only served to drive the same money to political parties. As a consequence, candidates lost control of their independence and message. They became reliant on a party structure. Seeing this outcome, advocates of change then worked toward limiting contributions to parties. But as a good friend of mine on the other side of the aisle has always said, “there are no ‘Stop’ signs for money in politics; only rights and lefts.” Barred from candidates and now from political parties, money flowed to outside groups. These are the 527 and 501(c)(4) organizations now so decried. Their rise is a direct consequence of the movement to get money out of politics. The result? Exponentially more money is spent every election cycle.

Of course, the casualties of this futile movement are twofold: first, the independence of candidates, and, consequently, lawmakers, and second, the voting public. Because money, and the speech it buys, now coalesces in groups twice removed from the actual candidate, the candidates must parrot the message disseminated by those groups in order to benefit. Consequently, candidates lose their own voices. The effect trickles down to voters by leaving only the candidates most skilled in message regurgitation rather than policy analysis and principled advocacy.

To change the system, I believe it would be best to take a step back and admit mistakes already made. Allowing more contributions to flow directly to candidates could curb the influence of outside organizations and allow a rebirth in candidates’ independence. Of course, that might lead to new rules itself. And who knows what unintended consequences those might have!

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