Revenge of McCain-Feingold
Republicans have been supportive of campaign finance reform laws, for a long time, including federal campaign laws that were used by a New York prosecutor to elevate the charges against Donald Trump.
The title for this Liberty Lyceum essay is somewhat misleading. I apologize. More Americans know what McCain-Feingold is—or at least have heard of it—than the long history of federal and state campaign finance reform laws in the United States.
I put “McCain-Feingold” in the title to grab your attention.
Campaign finance laws—not merely McCain-Feingold—were at the heart of the recent jury conviction of Donald Trump. A more accurate title, therefore, could be: Revenge of Campaign Finance Reform Laws.
The essence of campaign finance laws and regulations should be offensive—even outrageous—to self-governing United States citizens. Imagine those in government commanding how and when and whether you spend your own money, and then demanding detailed reports when you do.
That’s what campaign finance reform laws are all about: Controlling the many in ways that benefit established, incumbent political elites.
Campaign finance reform is no mere antiquated or historical subject. It’s quite relevant to the news of our day.
The reason offenses with which a New York grand jury charged Donald Trump were elevated from misdemeanors to felonies is campaign finance reform, a subject I have been writing about and railing against for 25 years. (The linked op-ed goes back to when I lived in California and the Los Angeles Times had an editor who was interested in more than mere uniform progressive cheerleading disguised as journalism.)
The New York Case
The initial misdemeanor crime with which Mr. Trump was charged is found within the New York Penal Law at § 175.05. It defines the actions that constitute “falsifying business records in the second degree,” which is a class A misdemeanor according to New York law.
The actions include:
Makes or causes a false entry in the business records of an
enterprise; or
Alters, erases, obliterates, deletes, removes or destroys a true
entry in the business records of an enterprise; or
Omits to make a true entry in the business records of an enterprise
in violation of a duty to do so which he knows to be imposed upon him by
law or by the nature of his position; or
Prevents the making of a true entry or causes the omission thereof
in the business records of an enterprise.
The offense, however, can be “stepped up” to a felony if someone falsifies business records with the intention of committing additional crimes.
New York Penal Law at § 175.10 explains: “A person is guilty of falsifying business records in the first degree”—which is a class E felony—“when he commits the crime of falsifying business records in the second degree, and when his intent to defraud includes an intent to commit another crime or to aid or conceal the commission thereof.”
The pivotal question, therefore, determining whether the charges against Mr. Trump were to be misdemeanors or felonies, was: Did Mr. Trump make false entries or omit true entries in the books of his businesses in order to “commit another crime or to aid or conceal the commission thereof?”
According to the grand jury and the Manhattan District Attorney, the answer was: Yes.
That answer points to further questions: What additional crimes was Mr. Trump intending to commit? What additional laws did Mr. Trump intend to violate?
Answer: Trump was committing additional crimes by violating New York State campaign finance laws as well as the Federal Election Campaign Act (FECA) of 1971 and subsequent amendments.
First, he mislabeled payments to Stormy Daniels as legal fees to a lawyer. That’s the misdemeanor offense of “falsifying business records.”
He falsified those records in order to conceal his affair with Ms. Daniels for the purpose of helping his campaign for President. That means the money he spent buying Ms. Daniels’s silence could be viewed as a campaign expenditure. Concealing or mislabeling campaign expenditures violates both New York State campaign finance rules and FECA.
That’s how the misdemeanor offense of “falsifying business records” was stepped up to a felony. That’s how this case came to be about campaign finance reform laws.
With me so far?
Progressives Origins of Campaign Finance Reform
I am not going to discuss here the Manhattan DA in Trump’s criminal case, the judge, the jurors, and the other colorful partisan participants in the whole Trump-New York criminal drama. Plenty of others have much to say about those subjects. I do not.
Rather, I want to address the ridiculousness of campaign finance reform laws.
My opinion of campaign finance reform laws has not changed. I’ve been trying to warn fellow citizens about these laws—encouraging fellow Americans to repeal and abolish them—for most of my adult life. Before the days of digital media, I was publishing essays in numerous newspapers and magazines across the United States on the unconstitutionality and injustice of campaign finance reform laws and associated regulations.
What has changed is that these laws are now being used by an elite political and bureaucratic class who think they should decide the outcomes of elections, not ordinary voting citizens.
Here is an overview of how campaign finance laws came to be and what their purpose is:
Toward the end of the 19th century and into the early 20th century, a movement called “progressivism” emerged in the United States. This movement brought many changes to America, including, later, a relentless cultural attack on the morality rooted in the natural family and the natural obligations associated with parents bringing children into the world.
The main purpose of progressivism, however, was to replace our government of limited, constitutional powers with a modern administrative-bureaucratic state that regulates, controls, and subsidizes virtually all activities.
Following a big surge of progressive government regulations and programs—as government restricts what individuals and business owners may do with their own property while taking wealth from productive Americans and giving it to others—growing numbers of individual citizens and business owners attempt to buy influence from those in government.
Why wouldn’t they?
Through campaign donations or outright bribes, citizens try to buy waivers and exemptions from regulations. They try to direct the attention of regulators at one’s competitors rather than at one’s own business: “Go harass that other business and leave mine alone!”
When your own business isn’t profitable, there are three basic options of what to do next: 1) Try to become more competitive, more efficient, and produce a better product at a lower price in order to stay afloat. 2) Close the doors. 3) Get a government subsidy.
How does one land a government subsidy in the form of a grant or loan? Answer: Give money to targeted politicians and bureaucrats who administer progressive spending programs.
Whether you’re a farmer receiving taxpayer dollars to not farm, or you’re a green energy company receiving government grants and loans because no green energy business has ever proven to be profitable within a free market, or you make electric cars that are so expensive to produce the only way you can survive as a business is to have government subsidize your cars with tax dollars, there’s lots of other people’s money being offered by those in government.
Lots!
Increases in government regulations coupled with government spending programs incentivize Americans to influence their government however they can in order to get more loot for themselves and to ease the tight grip of the regulators. That means Americans spend more money on elections, trying to buy that influence. That means corruption, or the appearance of corruption, or both.
Every major campaign reform law in U.S. history has followed a surge in the growth of progressive regulations and subsidies. The Tillman Act—signed into law by Republican President Teddy Roosevelt—which made it illegal for corporations and national banks to contribute money directly to federal election campaigns—came with the initial progressive movement in the early 1900s.
With the New Deal came the Hatch Act of 1939, which aimed to stop progressive bureaucrats from spending on-the-clock time, while employed by the federal government, helping progressive Democrat politicians get elected and re-elected.
The Hatch Act also tried to mitigate the problem of federal subsidies being used for partisan election purposes, basically paying Republicans and others to vote for Democrats. This was a serious problem during the New Deal of the 1930s and 40s and an important reason why Democrat FDR was elected four times as President.
The most sweeping was the Federal Election Campaign Act (FECA) of 1971, signed into law by Republican President Richard Nixon, and which was amended in 1974 to create the Federal Elections Commission and to restrict how much of their own money Americans can spend and to whom they may give it.
FECA followed the gigantic expansion of government spending programs created during Lyndon Johnson’s so-called Great Society and Richard Nixon’s further expansion of the federal bureaucracy.
In 2001, Republican Senator John McCain introduced his Bipartisan Campaign Finance Reform Act, which was designed as an amendment to FECA. As Republican President George W. Bush signed the McCain-Feingold Bipartisan Campaign Finance Reform Act into law in 2002, he commented that he thought the law was unconstitutional.
Yeah, he actually said that.
FECA, subsequent amendments to FECA, and a New York state campaign finance law turned Donald Trump’s misdemeanor book keeping offenses into felony crimes.
Solving Progressive Problems With More Progressive Problems
Progressive politicians in the United States, now for more than a century, publicly lament the increasingly large amounts of money spent on politics while privately benefitting from all that money.
They say the “system” is bad. They insist money in politics equals corruption, and large amounts of money in politics must mean large amounts of corruption. Big businesses and wealthy Americans are the problem, they say.
Remember, growing numbers of Americans—including large businesses and corporations—are spending growing and enormous amounts of their precious capital on politics, political campaigns, and influencing government policies and practices, rather than investing in research and development, or infrastructure, or distribution, or better sales or marketing efforts.
Why?
Because progressives in government offer so much for sale! They offer waivers and exemptions from regulations. They offer favors from regulators. They offer grants, loans, special tax breaks and tax credits, and various kinds of subsidies, all funded by current or future taxpayers.
For many businesses, it makes more financial sense to spend capital trying to score “free” money from progressive government programs or buy an exemption from onerous progressive regulations than expanding a factory or buying an expensive new machine or hiring more employees.
For anyone who thinks there is too much money in American politics, the answer is obvious: Scale back government spending programs and eliminate regulations.
Those in business cannot buy what those in government cannot sell.
One of the many virtues of a government of constitutionally limited powers is that a constitutionally limited government doesn’t have much to offer for sale to cronies looking for special favors, perks, and subsidies.
While there will always be corruption in any government, a constitutionally limited government will have limited, minimal levels of corruption.
A post-Constitution, postmodern, progressive government that ignores limits on its own power in order to regulate and control the activities of citizens while confiscating the money and property of some in order to subsidize those who are politically-connected, incentivizes corruption on large scales and at all levels.
But that’s not what progressive politicians say.
After creating great incentives for corruption—numerous government spending programs and bureaucratic regulatory agencies—and then discovering unprecedented levels of corruption in the form of money being spent to buy favors from the progressives in government who create great incentives for corruption—the elite political class insist that the problem is you.
That’s right. They say with a straight face that the problem is that too many citizens are spending too much of their own money trying to influence government policies. The only solution they can think of is to regulate and restrict how you spend your own money and to whom you give your own money, including when, why, in what amounts, and in what situations.
With the stroke of a pen accompanied by much chattering about the need to reduce money and corruption—calling it “campaign finance reform”—the progressive political class increases their power and control over you, the citizen, while your liberties and the free use of your property are restricted.
Incumbent Protection Acts
Wrap your mind around that because it is a model of what progressive government is and how it operates: Politicos create big problems, including new high levels of corruption, because they exercise too much power and they control, regulate, and restrict the liberties of ordinary Americans.
They then offer as a solution to the big problems they created yet more government power and control over the liberties and property of ordinary Americans! And they think yammering endlessly about “campaign finance reform” justifies it, and makes it right.
It doesn’t.
All campaign finance reform laws and regulations have one thing in common: They make it more difficult for political outsiders to challenge, effectively, incumbents and others who are part of the political establishment. Every campaign finance reform law is in reality an incumbent protection act.
A sitting President or member of Congress or high-level bureaucrat can call a press conference at any moment and get national and maybe even worldwide media attention. We ordinary citizens cannot.
The only way an ordinary citizen can really challenge some political crony who is part of the established governing class is with significant amounts of money, and campaign finance laws make it incredibly difficult for most ordinary citizens to raise significant amounts of money.
Big donors will pay $25,000 or more for a bad chicken dinner insider a Hyatt Hotel ballroom if the guest of honor is a sitting U.S. Senator. Why? Because that Senator has government favors to sell.
Suppose you, an ordinary citizen, want to challenge that Senator, try to unseat him, try to beat him in an election. Maybe you are smart, even wise. Maybe you are energetic, creative, popular. Yet, what do you have to sell that competes with favors from a federal government that spends trillions of dollars of other people’s money each year?
Probably nothing.
The end results of campaign finance reform laws and regulations are historically-high incumbent re-election rates. Campaign finance reform ensures that virtually everyone in office will stay in office as they want, no matter how corrupt, dishonest, or unintelligent they are.
For most members of Congress today, it is far more likely they will either retire or die in office from old age than lose an election to a political outsider.
More Money In Politics Than Ever Before
It is now common to measure the time politicians stay in office not in years, but in decades. In the case of our current President, he’s been in government office—enriching himself and his family through government largesse and favoritism—for more than half a century.
Campaign finance reform laws and regulations have done nothing—absolutely nothing—to reduce the amounts of money spent in federal or state elections. In just the past twenty years, spending on campaigns has more than tripled and that’s with layers upon layers of federal and state campaign finance laws and regulations!
That is why Donald Trump’s charges were elevated from misdemeanors to felonies: campaign finance reform laws. Now you know. Whether you like Trump or hate him, campaign finance reform laws and regulations should go—not because of Trump, but because those laws are repugnant to the very idea of self-governing citizens.
Repeal all campaign finance laws because they are all violations of the natural liberty and property rights of United States citizens. Period.
If you worry there is too much corrupt, favor-buying money in our politics, please know that I agree with you. I share your worry.
There is too much money in politics. The solution is clear and simple. We need not place further restrictions on the freedom of fellow citizens. We need not command how others spend their own money. We need not demand that some who choose to run for office fill out detailed reports of their expenditures.
We need simply cut back on regulations, the regulators who enforce them, and the sea of subsidies we allow our government to hand out to politically-connected citizens and foreign regimes. When our government has few favors to sell, there will be few looking to buy favors from our government. That is the ultimate and only effective way to get real campaign finance reform.