[EL] Yang's money offer

Fri Sep 13 06:20:30 PDT 2019

I carry no brief for Andrew Yang or his campaign: my check, I suppose, is in the mail. And, as always, the views below are my own and no one else’s. However, I see the debate over his “cash giveaway” as reflecting a casuistry that is creeping back into the informed debate over campaign finance. By this way of thinking, a transaction “seems wrong,” could plausibly be restricted by a simple textual reading of the statute, and hence *should* be restricted. This strain has been there all along in the history of FECA’s enforcement, but I think we are seeing the beginning of its resurgence, in part as a reaction to the sharp, post-2008 deregulation of the field, and in part because of the growing democratization of the election law field.

Still, it remains true that one must interpret statutes like 52 U.S.C. 30114’s personal use ban in light of their structure, history and intended purpose, and also against the backdrop of the First Amendment principles that limit and inform campaign finance regulation. The purpose of the personal use ban is to avoid corruption or its appearance. Its origins lie in the Congressional ethics rules. The Senate Ethics Committee put it fairly well when it recommended censure of Senator Thomas Dodd in 1967: he had used “the influence and power of his office ... to obtain, and use for his personal benefit, funds from the public through political testimonials and a political campaign.” While not then formally proscribed, his conduct was found “‘contrary to accepted morals . . . [and] the public trust expected of a Senator, and tend[ed] to bring the Senate into dishonor and disrepute.’’

In the Dodd case, in the prohibitions later formally adopted by the House and Senate, and in the 1979 FECA amendments that extended those prohibitions to non-incumbent candidates, the anti-corruption purpose of the personal use ban was clear. The ban was, and remains, intended to avoid corruption or its appearance, by preventing current and future officeholders from seeking funds that could be used for an entirely unattenuated personal benefit. Seen one way, a private contribution to a candidate’s campaign presents *some* risk of corruption, encouraging a current or future officeholder to make decisions other than on the merits. Converting contributions to personal use takes the risk to an entirely different level, by providing the officeholder or future officeholder with a much greater level of personal benefit.

It’s hard to see how that anti-corruption interest supporting the personal use ban is implicated when neither the future officeholder, nor anyone he or she particularly cares about like a family member or a staffer, has anything themselves to gain from the payments. The FEC has recognized this through advisory opinions, including one very audacious one – never superseded, and still on the books – where a candidate sought and obtained permission to use campaign funds to set up a trust for a child he met on the trail. The lack of personal benefit to the candidate was decisive to the Commission’s granting of the request, which makes sense when one considers the statute’s anti-corruption purpose: https://www.fec.gov/files/legal/aos/1986-39/1986-39.pdf.

Also, the personal use restriction operates against the background of a strong, oft-repeated principle of federal campaign finance law, which is that candidates normally have broad discretion over the spending of their funds. The FEC has said this repeatedly in its advisory opinions, and said so explicitly so when it explained the personal use rules in 1995. Unspoken here are the First Amendment principles that limit government restraints on campaign spending: under what circumstances may the state, outside the context of voluntary restrictions a candidate may take on through the public financing system, say to a campaign that it can’t spend its funds in a particular way? Again, I carry no brief for the Yang campaign, but it seems to me that a complaint against someone like him might have some boomerang potential for those who seek to further the cause of reform. The respondent might very well argue that he is a long-shot candidate, that his proposal represents a plain attempt to “throw the long ball” and get attention from the voters that he otherwise wouldn’t get (certainly Yang succeeded at that last night, at least on Election Law Twitter), and that government enforcement in that case would implicate Buckley’s principles on the regulation of expenditures.

Thus, I think the discussion of the “cash giveaway” merits some careful reflection: on this particular question, on other personal use-related issues like the charges leveled at so-called “Zombie campagns,” and on the future trajectory of FECA’s interpretation and enforcement.

=B.
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From: Law-election <law-election-bounces at department-lists.uci.edu> On Behalf Of Lori A Ringhand
Sent: Friday, September 13, 2019 7:41 AM
To: Paul Ryan <PRyan at commoncause.org>
Cc: Election Law Listserv <law-election at uci.edu>
Subject: Re: [EL] Yang's money offer

I think the NYT is missing a big part of this story: the personal data the Yang campaign is getting from every single person who bites on this and registers with the webpage. Yang’s campaign is very social media driven, and I suspect this give away will be followed by a huge surge in highly personalized, largely under the radar, micro-targeted online advertising.

On Sep 12, 2019, at 8:56 PM, Paul Ryan <PRyan at commoncause.org<mailto:PRyan at commoncause.org>> wrote:
[External Sender]
Solid analysis, I think, from the New York Times: https://nyti.ms/2LOrgiT<https://urldefense.proofpoint.com/v2/url?u=https-3A__nyti.ms_2LOrgiT&d=DwMGaQ&c=XRWvQHnpdBDRh-yzrHjqLpXuHNC_9nanQc6pPG_SpT0&r=liAVgWK_6sjbUg6EC0f0khf6MyboEmFwaqEV2P3ukag&m=h6-ZFK9T74dViolAT0FxLTuKDgDXdrZ6a5Ec3ZjbQHo&s=OdgLtKSNmmsKhR0gtqBQtWKC_Vy9y-flgw_mXyBFvu0&e=>

Paul Seamus Ryan
Vice President, Policy & Litigation
Common Cause
(202) 262-7315

On Sep 12, 2019, at 8:13 PM, "larrylevine at earthlink.net<mailto:larrylevine at earthlink.net>" <larrylevine at earthlink.net<mailto:larrylevine at earthlink.net>> wrote:
How close does Yang’s offer of $1,000 a month for a year for 10 people who reply to his campaign twitter account come to violating federal law?
Larry
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