Campaign Finance Rhetoric Is Not Reality

by Steve Klein

In the 2018-19 legislative interim, the Joint Corporations, Elections and Political Subdivisions committee is addressing campaign finance law. This is the first time the committee has taken up the topic since, well, last year, after a comprehensive bill on the topic—House Bill 67—died without a vote in the House during the 2018 Budget Session. The rhetoric is again overblown, and WyLiberty's efforts will continue to focus on keeping election law grounded in reality.

WyLiberty's mantra: let campaigns campaign, and keep it as easy as possible for citizens to participate in politics.

Campaign finance law is, by itself, rather boring, and more akin to accounting. In short, campaigns and certain organizations (political committees, or "PACs") must keep track of all the contributions they receive and how this money is spent. Reports must be submitted at certain times for public disclosure. In Wyoming, the reports are posted at www.wycampaignfinance.gov, a platform known as the Wyoming Campaign Finance Information System, or WYCFIS.

The law is more difficult when it comes to complying with the restrictions placed on campaign money. For example, Wyoming bans businesses (or just about any "profit or nonprofit entity") from contributing to candidates. Campaign finance rhetoric makes this out to be a curb on the influence of big industry, but the ban includes even a mom-and-pop company. So, a small business that wants to contribute funds or make an in-kind contribution (like free printing services) is prohibited. Instinctively, candidates and campaigns will happily take help, so they sometimes overlook this and other prohibitions. Fortunately, in Wyoming making a mistake like this would probably result in a phone call from the Secretary of State's office and the campaign returning the contribution. In other states, where laws have "teeth" (a must for campaign finance reformers), fines and even criminal charges are the default.

Campaign finance can be a stressful addition to campaigns, especially for, ironically, grassroots candidates without a lot of money. Moreover, established politicos and incumbents can use the law to their advantage: House Bill 67 actually originated from this kind of gamesmanship, following complaints from the Wyoming Republican Party against certain Democratic candidates and a consulting firm in the 2016 cycle. The complaints were, in large part, without merit. Rather than cleansing politics, campaign finance laws can be a dirty political tool for those who know how to work the law and the media.

The press is often all too happy to oblige. The skepticism journalists display toward politicians (and just about anything else) is set aside when scrutinizing campaign finance policy. Kerry Drake exemplifies this in a recent WyoFile column. Not only did House Bill 67 fail but, per Drake (and the Equality State Policy Center), it wouldn't have gone far enough:

Here's Wyoming's loophole: all candidates for state and local office must file a pre-election report that details all campaign contributions above $25. The report covers the period up to 14 days before an election and must be filed by 10 days before election day. That leaves a 4-day window between 'closing the books' and the filing deadline, during which donations received will remain effectively invisible until after the election is decided.

Drake continues: "You'd be amazed at what percentage of donations happen to arrive in that window. There's no excuse for allowing such secrecy."

Drake's complaint is not that these contributions are not disclosed, but simply when. Nevertheless, in Wyoming all campaign contributions above $25 are disclosed. Thus, Drake could have made his argument with supporting data, but he didn't. That's probably because his outrage falls apart with just a dose of reality. For example, Governor Mead received $9,750 in out-of-state PAC money in 2014 that was not disclosed until after the election. One could try to make a talking point with this, so long as he does not disclose Mead's total haul was $689,497.83. That is, this $9,750 was slightly more than 1% of Mead's contributions. Amazing? Hardly.

By not using campaign finance data to support his argument, Drake implicitly acknowledges he won't put the time in. What does that mean for average voters who don't have a column to write? Wyoming is supposed to have more reporting so that "voters can determine for themselves if and how money may be influencing a candidate[,]" yet very few people seem to be doing that. More explicitly, Drake asserts this disclosure would be a boon for "enterprising reporters" who can "comb the data and report anything that raises eyebrows." But that raises a distinct slew of problems, such outright bias and selective context, as illustrated above.

This is not to say that there is no place for campaign finance disclosure, but especially if self-styled reformers want a more detailed and onerous system—Drake suggests a policy in which campaigns "list their donations of $250 or more within 24 hours of getting the contribution"—the burdens placed on campaigning need to be justified with something more tangible. Forcing campaigns to put more resources into filing reports that will not be widely read instead of reaching voters with their own messages, especially in the closing days before an election, is not just a problem of bad policy: it's an abridgment of free speech, and must answer to the First Amendment.