In a piece that explicates recent campaign decisions made by front-running U.S. Senate candidate Republican Treasurer John Kennedy, independent journalist Jeremy Alford notes that Kennedy a huge amount of money from his state campaign account to a political action committee active in electing Senate candidates. This PAC presumably will spend on behalf of Kennedy this election cycle, but Alford points out that state reporting requirements, as 2016 is not a statewide election year, will not reflect the transaction from Kennedy’s account until the filing of annual reports due in early 2017.
Alford doesn’t like that lag and therefore proposes changing state law to require at least quarterly reporting in non-election years. Not only does federal law require that of active federal candidates and officeholders, but many states also do that and often even more, such as mandating monthly reporting.
However, Alford also assumes extra costs to the state for collecting such information and suggests that the campaigns pay for that. He notes that “Information … is … valuable and there’s nothing wrong with insisting that candidates give us more of it on a regular basis,” and “If it’s worth it to spend thousands of dollars on signage to make sure voters know their choices, then it’s definitely worth it to spend a fraction of that to update Louisiana’s campaign finance reporting system.”
While greater transparency cannot hurt the polity, the method of achieving it certainly can. Alford’s pay-to-play proposal likely runs afoul of the First Amendment that protects campaign speech. Jurisprudence in this area explains that citizens, by themselves or collectively, may have no limits put on their political speech (save the usual restrictions governing the health and safety of the public, libel, and slander), including the resources to attain that speech, one of these being money. By forcing campaigns to take a portion of their donated funds to pay administrative costs of regulation, this takes a resource intended to produce political speech and diverts it for another purpose unrelated to that, government administration. The judiciary would look very skeptically on such an idea that intrudes too heavily.
Note also that the self-financing idea would have a disproportionate burden on small resource candidacies. By definition, for these each unit of speech becomes proportionately higher in cost relative to all of it the fewer resources available and each diversion of funds to government represents a bigger piece of a smaller pie. While government may have a compelling interest in election honesty to make campaigns spend resources to track and submit contributions and expenditures that makes resources expended on compliance complementary to speech, it goes too far to exact tribute to allow that speech to occur.
Of course, this assumes significant extra state costs would occur under increased reporting standards. That’s highly debatable. Under current law, all but the lowest level offices (essentially, those elected in a district having a population of 35,000 or fewer and not elected parish-wide) must report electronically that makes reporting to posting the information online virtually free. And there’s no reason, given technological advances, that candidates for all offices should not submit electronically, eliminating costs of opening mail and scanning documents. Further, if money must be raised, simply increase filing costs and dedicate that sum to enforcement.
Yet besides constitutional and administrative aspects, there remains the philosophical question of whether this serves a sufficient transparency purpose. At their basics, reporting requirements only do two things: these reveal who with what interests backs whom, and how significantly they commit, both in terms of donors to and recipients of campaign spending. So in the case of Kennedy, what information would be so valuable for the public to know that they must know of it sooner rather than later? More specifically, what difference does it make that we find out that Kennedy transferred $X to a PAC, which will report reception of the funds and any expenditures on his behalf prior to the election before it or shortly thereafter, in the fall of 2016 before the election as opposed to after it in early 2017? We’ll still know about it, and how does knowledge of the transfer and the amount earlier have anything to do with the honest conduct of the 2016 election?
Certainly there’s no harm in more frequent reporting, and it also becomes helpful when dealing with contributions and expenditures close to election days, but if this becomes a matter of cost to taxpayers to enforce, more frequent reporting not attendant to contributions received and expenditures related to a specific election for that specific office don’t add any value. Again, reporting’s purpose it to tell us what interests line up behind the candidate and how significantly they do so and on whom the candidate deigns to spend presumably to perform campaign services for him, which allegedly would influence his performance in office. Except around elections, frequency of receiving this knowledge really would not matter in terms of assessing the honesty of an election, and otherwise the information remains reasonably accessible temporally for those wishing to assess performance in office for those who do win.
Thus, this change would do little to enhance the purpose of reporting requirements. There’s no reason not to do it if only taxpayer and/or campaign costs increase marginally, but beyond that it’s not worth it.