Last week, Kentucky gubernatorial candidate Matt Bevin learned that an ordinary campaign e-mail might have violated state campaign finance laws. When most Americans think about campaign finance, they think about cleaning up corruption and ending shady deals. But instead these laws weave regulatory mazes that can trip up even experienced candidates.
Bevin e-mailed Jefferson County Public School employees to share his vision for saving the state educational pension fund. The Kentucky Democratic Party responded in turn explaining that the very e-mail itself was illegal due to the state’s campaign finance provisions.
The law in question prohibits a candidate from soliciting a contribution of money or services from state employees. So if Bevin had asked for campaign contributions—send me $25 of support now—that would be illegal. Or if Bevin had asked for teachers to provide services of some sort—organizing a telephone bank—that would be illegal. But Bevin did something much different. He e-mailed teachers to share his vision how to save the state’s pension fund. And according to Kentucky’s regulatory scheme, that might just be illegal.
A paramount problem with campaign finance law is that it is written and interpreted by lawyers. So what most people think of when they hear “contribution” isn’t how campaign finance lawyers may use the term. We could probably all agree it would be bad to have teachers coerced to give contributions to a candidate in order to keep their job or salary level. And that’s easy to stop. But when the law interprets “contribution” to mean things like meeting with a candidate to discuss policy or whether a college intern stipend is a secret political contribution it disturbs all sorts of healthy and welcome political interaction by citizens.
When reformers attempt to build the better campaign finance mousetrap their goal is to expand the law in a way that captures more and more activity that just might, maybe, could-be electoral in nature. Where do we draw the line? When the Internet became a real medium of communication, the FEC considered serious attempts to regulate anything resembling political speech on it. Some states have decided that offering pro bono legal services constitutes secret political contributions. The list goes on.
Simple and streamlined definitions of what constitutes prohibited, potentially corrupt activity are easy to enact. But for reformers, this leaves a wide array of things people do—things that are hard to decide why they are done—unregulated. Is the local PTA’s advocacy about a new school bond ballot measure really about the ballot or really about the candidate behind it? Is a state think tank’s publication of papers about civil rights issues really about those issues or the political party supporting them? These things we cannot know, unless you are a reformer presuming to know.
Gubernatorial candidate Bevin cared about Kentucky’s pension issues and wanted to start a dialogue about them with state teachers. To pursue full cleanliness of the campaign finance variety, reformers would stop this speech, eliminate this discussion, and potentially fine the candidate due to his audacity in exercising his First Amendment rights. This then is the corrupting nature of reform today—making timely discussions prohibited in the name of electoral cleanliness.