Should Political Endorsements Be Legal?

Campaign finance laws exist to provide transparency and prevent undue influence. It would be bad for a very rich person to write a giant check to a politician who, in return, passed laws that made that rich person richer. That’s especially risky because it’s a self-perpetuating cycle. If money turns into influence and influence turns into money, you have a vicious cycle that ends up in plutocracy. But it’s worth asking whether money is a special case, or whether this dangerous cycle applies to all forms of influence.

I recently saw a video in which a freshman House member explains the importance of regulating political influence:

Taking it one point at a time:

  1. Is it legal to run a campaign entirely funded by PACs?

Yes: that’s just asking “Are PACs legal, and can politicians refuse to accept donations from other sources?” You can run a campaign funded entirely by circus clowns, if you reject all donations that don’t come from guys with names like Bozo and Pennywise.

2. Is it legal to pay someone not to say things that are damaging to your campaign?

Apparently! What’s interesting to me is the question: is the problem the money or the suppression of speech relevant to a campaign? I would assume that it’s the nexus of these. But there are plenty of adjacent cases that are harder to decide. For example, should it be legal for a campaign to have an employee sign an NDA? That seems important. You don’t want a situation where every time a populist mounts a serious effort, the incumbent just hires up their staff to reverse-engineer the campaign. So buying silence in a campaign can work. And getting silence can, too; Bill Clinton’s proclivities were an open secret among his supporters for a long time, but they were reluctant to say anything because Bill was such an effective campaigner. (Should it have been legal for Hillary not to notice how much Bill enjoyed the company of women who weren’t her?)

In her testimony, Ocasio-Cortez cites a surprising headline (“Those payments to women were unseemly. That doesn’t mean they were illegal.”), but a careful examination of the website on which it’s hosted reveals that there’s a whole article. Here’s a sample:

These are actually interesting questions! A curious person might wonder where the line gets drawn. Clearly, paying someone specifically not to reveal that you had an affair with them is, as the headline says, unseemly. Its legality sounds like one of those questions with a counterintuitive answer based on the interpretation of roughly similar precedents.

3. Is there a limit to the laws a legislator can propose or debate, based on how they get their funding?

Apparently not! For example, suppose someone runs for Congress in a district with a lot of factories, and people who work at the factories contribute to their campaign, and then they get elected. There’s nothing saying they can’t work for the benefit of those constituents.

I had assumed this was part of the point of representative government. Granted, AOC is talking about working for the benefit of people who give you money, not people who give you votes, but either way there’s a conflict. House reps each represent under a quarter of a percent of the population, so if they can do something that benefits just those people, at the slight expense of everybody else, a) they probably will, and b) this is a problem. Or, at least, it’s a tradeoff between how representative a government is and how effective it is.

The video chyron is right: Representative Ocasio-Cortez’s viral video shows that “our system is fundamentally broken.” Poorly-informed people’s votes count just as much as well-informed people’s votes. And sometimes, the ill-informed elect one of their own.

Money and Power

People are right to be concerned with the role of money in politics, but sometimes their concerns get a little suspicious. When I read an op-ed telling me billionaires have too much influence, I have to remind myself that it’s generally a billionaire-owned media outlet telling me that the billionaires who haven’t bought newspapers have too much influence. Or maybe it doesn’t come from the owner, but from the journalists, which is no better. “If you want to spend millions rather than thousands on influence, you’ll have to do that through us” is the message.

Which doesn’t mean journalists are in it for the money. I assume they’re in it for the power. While journalists scoff at the idea that they have positive power (i.e. that they make something happen), the more interesting kind is negative power. The power to make something a non-story is immense. 2014’s photos become 2018’s viral sensation. There are lots of civil wars and ethnic conflicts in the world, but the one in Yemen got oddly little media attention for a long time. This may not be the result of some kind of journalistic conspiracy; some topics are just hard to cover, and maybe their editorial judgment differs from mine. But what’s important is that journalists, as individuals and as a class, can decide whether or not something is worth covering. Perhaps the best example of this was the 2016 campaign, when they seemed to decide that this time, Trump wasn’t just running to get attention. By the time they tried to stuff the genie back into the bottle it was too late.

Celebrities also have power. Taylor Swift allegedly caused a spike in voter registrations, for example. It’s hard to say how much of an impact celebrity endorsements have on voting itself, but presumably it’s non-negligible. You wouldn’t see celebrities getting endorsement deals at all if they didn’t affect behavior.

And this isn’t subject to any kind of contribution limit. If Oprah decides to endorse Elizabeth Warren, for example, that could very well win her the primary (arguably that’s what happened in 2008.) A major-party presidential vote costs $15–20 on average. Presumably most of those votes have their minds made up, and it’s really $0 for the first 40% of the vote and $75-$100 for every marginal voter past that point. Which implies that Oprah’s million-vote endorsement was worth up to $100 million. That’s a lot, considering the fact that if she’d donated some of her considerable fortune she would have had to stop at $5k.

The question is not “Should we give rich people more power?” The question is: “Should we specifically prefer that power other than the kind correlated with wealth gets special treatment?” I would argue that, of all kinds of power available to people, wealth is the most likely to be prosocial. Solve a small problem for a few people in a way anyone can, you have a little money; solve a big problem for a lot of people in a way nobody can copy, and you have a lot. Granted, some people come by their wealth through dishonest or socially harmful means. But it’s hard to have a rich country with a lot of rich people if most of them get rich that way. Poor countries with rich people, sure, but in a country where you can’t get rich honestly, there won’t be much of a middle class (“Oh, I just do enough crime to get by,”) and there won’t be many people to steal from.

An Unobjectionable Modest Proposal

I could see some potential first-amendment issues with a literal ban on political endorsements. Of course, I see first amendment issues around restricting campaign donations, and I see social issues around the fact that you can get an unlimited amount of campaign money from a rich person if you’re the rich person.

But while we can’t solve the problem, we can improve it. We should require endorsements to get registered and recorded, the same way other contributions are; you should be able to pull up an FEC database and see who endorsed whom, and when. And, of course, we should put a limit on it: if you’re a celebrity, and you’ve ever been paid more than $5,000 to endorse something, you have to take the value of your largest recent endorsement deal, subtract $5,000 from it, and donate that sum to the opponent of whoever you endorsed.

Just as a dollar limit means that the middle class, the millionaires, and the billionaires are all equal when it comes to direct donations, a dollar-equivalent limit means that local media personalities and popular high school football coaches get equal treatment to Kardashians and the like. This egalitarian approach is directly in keeping with the traditions and norms that undergird our system.

I’m not optimistic. The media can exercise the Indifference Veto and just not let this become a live issue. And if it does become an issue, I expect charismatic people who benefit from the status quo to wield their power in the service of maintaining their power. But it would be a better world with a more level playing field if we did it this way — a democracy can’t function without fairness, and scrupulous fairness applied only in domains where it’s beneficial is hardly fair.

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