State Campaign Finance Laws: The Issue of Enforcement

by James S . Fay*

OLITICAL scientists have shown an interest in the financing of political campaigns for at least the last 40 years. From the early works of Louise

Overacker and James K. Pollock to the more recent research by Herbert E. Alexander and Alexander Heard, the emphasis has tended to be on problems at the national level.’ State activity usually receives mention only in a brief chapter or in a footnote, although there are some notable exceptions.2 The authors’ attitudes toward state enforcement of relevant legislation have been almost uniformly pessimistic, although the evidence to document this pessi- mism has been thin. Overacker complained in 1932 that the results of attempts to control the use of money by state legislatures were most disappointing and discouraging. This theme was echoed in 1960 by Heard who stated that much of the legislation on state campaign financing has been unenforced and un- enforceable, and again by Alexander in 1972.

In an effort to develop some harder data regarding state inspection of campaign finance reports and enforcement of legislation, contact was made in 1972 with appropriate officials in charge of administering campaign finance laws in the 50 states, Guam and Puerto Rico. Forty-two states submitted useful responses regarding their oversight and enforcement procedures.

At the time the questionnaire was mailed four states-Alaska, Delaware, Nevada and Rhode Island-had no campaign finance legislation on the books.

* James S. Fay is assistant professor of political science at California State University, Hayward.

1 Louise Overacker, Money in Politics (New York: The Macmillan Company, 1932) ; James K. Pollock, Party Campaign Funds (New York: A. A. Knopf, 1926); Herbert Alexander, Money in Politics (Washington: Public Affairs Press, 1972); and Alexander Heard, The Cost of Democracy (Chapel Hill: University of North Carolina Press, 1960).

2 “Loophole Legislation-State Campaign Finance Laws,” University of Pennsylvania Law Rewiew, 1966-1967, 1 1 5 2 ; Herbert E. Alexander and Laura Denny, Regulation of Political Finance (Berkeley: University of Cslifornia, Institute of Governmental Studies, 1966) ; and Citizens’ Research Foundation, A Survey of State Statutes Regulating Political Finance (Princeton, N. J . : Citizens’ Research Foundation, 1971). For more detailed case studies on state campaign finance see the series of monographs published by the Citizens’ Research Foundation. Two recent books by David Adamany, Financing Politics (Madi- son: University of Wisconsin Press, 1969) and Campaign Finance in America (Belmont, California: Wadsworth Publishing Company, 1972) focus on the role of political money in Wisconsin and Connecticut. Additional evidence of the violation of campaign finance statutes comes from Herbert E. Alexander and Kevin McKeough, Financing Campaigns joy Governor: New Jersey, 1965 (Princeton: Citizens’ Research Foundation, 1969). The major exception of the litany of state fdures to oversee and enforce the statutes is Elston Roady, “Ten Years of Florida’s ‘Who Gave It-Who Got It’ Law,” Law and Con- temporary Problems, Vol. XXVII, No. 3 (Summer 1962).

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604 NATIONAL CIVC REVIEW [December

Three states had only minimal laws: Louisiana and Georgia restricted only campaign contributions by corporations; Illinois forbade liquor dealers to contribute. Even those states which ostensibly had more comprehensive laws were in fact found to have a melange of poorly drafted or deliberately debilitating statutes which required campaign finance reports from candidates but not necessarily from committees or individuals working on their behalf, or which required reports of campaign receipts but not disbursements, or which applied to primaries but ignored general elections, or which failed to provide for any standardized reporting of required campaign information.

The adequacy of these statutes appeared to be mirrored in their enforce- ment. In their 1966 and 1971 studies of state campaign finance laws, Alex- ander and Denny noted that there was some type of inspection of campaign finance statements in 19 states. Responses to the questionnaire indicate, how- ever, that in a t least seven of these states the relevant official does not perceive this inspection to be part of his official duties (see Table 1).

TABLE 1 STATE INSPECTION OF CAMPAIGN FINNCE STATEMENTS

Alexander and Denny list of states where

campaign state- ments are checked

Responses to question: “Are election finance reports audited for completeness and

accuracy ?”

States which also audit statements

for completeness or accuracy or both

1. Connecticut

2. Florida 3. Kentucky 4. Maine 5 . Massachusetts 6. Michigan

7. Minnesota

S. Missouri 9. Montana 10. New Hampshire 11. North Carolina 12. Ohio

13. Oklahoma 14. Oregon 15. Pennsylvania

16. South Dakota 17. Texas 18. Utah

19. Wyoming

Reports “reviewed,” not

No audited

Yes No YeS Statements “checked

over” Statements audited for

“completeness” only No YeS No response No Statements receive

“minimal audit” No response Yes No audit unIess 5

No No No response to this

No

voters ask for one

question California Hawaii Maryland North Dakota Guam Puerto Rico

i9731 STATE CAMPAIGN FINANCE LAWS 605

Only 10 of the responding states had any records of statutory violations over the preceding five-year period, and most of these records indicated only one or two transgressions of the law. Oregon and Ohio officials, however, listed 150 and 800 violations per annum, respectively (see Table 2) . Due to the wide variety of state laws it is difficult to develop a precise definition for a “violation” of campaign finance Iegislation. The wide discrepancy in state responses would indicate that in the minds of many state officials the extent of violations is a subjective matter.

TABLE 2 RECORDED VIOLATIONS OF STATE CAMPAIGN FINANCE STATUTES

States which keep records of violations of campaign finance

statutes (as of April 1972) Number of violations

-~ ~

1. California “probably thousands” 2. Connecticut 2 3. Kentucky 2 4. Maryland 5. Wichigan at least 2 6. North Dakota 1 7. Ohio approximately 800 8. Oregon approximately 150 9. Wisconsin

“numerous” mostly technical violations

approximately 3-5 plus 5-1oo/o of campaign committees

Enforcement of campaign finance violations which are detected appear to proceed on an erratic basis, according to the officials of the few states that keep records on the matter. Oregon prosecuted 60 violations, and Maryland one of its “numerous” violations. Ohio didn’t know how many violations had been prosecuted (see Table 3, next page).

Looking at the state enforcement process as a whole, there appears to be a loose scattering of responsibility for auditing, investigating and prosecuting violators of election finance laws, all of which reflects the idiosyncratic impact of federalism in this area. The states responding assign responsibility for auditing campaign statements to a variety of elective and nonelective state- wide officials; investigations are handled by 12 different departments in the states; and the onus of instigating proceedings against violators falls on the state attorney general, the county attorney, the secretary of state, the lieu- tenant governor, the state registry of elections, the grand jury, or any private citizen, depending on the state.

The image emerging from the analysis is one of a gap between the goals of the reformers and the reality of existing laws and their enforcement. Several states have no legislation on the books. The laws that exist are often quite incomplete. Most states do not provide for adequate monitoring of the existing campaign finance statutes; most do not keep adequate records of violations, prosecutions and disposition of cases; and most do not vigorously enforce the legislation.

10. Wyoming 1

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TABLE 3 ENFORCEMENT OF CUPAIGN FINANCE STATUTZ VIOLATIONS

States which keep records of prosecu- tions of violations

of campaign Number of Disposition finance statutes Drosecutions of cases

1. California

2. Connecticut 3. Kentucky

4. Maryland

5. Michigan 6. North Dakota 7. Ohio

8. Oregon

9. Wisconsin

10. Wyoming

9

1

None 1 No information

Approximately 60 available

2 -3

None

1 acquittal, 4 cases pending

1 acquittal and 1 fine 1 disqualification from

holding office and 1 fine

state attorney wouldn’t press charges

n/a fine n/a

Sentences generally suspended

Only one case actually tried-the result was acquittal

n/a

The history of state efforts to control abuses in financing the election process is manifestly a history of failurefailure to draft comprehensive laws and failure to enforce even those inadequate laws which existed. To some extent the failure of regulation of campaign finance may be illustrative of a wider inability of twentieth-century reformers to achieve their goals through the legislative process. Once appropriate legislation was signed, many re- formers felt their job was accomplished. They assumed, as their foes did not, that the engines of administration would perform their tasks with a certain relentless efficiency, disregarding the personal relationships, the obliga- tions and the competitive swirl of partisan politics. Hence it was not always assumed to be obligatory to isolate the administration of these laws in some independent board. (This essential component of meaningful reform has recently been adopted by Kentucky (1966) and by New Jersey (1973) .)

In addition to the failure of administrative organization, at least in the area of campaign finance, there was a failure of legislative oversight. In brief, the reformers made no provision to determine the long-term effective- ness of their legislative innovations. There was a noticeable absence of require- ments for periodic reports which would detail successes or failures by those who administer the law. By not requiring reports the legislature ignored a critical link in the legislative process-feedback or learning. If we reasonably assume that any legislation is imperfect and incomplete and must be modified in the light of the experience of those who administer i t and are interested in its success, then we must require that such legislation undergo continual or a t least periodic evaluation to determine its workability.

19731 STATE CAMPAIGN FINANCE LAWS 60 7

Since the administrators of campaign finance laws were not required to keep detailed records of violations, prosecutions and convictions, it was impos- sible for the legislators to learn whether the laws they had passed were being implemented, or whether changes had to be made.

Whether these past omissions were due to the ignorance or arrogance of reformers, who thought that by passing a law they had soIved the problem, is uncertain. What is clear is that if campaign finance reform is to have any substance it must be built on a base of administration free from the immediate vortex of partisan politics and free from the administrative snares of the legislature’s own bureaucracy. There must also be regular independent evalu- ation of these laws to ferret out weaknesses and recommend improvements.

CHARTER-TINKERS I N NEW YORK (Continued from page 602)

possession and the school board members would have gone into office with a million more votes-nearly all meaningless ones!

Whether the current experience with school decentralization deserves longer trial is a separate question. This argument relates only to the continuation of popular election for such offices in the face of certainty that future turn- outs of voters will continue to be below 10 percent. And therefore vulnerable to invasion by small, self-serving groups!

Reverting now to the similar, untried projects of the newer charter-tinkers, they dl carry with them the same inevitable ineffectiveness, implicit and in- escapable, in submission to election of relatively little offices beyond voter patience. The voters won’t go with you into such foggy labyrinths.

It’s a mere pipe dream that cutting jagged lines as in a jigsaw puzzle around gobs of 200,000 people in the metropolis can create a neighborly “community.” For such a district there is no adequate press, no adequate separate news media. It is not like an independent city of the same population with its whole government, press, common problems, industries, clubs, names, events and known boundaries, history and character.

So far in the languid public discussions, the charter-tinkers have not, I think, spread the attractions of their sophomoric pipe dreams before the local party activists: Hundreds of millions of administrative dollars to be dispersed into the darkness of local public inattention. Hundreds of new sinecure jobs close at hand and, unguarded by public scrutiny, up for grabs by familiar political process. And for distribution in almost forgotten ways to strengthen a party.

It is an axiom of political science that voters decline to be bothered to scrutinize, discriminate and select candidates for little offices or numerous ones. The judicial system, school boards and proposed new contraptions do not offer enough drama or importance to catch the glances of millions.

The sovereign people must-and will-remain the competent judges of what participation they will deign to provide.