Electoral college and campaign finance
Electoral College
The presidential election is governed by the Electoral College as outlined in Article 2 of the Constitution. Two Constitutional amendments deal with the Electoral College. The 12th amendment states that the electors must vote separately for President and Vice President to ensure that there will never be an argument that the two people on the ticket are technically tied for the position of President. The 23rd Amendment states that DC counts as a state when it comes to presidential elections. Below is the breakdown of the Electoral College process:
- The Number of Electoral College votes assigned to each state is based on the number of representatives (based on population) and the number of senators, which is fixed (2 per state)
- The minimum number of Electoral College votes per state is 3 because each state has 2 senators and at least one representative
- The total number of Electoral College votes for the entire country is 538, since there are 435 representatives for the House of Representatives, 100 senators, and then 3 Electoral College votes reserved for DC
- The minimum number of Electoral College votes needed to win is 270, which is the majority needed out of a total of 538.
- The Electoral College is winner-take-all in almost all states. This means that the winner of the popular vote in a state will win all the Electoral College votes in that state.
- Each candidate is represented by a slate of electors chosen by the party in each state. If a candidate wins the popular vote in a state, his electors are the ones who will officially cast the ballot for him in the state’s capital.
- If no candidate gets to 270, the House of Representatives will choose the president (every state gets one vote, for example if 9 of Georgia’s Representatives vote for the Republican candidate and 5 of Georgia’s representatives vote for the Democratic candidate, the Republican candidate would get one vote from Georgia) and the Senate chooses the VP (Every senator has one vote, and if there is a 50-50 tie, the current Vice President would break the tie).
Cons:
- Faithless elector: It is possible that an elector would support another candidate and vote against the popular vote in that state. This is very unlikely and has never changed the outcome of an election.
- Win popular vote but lose the election: Due to the winner-take-all feature of the Electoral College, a candidate can win several states by a small margin, and lose other states by a large margin. This can result in a candidate receiving more popular votes but losing the Electoral College votes. This scenario happened in the 2016 presidential election, where Hillary Clinton received more popular votes, but lost the Electoral College vote to Donald Trump.
- Undecided election: If no one gets 270 Electoral College votes, the contest would be decided in the House of Representatives and the Senate, which could lead to a Republican Vice President and a Democratic President or vice versa.
- Winter-take-all feature: The winner-take-all feature of the Electoral College could discourage Democratic voters in red states and Republican voters in blue states from turning out to vote since the outcome is basically known.
Pros:
- The Electoral College is a known process and, overall, has worked
- The Electoral College identifies the winner quickly and accurately
- The Electoral College reflects federalism (it is based on national popular vote but also gives representation to each state, guaranteeing even the smallest state 3 Electoral College votes)
Campaign finance
Background: The expression is, “Money is the mother’s milk of politics!”
In order to run for election, candidates need a lot of money in order to run advertising and a campaign. According to the Federal Election Commission, presidential candidates raised 2 billion dollars in the 2023-2024 election cycle. Raising and spending money on elections is protected by the First Amendment. Freedom of speech clause. However, the government also has a right to prevent corruption in our elections. Congress has passed a number of laws attempting to regulate the flow of money in our elections. Campaigns have found loopholes in the laws. See below for the campaign finance laws and loopholes created since the Watergate scandal:
FECA law (Federal Elections Campaign Act) — 1973
- Established a government agency called the Federal Election Commission. This government agency was created to ensure campaign finance laws are enforced.
- Created PACs (political action committees). Corporations were previously banned from giving money to candidates out of concern for corruption. PACs that are legal entities must have at least 50 members, raise and spend money on behalf of candidates, although they can not give more than $5,000 to any candidate per election cycle and $15,000 to a national party committee. Businesses and labor unions have their own political action committees, which enable them to legally raise and donate money to candidates.
- The individual contribution limit was $1,000 per candidate. The concern here is to prevent rich donors from contributing a lot of money to candidates in return for favors.
Loopholes:
- The loophole found around this law was soft money. This is when individuals, PACs, and outside groups could give unlimited money to political parties, and as long as the money was not used to back political candidates, it fell outside the law. Political parties could make an ad showing the candidate and asking people to vote for that candidate, but as long as the name of the candidate was not mentioned, no laws were broken. This is referred to as issue advocacy advertising since it does not explicitly advocate for or against the election of a candidate. This was a way for people and groups to still fund the candidates without violating the letter of the law. Therefore, soft money was allowed to be used for issue advocacy and not for express advocacy, where the money is used to advocate for and against the election of candidates.
- The other loophole around this law was for PACs and outside groups to spend unlimited amounts of money for and against candidates and as long as there was no coordination with the candidates, it was allowed under the law.
Public financing
Public financing is when the government (funded by taxpayers) gives money to candidates running for office. There is no public financing for gubernatorial and congressional elections, only for presidential elections. To be eligible for public financing in the presidential primaries, the candidate must first raise at least 5,000 dollars in contributions of 250 dollars or less in at least 20 states. The government then matches the $250 individual contributions up to a certain limit. If candidates accept public matching funds, they must agree to a spending limit. As a result, many candidates today decline public matching funds, so they are not under any spending limits. The government would also provide a grant to presidential nominees up to a certain limit, under the condition that they agree to a spending limit. Similar to public matching funds, candidates today decline this grant so they would not be subject to a spending limit. The government would also provide funding for the minor party candidates under the condition that the party’s candidate received at least 5% of the total popular vote in the last presidential election.
Bipartisan Campaign Reform Act/McCain-Feingold — 2002
After the Supreme Court in Buckley v. Valeo (1976) upheld the limits on campaign contributions, Congress decided to reform the campaign finance laws and address the loopholes discussed above by passing the Bipartisan Campaign Reform Act sponsored by Senators McCain and Feingold. The provisions of the law were as follows:
- Banned soft money contributions
- Individual contribution limits were raised from $1,000 to $2,000.
- Electioneering communication, which is an independent expenditure by corporations, labor unions, and other groups clearly referring to a candidate, would not be allowed 30 days or earlier close to a primary election or 60 days or earlier close to a general election. The intent of this provision was not to allow certain groups to flood the airwaves close to an election, advocating for or against the election of a candidate.
The Supreme Court in McConnell v. FEC (2002) upheld the provisions of the BCRA (Bipartisan Campaign Reform Act) listed above.
Loopholes:
- 527 groups are named after a provision of the Internal Revenue code, and they can evade the soft money ban requirement by legally spending unlimited amounts of money on elections as long as they do not coordinate with a candidate or do not engage in express advocacy.
Citizens United v. FEC — Required Supreme Court case
A conservative group called Citizens United made a movie highly critical of Hillary Clinton before the 2012 presidential primaries and wanted to advertise and air them before the different primary dates. Therefore, the group challenged the electioneering communication provision of the BCRA in federal courts. The group argued that banning such communication would be a violation of the First Amendment, Freedom of Speech provision. The government argued that preventing corporations and unions from flooding the airwaves with ads advocating for or against candidates is a compelling governmental interest to prevent fraud in elections. The Supreme Court ruled that the 30-60 day electioneering communication ban discussed above is a violation of freedom of speech. The Court noted that such a ban is a violation of political speech, and also, political speech cannot be limited simply due to the wealth of the speaker.
As a result of the Citizens United ruling, super PACs have come out engaging in campaigns and elections. Super PACs can raise and spend unlimited amounts of money from corporations, unions, and individuals as long as they operate independently from a candidate. Super PACs, unlike 527 groups, can engage in express advocacy, openly advocating for and against candidates. Super PACs have become major sources of campaign funds in elections in recent years. Super PACs spent over 2 billion dollars in the 2024 election.
Other new groups engaged in raising and spending money in campaigns are 501©4 groups. These groups are dedicated to social welfare causes and spend no more than 50% of their funds on politics. As a result, they are allowed not to disclose their donors, unlike other groups. This is why they are also called dark money groups since they do not need to disclose their donors.