Fundraising advantages owing to candidates’ and supporters’ wealth cause concerns about electoral fairness that election laws cannot allay under current Supreme Court precedent. The Supreme Court has held that limits on self-funding and independent spending violate First Amendment rights.
Still, several campaign finance systems have tried to address fairness concerns. In 2008, the Supreme Court struck down the federal system’s so-called “Millionaire’s Amendment,” a provision that raised the contribution limit for candidates facing self-funders. In 2011, the Supreme Court struck down an Arizona law that gave additional public funding to candidates competing against high levels of self-funding or independent spending.
Illinois election law has an unusual feature that might help mitigate the fundraising disadvantages of candidates facing wealthy opponents. When a candidate self-finances beyond the legal threshold ($250,000 for statewide races, $100,000 for others), contribution limits are nullified for all campaigns in that race, including the self-funder. Likewise, when outside groups or individuals make independent expenditures in excess of the same limits, contribution limits are eliminated. This might deter campaign spenders by introducing the risk that nullifying contribution limits opens Pandora’s Box, and if wealthy electoral spenders are not deterred, the law might help their opposition compete.
Or the law might have the exact opposite effect. Candidates with the means to nullify contribution limits through self-funding can exploit the law to allow more money into their own campaigns. Likewise with independent spenders: if a person or political committee wants to give more to a candidate than the law allows (or thinks there are others that would do so), they can nullify limits through independent spending. Illinois’s unusual rule allows for wealthy candidates and funders to control what the law is in order to capitalize on a potential fundraising advantage.
The New York Times recently reviewed the 2014 governor’s race, where a self-funder and wealthy supporters teamed up to realize that possibility. Republican gubernatorial candidate Bruce Rauner self-funded beyond the limit, which set the stage for billionaire hedge fund manager Kenneth Griffin to give $5.5 million directly to the campaign. Rather than protecting the candidates with less self-funding potential, the law empowered the candidate with more.
The CREW research team looked at campaign finance data from the fourteen other 2014 races where contribution limits were nullified by self-funding or outside spending to find out whether the law generally benefits well-funded campaigns or their competitors. The case of the governor’s race was exceptional. Only two of the sixteen candidates who nullified the limits—or whose supporters nullified limits—received previously-prohibited contributions, and these two only drew between $3,000 and $4,000 more than they would have had contribution limits stayed in place. The worst-case scenario outcome, where wealthy electoral players use the law to unlock huge donations, was not borne out outside of the gubernatorial race.
But nor does the law appear to be working especially well. In 2014, the law did not support most of the campaigns that it was designed to. Only five of the 22 campaigns facing a self-funder or a candidate backed by high levels of independent spending received contributions greater than the prior limit. So though these campaigns were more likely than their well-funded competitors to receive additional funds, few did. Of those five, three received modest amounts of extra funding (between $1,500 and $12,000) while two others got around $40,000 and $80,000 more than they would have had the limits stayed in place.
Though these final two figures might have been meaningful sums, they don’t pose a strong counter-example to the governor’s race, where the law so effectively served the self-funder. When limits are removed, the law doesn’t necessarily benefit either the well-financed campaign or its competitor. The law benefits whichever candidate has more supporters willing to pour more money into a campaign. The problem is that only wealthy candidates and outside spenders can control whether the limits are on or off, so only well-financed candidates can capitalize on their perceived fundraising advantage. Illinois’ attempt at bringing more fairness to campaign finance does not seem to be doing the trick; the search for effective and legal electoral fairness measures continues.