The Anglo-American Lawyer

This comparative law paper assesses whether the United States should adopt the same rules regarding campaign finance as the United Kingdom

I. Introduction

The US Supreme Court and Congress have wrestled with campaign finance for decades as they attempt to limit the appearance of corruption without abridging a person’s First Amendment rights.[1] Yet the Court’s continual dismantling of Congress’ legislative framework has led to an arguably ineffective campaign finance model. In the United Kingdom,[2] campaign finance has not received the same attention from the courts or the public that it has in the United States of America.[3] This paper addresses the differences in campaign finance between the UK and the USA, and explores those differences, with a focus on campaign contributions, donations, and whether money is speech. This paper also assesses whether the USA would benefit from adopting the UK’s approach to campaign finance, as the UK’s framework is such that it would allow Congress to regulate the flow of money in elections without the Court continually invalidating such regulation due to the First Amendment rights of donors and candidates.

A. Background into UK and USA Elections and Campaign Finance

The electoral systems in the UK and USA operate and regulate contributions to political candidates in two very different ways.

1. United Kingdom

While the UK is made up from three separate legal jurisdictions: England and Wales, Scotland, and Northern Ireland; the government sitting in Westminster is the UK government, and runs the UK as a whole. As a result, elections and campaign finance laws are generally applicable in each UK jurisdiction, however, it will be noted where that is not the case if it arises.

The UK runs a ‘first past the post’[4] parliamentary electoral system with the government consisting of 650 Members of Parliament[5] across all parties. The UK holds a General Election every five years, and the public vote for the MP that they would like to represent their individual constituency. The party that has a majority in the House of Commons – in other words, a party that has 326 or more MPs elected – will take control of the House of Commons and the leader of that party – an MP who is elected internally by the party themselves, not the public – will become the Prime Minister. There are further elections within the UK, such as for the Welsh Senedd, the Scottish Parliament, Northern Irish Assembly – each of which legislate for the devolved jurisdictions – and for local councils, however, this paper will, for simplicity, only look at the UK-wide General Election.

As for campaign finance, the UK has no contribution limits, but instead imposes expenditure limits of up to £30,000 ($41,697) per MP. Parties must disclose all spending, must report donations above £7,500 ($10,424.25),[6] and the Electoral Commission – a non-political entity – regulates campaign finance. Additionally, strict broadcasting rules ensuring impartiality allow each party free airtime of up to 4 minutes and 40 seconds.[7] Broadcasters are also prohibited from reporting on campaign issues or publishing opinion polls on TV, radio, or online until after the polls close at 10:00 p.m. on election day.[8]

2. United States of America

In contrast, the Presidential election in the USA is run through the Electoral College whereby each voter casts a vote for who they would like to be the President and the electors of each state then vote directly for the President in line with their states’ earlier popular vote. The Electoral College structure may appear to be similar to the UK’s parliamentary structure as the location of the vote matters more than the nationwide popular vote, sometimes leading to “wrong winners” – in other words, those who are elected despite losing the popular vote.[9] However, the key differences between the Electoral College and parliamentary system are that each person in the USA votes for who they would like to be President, whereas in the UK the people only vote for their local MP, not directly for the Prime Minister, and also that a minority of states could win an election for a President,[10] yet a Prime Minister still needs a majority of constituencies to win. For federal and state Congressional elections, the public vote directly for senators and representatives without the Electoral College. Federal elections are also administered by state and local governments, meaning that the way in which elections are administered – whether state or federal – may differ between states.[11]

The key points of campaign finance in the USA – focussing on federal elections – is that there are no expenditure limits, contributions are limited,[12] expenditures and contributions beyond $200 must be disclosed,[13] and the Federal Election Commission[14] – made up currently of two Democrats, one independent, and three Republicans – regulates campaign finance.

II. Campaign Contributions

A. Contribution Limits: An Overview

As briefly outlined above, in the USA contribution limits placed on parties and candidates vary based on the donor, recipient,[15] and election. Congress first imposed contribution limits through the Tillman Act[16] and political campaigns promptly found ways to either ignore or circumvent these limits through Political Action Committees.[17] Contribution limits were further implemented by Congress in subsequent Acts[18] and were again either ignored or circumvented by political campaigns, committees, and unions until the Federal Election Campaign Act,[19] which pulled everything together regarding expenditures, contributions, disclosures, and regulation. FECA was challenged in Buckley v. Valeo[20] in which the Court ruled on the constitutionality of the restrictions imposed by FECA based on the idea that money is speech and that those restrictions imposed by FECA violate the First Amendment. With respect to contributions, the Court held that contribution limits were constitutional as Congress has an interest in preventing corruption or the appearance of corruption[21] and that by allowing affluent people and corporations to contribute large sums to a candidate, a candidate could be improperly influenced.[22] Since Buckley,[23] both Congress and the Court have wrestled with campaign finance and contributions as corporations and individuals attempt to circumvent the limits through undisclosed sources – such as 501(c)(4)[24] organizations, super-PACs,[25] and dark money[26] – which is still becoming a larger issue within American politics, despite Congress’ legislative developments and Supreme Court precedent on the topic.

Meanwhile, the UK does not limit donations that a party or candidate may receive,[27] however, only “permissible donors” may contribute to candidates and parties.[28] In contrast to the USA, the UK does limit expenditures which arguably curtails the influential power of contributions on the tail end. Permissible donors may contribute as much as they like to a party or candidate, however, there is a legal obligation on the parties to disclose donations above £200 ($280) and on candidates to disclose donations above £50 ($70), so that donations may be regulated through transparency.[29]

B. How Contributions are Made

1. United States of America

In the USA, contributions make up the majority of a candidate’s election funds, with Joe Biden having raised $1.69 billion entirely from private funds in the 2020 election[30] and with the majority of funds being contributed by PACs and Super-PACs.[31] Contributions to candidates in federal elections come from a range of donors including individuals, companies, PACs, parties, and Super-PACs – all of which have separate contribution limits.[32] Given the large size of contributions from wealthy donors and corporations, there is a “disconnect between elected officials and the majority of people they represent”[33] as the majority of donations to a candidate come from a small number of large donors. This disconnect creates the appearance that a candidate or party will only listen to the needs of those major donors as opposed to the remaining c. 98% of people they represent[34] – who either did not donate or could only donate a small amount; as only 1.44% of the USA population donated over $200 to federal candidates, PACs, parties, and outside groups in 2019–2020.[35] There are often calls by organizations, such as the Brennan Center,[36] to reform campaign contributions in a way that allows small donors to contribute and have their voices heard among the large donations by wealthier donors, as seen with New York City’s voluntary match and multiply program.[37] New York City’s program ensures that small donations from New York City residents are matched and multiplied by the City to encourage candidates to engage more with New York City residents as opposed to wealthy donors.[38] However, this program is currently only voluntary for candidates in New York City and is not mandatory in any USA election. Therefore, it is likely that large donations by wealthy donors will continue make up the majority of a candidate’s campaign funds in future local, state, and federal elections.

2. United Kingdom

The UK only allows campaign contributions to parties or candidates from “permissible donors”;[39] these include individuals registered on the electoral register, a UK registered political party, a UK registered company, a UK registered trade union, a UK registered building society, a UK registered LLP, or a UK based unincorporated association. Foreign donors, other than British voters living abroad, are not considered permissible donors and any money donated from a non-permissible donor must be returned.[40]

Contributions to candidates and parties in the UK are substantial and often exceed party expenditures with £30.7 million[41] ($43.4 million) being donated across all parties in the 2019 General Election cycle, despite parties having a maximum spending cap of up to £19.5 million[42] ($27.5 million); although most parties spend significantly less than that maximum with Plaid Cymru spending only £183,194 ($257,684) and the Scottish National Party spending just over £1 million ($1.4 million) during the 2019 General Election.[43] Further, during the 2019 General Election cycle, the Conservative Party received £19.4 million[44] ($26.8 million) from donations in the six weeks prior to the election and spent only £16 million[45] ($22.1 million) overall; and in the 2019 year, both the Conservative and Labour parties had incomes – from donations, memberships, and other sources – greater than their expenditures.[46] There is no requirement on the parties or candidates to return any contributions in excess of their expenditures at the end of the election cycle. Instead, the parties disclose their funds to the Electoral Commission and through annual financial reports[47] as they operate like any other business. Parties simply keep the excess funds and use them, like any other business would, as they continue to operate full-time outside of the election period.

Additionally, in contrast to the USA, individual contributions make up over half of all contributions in the UK as in the 2019 General Election it was reported that 62% of contributions were made up from individuals, 21% from companies, and 16% from trade unions.[48] However, individual donations are still often from a small number of wealthy donors. The reported average value per donation for the Conservative and Labour parties in the 2019 General Election were £68,026 ($94,570) and £12,265 ($17,051) respectively,[49] which leads to the same question of whether parties as a whole are still listening to the majority of the people they represent, or just those who donate large sums. The answer to that question may be obvious in the case of the Conservatives, dubbed the “party of billionaires”,[50] however, the question remains in the case of the Labour Party who, although advertise themselves as being “for the many”,[51] still receive large donations which doubled in size between 2017 and 2019.[52] With respect to Labour, former leader, Jeremy Corbyn, focussed on small donations and even alienated large donors without weakening the party’s financial position with small donations totalling £18 million ($24.8 million) and party membership fees totalling £16 million ($22.1 million) under Corbyn’s leadership.[53] However, under Keir Starmer’s new leadership it has been reported that large donors will be returning to Labour,[54] thus restating the question of whether Labour will also be focussing on the voices of large donors as opposed to the small individuals in future election cycles. This question is especially prominent as Corbyn was an unpopular and unsuccessful leader,[55] despite his fundraising, so the Labour Party will be eager to move away from “Corbynism”.[56]

C. Self-Financed Candidates

Candidates in the USA may use their own personal funds to run a large campaign without relying on third party donations.[57] Candidates using their own personal funds are not subject to any contribution limits, however, the self-contributions must be reported.[58] Candidates use self-funding as a way to bypass contribution limits and donate large amounts to political committees, as evidenced with Mayor Bloomberg donating $18 million to the DNC[59] – far in excess of the $35,500 limit placed on individuals.[60]

In the UK there is no real question of self-financed candidates as all party funds come from membership fees, donations, and state funding[61] as opposed to self-funding. I consider that this difference between the UK and USA comes down to the fact that the UK has no contribution limits. As a result, parties and candidates raise as much as they like from donors and do not have to spend their own personal funds on the ever increasing cost of campaigns. Candidates in the UK are legally allowed to spend their own personal funds on their campaign as Section 74(1) of the Representation of the People Act states that:

“The candidate at an election may pay any personal expense incurred by him on account of or in connection with or incidental to the election; but the amount which a candidate at a parliamentary election may pay shall not exceed £600 …”[62] ($843).

However, Section 74(1) is written more as an expenditure limit on the candidate as opposed to limiting or allowing self-contributions. Despite this, given that the amount the major parties receive in third party donations[63] – making up the majority, if not all, of their allowed expenditures – there is no incentive or necessity for a party-affiliated candidate to contribute from their own personal funds. Although it is true that independent candidates with no party affiliation or membership use their own personal funds for election expenses, if for no other reason than to just register for the election, as they do not have the “oversight or national clout of a party machine”[64] and often only receive small donations from local constituents.[65]

 

 

D. Corruption

Political corruption has been a concern of the Court and Congress throughout history, as was artistically, and correctly, highlighted in Hamilton: An American Musical, stating: “corruption’s such an old song that we can sing along in harmony”;[66] referring to the long history of political corruption in the USA,[67] spanning from the 18^th century to the present day.[68] The rationale behind contribution limits imposed by Congress was to limit corruption or the appearance of corruption[69] as large donations from individuals or companies could have an influential power over a candidate – a concern that has recently been brought up in the UK with Prime Minister Boris Johnson’s apartment renovations and Caribbean holiday payment and what the Prime Minister may have promised the donors “in return for their generosity”.[70] However, despite this, the Courts are failing to recognize another pressing form of political corruption – namely those politicians who are corrupt notwithstanding money and outside influence.

The primary form of corruption that the Courts – and the public – are concerned about is quid pro quo corruption and bribery.[71] However, answering the question of whether this type of corruption is prevalent is difficult to answer without a de facto finding of corruption, as with the Watergate Scandal,[72] as there is no bright-line rule of what corruption is and the public perception of what is corrupt varies from person-to-person.[73] Corruption in campaign finance is an interesting topic in the USA as campaign finance developments to limit corruption only tend to appear after a major scandal. This is evidenced from the Teapot Dome Scandal[74] resulting in the Federal Corrupt Practices Act,[75] to Bill Clinton using funds for issue advocacy – which although was found not to be corrupt due to the footnote in Buckley,[76] was arguably corrupt as it was abusing a loophole and position of power – leading to the Bipartisan Campaign Reform Act.[77] However, despite these legislative developments, corruption – or the appearance of corruption – has not disappeared and money continues to flow through campaigns via improper means – including through dark money,[78] with over $1 billion being spent in dark money in the 2020 Presidential Election.[79]

Further, the question of whether the USA’s campaign finance restrictions do in fact limit corruption is answered by looking to the UK, where there is not as much of a concern of contributions being corrupting as there is in the USA. There are, of course, criminal offences aimed at preventing corrupt election practices such as bribery[80] – highlighting the various forms of past or potential corruption in UK politics and the acknowledgment that contributions may be corrupting – but there are also real concerns of the politicians themselves being corrupt outside of influence. In the past year Conservative MPs have gotten away with breaking ministerial code,[81] have given large government contracts to companies that have links with Conservative MPs,[82] are seeking to limit free speech and the right to protest,[83] and have used donor funds improperly.[84] A further example highlighting the non-pecuniary and free from influence corruption in UK politics comes after a Cabinet Office inquiry which found that Priti Patel – the UK Home Secretary – had been bullying her staff and broke the ministerial code of conduct.[85] Despite this finding, the Home Secretary managed to avoid any punishment from the Prime Minister, who is the sole and final arbiter of ministerial code matters, as he simply ignored the results of the Cabinet Office inquiry that uncovered the bullying and ruled that Priti Patel did not break the code of conduct.[86] This decision by the Prime Minister has subsequently been labelled a “cover up”[87] and is one of many examples whereby the Prime Minister has protected and given benefits to his close allies, demonstrating the internal corruption that is present in Westminster. Additionally, this point of non-pecuniary internal corruption is also evident in the USA with Governor Cuomo prioritizing his family members and associates for COVID testing at the beginning of the pandemic,[88] abusing his position of power for the benefit of his family – without any influence or pecuniary gain.

There is a real question in modern politics as to whether corruption results from third parties as much as it does from politicians who are corrupt and seek to abuse their powers and funds by their own volition. The USA and UK are often proud of the fact that they are modern countries without the corrupted officials that are prevalent in countries such as Somalia and South Sudan.[89] However, with elected officials in the UK and USA getting away with using their positions to help themselves[90] and their friends[91] a question is raised as to whether this is a level of corruption that the public in the USA and UK are accustomed to, whereas bribery and quid pro quo corruption is a type of corruption that the public is not accustomed to and will not accept. Is this also due to politicians drawing greater focus onto bribery and quid pro quo corruption than onto their own corrupt practices, possibly as a way to divert attention away from their own corrupt practices? Additionally, focussing on the USA, can Congress and the judiciary[92] be trusted to implement campaign finance rules properly and ethically when they benefit from large contributions, dark money, and holding positions of power?

Evidently, while quid pro quo corruption and bribery may be a concern in politics, it should not be the primary concern in either the USA or UK, but attention should be drawn to politicians that are corrupt and engage in corrupt practices notwithstanding third party donations. The legislation and case law in both countries suggest that the legislature and judiciary are focussing on the wrong thing, but where there are not sufficient powers to remove or challenge corrupt politicians – either due to party allegiances in impeachment proceedings in the USA,[93] or due to the ‘judge and jury’ in these types of issues being the (corrupt) head of the party in the UK[94] – it is difficult to see how this more pressing form of corruption may be resolved, especially if politicians are not forthright about their corrupt practices and attempt to divert attention away from them. In fact, it is unlikely that this form of corruption will ever be resolved as politicians in the USA and UK benefit from their own internal corrupt practices and will likely continue to distract the public by continuing to focus on the alternative – less pressing – forms of corruption such as bribery instead of legislating to prevent internal corruption.

III. Does Money Equal Speech?

A key issue at the heart of campaign finance in the USA, which is particularly relevant to contribution limits, is whether money is speech, thus benefitting from First Amendment rights. In my view, money is not speech and should not be afforded First Amendment rights as giving money such rights has only gone to complicate campaign finance restrictions and create an ineffective campaign finance system. Money is a way of facilitating speech, it itself does not talk, nor does it express any ideas; a dollar bill does not say anything, but it is the holder of that dollar bill that does. The money only aids its holder in spreading their speech, if the money is used in that context as opposed to being given a different – non-political – use.

Yet the Court disagrees. The Court has repeatedly held that contributions are like filtered or indirect speech and expenditures are like direct speech, hence how questions of constitutionality under the First Amendment continuously arise when limits are placed on campaign finance. In Buckley,[95] the Court held that contribution limits were constitutional and did not violate the First Amendment as those limitations enhanced the integrity of the democratic system,[96] thus justifying a curtailment on free speech. A question arising from this is whether if money had property rights as opposed to speech rights, as propositioned by Justice Stevens[97], would contribution limits still be constitutional or necessary?

In an unsurprising contrast to the USA, the UK, whose freedom of expression is granted by Article 10 of the European Convention on Human Rights,[98] does not view money as speech. The first case on this is Bowman v United Kingdom[99] which found that a £5 ($7) spending limit on third party electioneering was an unlawful restriction on a person’s Article 10 rights. What can be drawn from this decision by the European Court of Human Rights[100] – whose decisions made prior to January 2021 are binding on the UK[101] – is that the limit was not unlawful due to money having speech rights, thus any restriction on spending being subject to an equivalent of strict judicial scrutiny, but that the amount of £5 ($7) was too low for any person to actually spread information – meaning, in sum, that the ECtHR saw money not as speech, but money as aiding speech. Further, in Animal Defenders International v United Kingdom[102], the ECtHR found that the UK’s ban on spending money on political advertisements was compatible with Article 10, further demonstrating how the ECtHR – and the UK – view money not as speech itself but as a way of aiding speech.

The two viewpoints, simply, are whether money has speech rights or whether money merely assists speech. In my consideration the UK has the right approach. Money is not speech as it has no voice itself, money has various functions and while it may pay to spread speech, it certainly does not have the same characteristics as speech. Justice Stevens, in his concurrence in Shrink Missouri[103] stated clearly, and correctly:

“Speech has the power to inspire volunteers to perform a multitude of tasks on a campaign trail, on a battleground, or even on a football field. Money, meanwhile, has the power to pay hired laborers to perform the same tasks”.[104]

Justice Stevens in his concurrence does not disregard the need to protect money, however, he recognizes that money is just property and therefore has property rights and protections, thus eliminating the need for money to have free speech protections. Additionally, to say money is speech as opposed to property would open the floodgates as to what else could be considered speech – could gifting property to a person then afford that property free speech protections? Would a voter hospitably giving a candidate on their doorstep a coffee be considered speech? At this point it would become even more difficult, and impractical, to regulate campaign finance and corruption if property were given free speech protections simply because it had a potential corrupting influence.

IV. Should the USA Adopt a British Approach?

A. Money is Not Speech

If the USA were to take the UK’s view that money is not itself speech and adopt Justice Steven’s approach in saying money is instead property, then there would be fewer issues surrounding campaign finance and free speech. If money were viewed as property as opposed to speech, then the rationale in Buckley[105] that contributions are indirect speech, can be abandoned without there being concerns by the Court that contributions have a voice and therefore have a corrupting influence in politics. The USA would then, in my view, be able to move towards focussing on limiting corruption by limiting expenditures without concern for the First Amendment and without having to restrict contributions, thus also keeping a level playing field between candidates and parties. It is evident throughout history that both Congress and the Court have struggled with limiting the flow of money and corruption in elections, primarily because the Courts have seen money as speech, however, seeing money as property makes it easier for both Congress and the Court to limit the flow of money both in and out of a campaign. In turn, this will achieve Congress’ and the Court’s ultimate aim of preventing quid pro quo corruption and bribery – as seen in the UK where it has already been outlined how quid pro quo corruption is not particularly present, although corruption takes another form and primarily lies with the dishonest[106] and incompetent[107] individual politicians themselves.

It may be argued that seeing money as property as opposed to speech will have no real impact on contributions as in the USA there are already limits on contributions as the Buckley Court held that there was an interest in preventing the appearance of corruption. Yet treating money as property could prevent any future challenges by individuals, PACs, and corporations over campaign finance limits. It will allow Congress and the Court to focus on limiting expenditures to prevent corruption while having unlimited contributions, as like the UK. Therefore, there is a strong case to be made for money to be given property rights over speech rights, not solely for contributions, but for preventing corruption across all aspects of a campaign.

B. Limit Expenditures, Not Contributions

As detailed above, the USA and UK work in contrast to each other with respect to campaign finance. The USA has contribution limits but no expenditure limits – the rationale being that contributions from third parties are more corrupting than expenditures that come from the candidate – and the UK has no contribution limits but has expenditure limits – primarily to maintain a level playing field among candidates.

The rationales behind these regulations in both countries go to show how each country views money – furthering the discussion into whether money is speech. However, in a time where USA Presidential elections are costing up to $14 billion,[108] is it time to impose expenditure limits and strive to lower the overall costs of an election, much like in the UK?[109] Spending $14 billion on an election is excessive – especially as that amount exceeds the GDP of “numerous countries”,[110] and other countries spend far less in elections or rely more on public funding[111] – and such excessive spending leads to trends such as the biggest spender winning an election,[112] which is not the way a democratic election should run. By allowing money to control politics to the extent that the biggest spender wins, it undermines the whole democratic process and opens the doors for rife corruption in the forms of quid pro quo, bribery, and having politicians with corrupt practices or intentions.[113]

By adopting the British approach – abandoning contribution limits and implementing expenditure limits – Congress and the Court can target corruption directly by restricting the politician, and also lower the overall cost of an election. If the USA maintain their current approach, contributions will continue to find their way into politics, regardless of any attempt to limit them, as has been seen throughout history – as Justice Kennedy stated in Shrink Missouri:[114]

“… contributors and candidates devise ever more elaborate methods of avoiding contribution limits.”[115]

Allowing all contributions may seem counterintuitive when trying to limit the appearance of corruption, however, by taking the UK’s approach of limiting what of those contributions a politician may spend is, in my view, the answer. It follows that if a candidate had five donors contributing $5 million each, and a candidate is then restricted to only spending $10 million, then that candidate may not be influenced as easily as they cannot make use of all funds supplied to them – even if the intention of those contributions were to influence the politician. Additionally, the UK’s approach puts every party on a level playing field. It does not matter how much a party or candidate receives in donations as that will not determine who is to win the election, as is the apparent case in the USA,[116] as only a certain amount may be spent overall – with public financing options for the less wealthy candidates – thus keeping public confidence in the electoral system.

Of course, the USA is larger than the UK in both population and land mass, therefore the costs of a campaign will logically be greater in the USA than the UK, however, that still does not discount the rationale behind the UK’s approach. The USA may ultimately solve their issues of corruption and rising election costs through adopting the UK’s approach, making the electoral process fairer, more democratic, and less fearful of quid pro quo corruption.

C. Public Financing Campaigns

In the UK there are public financing options available to opposing parties and smaller parties – known as ‘Short Money’[117] – and free, impartial public broadcasting available to all parties.

1. Short Money

Named after former Labour MP, Edward Short, Short Money is state funding available to parties opposing the incumbent party in a General Election to be used for general parliamentary business and research, payments towards travel expenses, and support for the office of the leader of the opposition.[118] While parties primarily get their funds from membership fees and donations, Short Money is important – especially for smaller parties – as it allows them to be on equal footing with the incumbent who, with governmental resources, safe seats,[119] and the Incumbency Effect[120] in their favor, have an unfair advantage when it comes to re-election.[121]

An issue in USA politics – especially with Presidential races – is that the costs of elections are continuously increasing and reach costs that are simply unattainable for a self-financed or smaller candidate. As a result, smaller candidates are unable to reach their full audience and may be overshadowed by the larger candidates – including the incumbent who has the unfair advantage of being well-known and having the resources available to easily reach a large audience. Following on from the earlier point about the biggest spender winning elections and how that undermines the democratic process, it would clearly follow that a smaller candidate – who may be better for the role – without large private donors or personal funds may miss out simply because of their lack of finances. By implementing a form of Short Money, the USA can limit this issue. Smaller candidates and opposing candidates will be able to still reach larger audiences, making the electoral process more accessible for candidates, which can only be a good thing when a country is to decide who the best person is to lead it.

Using public funds for elections is not a straightforward issue across the USA as although there are public funding programs available, they do not work effectively.[122] This is mainly because some public funding programs are too restrictive as there are limitations on what a candidate may spend if they accept public funds.[123] Evidently, this is ineffective in the USA where election costs are rising, as a candidate who is limited in what they may spend is almost guaranteed to lose. However, under the proposal of this paper – namely that the USA adopts the UK’s approach to campaign finance – the restrictions imposed by the existing public financing programs in the USA would not be such an issue, especially if the public funds align with the expenditure limits. However, a public funding ‘Short Money’ style system would likely have an adverse impact against the media and other advertisers who receive a lot of money from campaign expenditures if elections become primarily state-funded with expenditure limits.

2. Free Broadcasting

A key part of public funding in the UK is free broadcasting for all parties. Parties are given up to 4 minutes and 40 seconds of free TV airtime, and up to 2 minutes and 30 seconds radio airtime which will be aired, for free, on every licenced public service TV channel and analogue radio service.[124] Further, political parties are unable to privately pay for broadcasting on TV or radio.[125] This system of free broadcasting furthers the UK’s aim of ensuring all parties and candidates are on equal footing by preventing wealthier parties from purchasing more broadcasting time in order to either overshadow their opponents or just to appear on TV and radio more frequently as a way of gaining support and popularity among voters.

In the USA, costs of advertisements are increasing with it being reported that over $5 billion had been spent on TV advertisements in the 2020 election cycle weeks before the election day itself.[126] These rising costs keep smaller candidates from reaching their audience, thus leading to those candidates inevitably losing. A solution to this issue, as above, is to implement free broadcasting and to limit private broadcasting as in the UK. This system, as it works in the UK, would allow all candidates to receive the same amount of broadcast time across the country ensuring that every candidate is heard and that every candidate is on equal footing, which is essential for a democratic election as opposed to the current system whereby only the wealthy are heard and elected. However, media outlets would likely oppose free broadcasting as a large amount of campaign expenditures are spent on media advertisements, as demonstrated above with $5 billion being spent in 2020.[127] A solution that could work for this proposal of free broadcasting and the media is a system whereby the media are compensated by the state for providing free broadcasting to candidates, however, it is unlikely that any state compensation would match what the media outlets are receiving currently in an election year. A further solution that could work for this proposal is a system whereby parties are given a base amount of free broadcasting and that private broadcasting is only limited as opposed to abolished. However, this solution would still have media outlets losing some income, and such a system may still be abused by the wealthier parties. There are more potential solutions, such as allocating free broadcasting by wealth and keeping private broadcasting, such that poorer candidates would get free broadcasting and wealthier candidates would have to pay. However, those solutions raise issues not only of wealthy candidates being unaffected and able to abuse private broadcasting, but also of equality among candidates and keeping public confidence in the electoral system.

 A question is raised from this whether electoral spending in the USA has hit a point whereby any attempt to limit expenditures or offer free broadcasting will be met with resistance as media outlets and other advertisers would inevitably lose a large amount of revenue, unlike in the UK where free broadcasting has been in place since the early days of BBC Radio[128] and media outlets know no different and thus suffer no loss in the same way free broadcasting would cause media outlets to suffer loss in the USA.

V. Conclusions

In summary, there is a key difference across the UK and USA in terms of contribution limits which is linked to whether money is considered speech or property. While contribution limits in the USA seek to limit corruption, it does not do so effectively and it also does not control the real issues or real corruption as contributions still find their way into elections, as highlighted by Justice Kennedy, through Super-PACs and dark money. Further, without expenditure limits, money plays a very influential role in politics, regardless of whether it is speech or not, with the costs of elections in the USA rising and the trend of the biggest spenders winning elections. These are issues that can be solved by adopting a British approach to campaign finance which focuses primarily on ensuring that parties and candidates are on equal footing through providing public funding, free broadcasting, and limiting expenditures, while allowing unlimited contributions. This approach does not eliminate corruption completely – as there will always be corruption in politics, notwithstanding money and third party influence. However, it does clearly limit the concerns of bribery and quid pro quo corruption. Further, the British approach keeps the costs of elections down to a modest amount in comparison to the USA, with no real question of the biggest spender winning as all parties can receive and spend similar amounts. In sum, the British approach to campaign finance has the potential to solve many of the USA’s key issues with respect to campaign finance and corruption.

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[1] U.S. Const. amend. I

[2] Hereafter, “UK”

[3] Hereafter, “USA”

[4] See First Past the Post, Electoral Reform Society (2017) https://www.electoral-reform.org.uk/voting-systems/types-of-voting-system/first-past-the-post/

[5] Hereafter, “MP”

[6] See General Election 2019: How Much Can Parties Spend?, BBC News (Nov. 4, 2019) https://www.bbc.com/news/election-2019-50170067

[7] Ofcom Rules on Party Political and Referendum Broadcasts, Ofcom (Dec. 31, 2020) https://www.ofcom.org.uk/__data/assets/pdf_file/0035/99188/pprb-rules-december-2020.pdf

[8] Bianca Britton, Why the UK Has Such Restrictive Reporting Laws on Election Day, CNN Business (Dec. 12, 2019) https://www.cnn.com/2019/12/11/media/uk-election-reporting-restrictions-intl-gbr-ge19

[9] See Darren Hughes, The US Electoral College System is as Warped as the UK’s – Voters Both Sides of the Atlantic Deserve Reform, I News (Nov. 5, 2020) https://inews.co.uk/opinion/us-electoral-college-system-warped-as-the-uks-voters-both-sides-deserve-reform-749834

[10] See Edward Monaghan & Jessica Friesen, The Electoral College Allows a Minority of Americans to Control Us All|Opinion, NJ (Nov. 2, 2020) https://www.nj.com/opinion/2020/11/the-electoral-college-allows-a-minority-of-americans-to-control-us-all-opinion.html

[11] Elections & Voting, The White House, https://www.whitehouse.gov/about-the-white-house/our-government/elections-and-voting/

[12] See Contribution Limits, Federal Election Commission, https://www.fec.gov/help-candidates-and-committees/candidate-taking-receipts/contribution-limits/

[13] The FEC and the Federal Campaign Finance Law, Federal Election Commission (Feb. 2019), https://transition.fec.gov/pages/brochures/fecfeca.shtml#Disclosure

[14] Hereafter, “FEC”

[15] Contribution Limits, Federal Election Commission, https://www.fec.gov/help-candidates-and-committees/candidate-taking-receipts/contribution-limits/

[16] Tillman Act of 1907

[17] Hereafter, “PACs”

[18] See Federal Corrupt Practices Act of 1910; Hatch Act of 1939; Labor Management Relations Act of 1947; Federal Election Campaign Act of 1971.

[19] Hereafter, “FECA”

[20] Buckley v Valeo, 424 U.S. 1 (1976)

[21] Id.

[22] E.g., Elizabeth R. Purdy, Charles H. Keating, Brittanica (Mar. 27, 2021) https://www.britannica.com/biography/Charles-Keating#ref1248790

[23] Buckley (1976), supra note 20.

[24] Also, Not for Profit Social Welfare Organization

[25] See Super PACs, Open Secrets (2020) https://www.opensecrets.org/political-action-committees-pacs/super-pacs/2020

[26] See Dark Money Basics, Open Secrets, https://www.opensecrets.org/dark-money/basics

[27] See Clare Feikert, Campaign Finance: United Kingdom, Law Library of Congress (Apr. 2009) https://www.loc.gov/law/help/campaign-finance/uk.php#_ftn12

[28] Political Parties, Elections and Referendums Act 2000, Section 54 (U.K.)

[29] See Feikert, supra note 27.

[30] See Sean McMinn, Money Tracker: How Much Trump and Biden Have Raised in the 2020 Election, NPR (Dec. 4, 2020) https://www.npr.org/2020/05/20/858347477/money-tracker-how-much-trump-and-biden-have-raised-in-the-2020-election

[31] See Joe Biden, Open Secrets (2020) https://www.opensecrets.org/2020-presidential-race/joe-biden/candidate?id=N00001669

[32] See Contribution Limits, Federal Election Commission, https://www.fec.gov/help-candidates-and-committees/candidate-taking-receipts/contribution-limits/

[33] Public Campaign Financing, The Brennan Center for Justice (2012) https://www.brennancenter.org/issues/reform-money-politics/public-campaign-financing

[34] See Donor Demographics, Open Secrets (2020) https://www.opensecrets.org/elections-overview/donor-demographics?cycle=2020&display=A

[35] Id.

[36] See Public Campaign Financing, The Brennan Center for Justice (2012) https://www.brennancenter.org/issues/reform-money-politics/public-campaign-financing

[37] See How It Works, New York City Campaign Finance Board (2017) https://www.nyccfb.info/program/how-it-works/

[38] See Matching Funds Program, New York City Campaign Finance Board (2017) https://www.nyccfb.info/program

[39] Political Parties, Elections and Referendums Act 2000, Section 54

[40] See Feikert, supra note 27.

[41] Lukas Audickas, General Election 2019: Which Party Received the Most Donations?, House of Commons Library (Jan. 24, 2020) https://commonslibrary.parliament.uk/general-election-2019-which-party-received-the-most-donations/

[42] General Election 2019: How Much Can Parties Spend?, BBC News (Nov. 4, 2019) https://www.bbc.com/news/election-2019-50170067 (party contributions vary depending on how many constituencies a party is running and the population size of each constituency).

[43] See Chloe Chaplain, General Election 2019: Key Points from the Electoral Commission Spending Report for the UK Vote, I News (Oct. 7, 2020) https://inews.co.uk/news/politics/general-election-2019-report-spending-electoral-commission-points-uk-vote-680150

[44] See Audickas, supra note 41.

[45] Rajeev Syal, Conservatives Spent £16m on 2019 Election Win, Figures Show, The Guardian (Oct. 7, 2020) https://www.theguardian.com/politics/2020/oct/07/conservatives-spent-16m-on-2019-election-win-figures-show

[46] See The Electoral Commission Accounts (2021), http://search.electoralcommission.org.uk/Search/Accounts?currentPage=1&rows=10&sort=TotalIncome&order=desc&open=filter&et=pp&year=2019&register=gb&register=ni&register=none&regStatus=registered&rptBy=centralparty&optCols=BandName

[47] See Financial Accounts Published for UK’s Larger Political Parties, The Electoral Commission (Oct. 27, 2020) https://www.electoralcommission.org.uk/media-centre/financial-accounts-published-uks-larger-political-parties

[48] See Audickas, supra note 41.

[49] Id.

[50] Rob Merrick, Conservatives Branded ‘Party of Billionaires’ as One Third of UK’s Richest People Donate to Tories, Independent (Nov. 19, 2019) https://www.independent.co.uk/news/uk/politics/conservatives-general-election-donors-billionaire-john-mcdonnell-labour-a9208036.html

[51] See The Labour Party Manifesto 2017, The Labour Party (2017) https://labour.org.uk/wp-content/uploads/2017/10/labour-manifesto-2017.pdf

[52] See Audickas, supra note 41.

[53] Rajeev Syal, Labour Raised £10m More Than Tories Last Year, says Watchdog, The Guardian (Aug. 22, 2018) https://www.theguardian.com/politics/2018/aug/22/labour-given-10m-more-than-tories-last-year-says-electoral-commission

[54] Michael Savage, Big Labour Donors Returning to Party under Keir Starmer, The Guardian (Aug. 8, 2020) https://www.theguardian.com/politics/2020/aug/08/former-labour-donors-returning-to-party-under-keir-starmer-jeremy-corbyn

[55] See Jonathan Freedland, This is a Repudiation of Corbynism. Labour Needs to Ditch the Politics of the Sect, The Guardian (Dec. 13, 2019) https://www.theguardian.com/commentisfree/2019/dec/13/corbynism-labour-left-party

[56] See Stephen Fidler, U.K.’s Labour Party Moves Toward Center with Jeremy Corbyn’s Successor, The Wall Street Journal (Apr. 4, 2020) https://www.wsj.com/articles/u-k-s-labour-party-moves-toward-center-with-jeremy-corbyns-successor-11585999603

[57] See e.g., Jessica Piper, Wealthy Candidates Pay Their Own Way, But It’s Not an Easy Path to Victory, Open Secrets (Jul. 24, 2019) https://www.opensecrets.org/news/2019/07/wealthy-candidates-pay-their-own-way/

[58] Using the Personal Funds of the Candidate, Federal Election Commission (2014) https://www.fec.gov/help-candidates-and-committees/candidate-taking-receipts/using-personal-funds-candidate/

[59] John J. Martin, Self-Funded Campaigns and the Current (Lack of?) Limits on Candidate Contributions to Political Parties, 120 Columbia L. Rev. (2020) https://columbialawreview.org/content/self-funded-campaigns-and-the-current-lack-of-limits-on-candidate-contributions-to-political-parties/

[60] Id.

[61] Q&A: Political Party Funding, BBC News (Jul. 20, 2007) http://news.bbc.co.uk/2/hi/uk_news/politics/6065322.stm

[62] Representation of the People Act 1985, Section 74(1) (U.K.)

[63] See Audickas, supra note 41.

[64] See Emilio Casalicchio, The UK’s Independent Candidates Fighting for Political Survival, Politico (Nov. 25, 2019) https://www.politico.eu/article/the-uk-british-election-independent-candidates-fighting-for-political-survival/

[65] Id.

[66] Lin Manuel Miranda, et al., Non-Stop, in Hamilton: An American Musical (Original Broadway Cast Recording), Act 1 (Atlantic, 2015).

[67] See Non-Stop, Genius.com (2015) https://genius.com/8008209

[68] See History of Corruption, The Museum of Political Corruption (2011) http://www.museumofpoliticalcorruption.org/history-of-corruption.html

[69] See Buckley (1976), supra note 20.

[70] See Boris Johnson Facing Probe over Funding of 2019 Holiday, BBC News (May 10, 2021) https://www.bbc.com/news/uk-politics-57055882.

[71] See Douglas M. Spencer & Alexander G. Theodoridis, “Appearance of Corruption”: Linking Public Opinion and Campaign Finance Reform, 19 Election Law Journal 510 (2020) https://www.liebertpub.com/doi/pdfplus/10.1089/elj.2019.0590?casa_token=83R699cditEAAAAA:Qb4MNvMeAvzHJFM2K4IhYqkDUuoteGEP576FajXlTrPJIliLc_OCtVgSaEHIQhtEE0N-hW2x03Y5

[72] History.com Editors, Watergate Scandal, History (Sep. 25, 2019) https://www.history.com/topics/1970s/watergate

[73] See Spencer & Theodoridis, supra note 71.

[74] See History.com Editors, Teapot Dome Scandal, History (Jun. 10, 2019) https://www.history.com/topics/roaring-twenties/teapot-dome-scandal

[75] See Federal Corrupt Practices Act of 1910 (1910) (amended 1925).

[76] See Buckley (1976), supra note 20, at n.,52.

[77] Bipartisan Campaign Reform Act of 2002 (2002).

[78] See Dark Money Basics, supra note 26.

[79] Anna Massoglia & Karl Evers-Hillstrom, ‘Dark Money’ Topped $1 Billion in 2020, Largely Boosting Democrats, Open Secrets (Mar. 17, 2021) https://www.opensecrets.org/news/2021/03/one-billion-dark-money-2020-electioncycle/

[80] See Schofield’s Election Law, Ch. 13.

[81] See Ministerial Code News, Independent, https://www.independent.co.uk/topic/ministerial-code

[82] David Pegg, Fifth of UK Covid Contracts ‘Raised Red Flags for Possible Corruption’, The Guardian (Apr. 22, 2021) https://www.theguardian.com/world/2021/apr/22/fifth-of-uk-covid-contracts-raised-red-flags-for-possible-corruption

[83] Jack Pearce, The Crime and Policing Bill: An Assault on Freedom of Speech, Palatinate (Apr. 1, 2021) https://www.palatinate.org.uk/the-crime-and-policing-bill-an-assault-on-freedom-of-speech/

[84] Seth Thevoz, 7 Ways Boris Johnson’s Downing Street Refurb May Have Broken Rules, openDemocracy (Apr. 26, 2021) https://www.opendemocracy.net/en/dark-money-investigations/7-ways-boris-johnsons-downing-street-refurb-may-have-broken-rules/

[85] See Jamie Grierson, Priti Patel Bullying Inquiry: Why Was it Held and What Did it Find?, The Guardian (Nov. 20, 2020) https://www.theguardian.com/politics/2020/nov/20/priti-patel-bullying-inquiry-why-was-it-held-and-what-did-it-find

[86] Id.

[87] Id.

[88] Eyewitness News, Gov. Cuomo Prioritized Family Members and Associates for COVID Testing: Reports, abc 7 (Mar. 30, 2021) https://abc7ny.com/andrew-cuomo-family-testing-covid-test-access/10458579/

[89] See Corruption Perceptions Index, Transparency International (2020) https://www.transparency.org/en/cpi/2020/index/nzl

[90] See E.g., Marshall Cohen, Chronicling Trump’s 10 Worst Abuses of Power, CNN Politics (Jan. 24, 2021) https://www.cnn.com/2021/01/24/politics/trump-worst-abuses-of-power/index.html

[91] See Sophie Hill, The Tories ‘Chumocracy’ Over Covid Contracts is Destroying Public Trust, The Guardian (Nov. 21, 2020) https://www.theguardian.com/commentisfree/2020/nov/21/tories-covid-contracts-public-trust-government; E.g. Associated Press, Cuomo Impeachment Probe to Look Into Claims He Unlawfully Got Covid Testing for Relatives, Market Watch (Mar. 25, 2021) https://www.marketwatch.com/story/ethics-probe-sought-over-covid-testing-for-cuomos-relatives-01616716230

[92] See Justice Ginsburg in Williams-Yulee v. Florida Bar, 575 U.S. (2015): “Disproportionate spending to influence court judgments threatens both the appearance and actuality of judicial independence.”

[93] See Maeve Reston, Trump Loses His Impeachment Team Amid Unfaltering Loyalty from GOP, CNN Politics (Jan. 31, 2021) https://www.cnn.com/2021/01/31/politics/donald-trump-impeachment-marjorie-taylor-greene-gop/index.html

[94] See Patrick Worrall, What are the Consequences for Politicians who Lie?, Channel 4 (Apr. 28, 2021) https://www.channel4.com/news/factcheck/factcheck-what-are-the-consequences-for-politicians-who-lie; See Also Sophia Sleigh, Boris Johnson to get Final Say on Whether He Broke Ministerial Code over Flat Refurb, Evening Standard (Apr. 28, 2021) https://www.standard.co.uk/news/politics/boris-johnson-carrie-symonds-no11-downing-street-flat-refurbishment-b932215.html

[95] Buckley (1976), supra note 20.

[96] See Buckley v. Valeo, Oyez, https://www.oyez.org/cases/1975/75-436

[97] See Nixon v. Shrink Missouri, 528 U.S. 377 (2000)

[98] Hereafter, “Article 10”

[99] Bowman v United Kingdom [1998] ECHR 4 (Eur. Ct. H.R.)

[100] Hereafter, “ECtHR”

[101] See The Supreme Court and Europe, What is the Relationship Between the UK Supreme Court, the European Court of Human Rights, and the Court of Justice of the European Union?, The Supreme Court (2018) https://www.supremecourt.uk/about/the-supreme-court-and-europe.html

[102] Animal Defenders International v United Kingdom [2013] ECHR 362 (Eur. Ct. H.R.)

[103] Nixon v. Shrink Missouri, 528 U.S. 377 (2000)

[104] Id. at 398.

[105] Buckley (1976), supra note 20.

[106] See Simon Hattenstone, In Boris Johnson’s Long History of Lies, the Marcus Rashford one is the Strangest, The Guardian (Jun. 21, 2020) https://www.theguardian.com/commentisfree/2020/jun/21/boris-johnson-lies-marcus-rashford-prime-minister

[107] See Andy Beckett, Nobody Denies Johnson’s Government is Incompetent. But do Enough Voters Care?, The Guardian (Aug. 22, 2020) https://www.theguardian.com/commentisfree/2020/aug/22/boris-johnson-government-incompetent-prime-minister-competent

[108] 2020 Election to Cost $14 Billion, Blowing Away Spending Records, Open Secrets (Oct. 28, 2020) https://www.opensecrets.org/news/2020/10/cost-of-2020-election-14billion-update/

[109] General Election Spending Returns for Larger Parties Published, The Electoral Commission (Mar. 19, 2018) https://www.electoralcommission.org.uk/general-election-spending-returns-larger-parties-published

[110] See Reid Wilson, US Election Spending Exceeds GDP of Numerous Countries, The Hill (Dec. 7, 2020) https://thehill.com/homenews/campaign/529080-us-election-spending-exceeds-gdp-of-numerous-countries

[111] See Nick Thompson, International Campaign Finance: How Do Countries Compare?, CNN News (Mar. 5, 2012) https://www.cnn.com/2012/01/24/world/global-campaign-finance

[112] Bob Biersack, The Big Spender Always Wins?, Open Secrets (Jan. 11, 2012) https://www.opensecrets.org/news/2012/01/big-spender-always-wins/

[113] See Jeff Wiltse, The Origins of Montana’s Corrupt Practices Act: A More Complete History, 73 Mont. L. Rev. (2013) https://scholarship.law.umt.edu/cgi/viewcontent.cgi?referer=&httpsredir=1&article=2377&context=mlr

[114] Nixon v. Shrink Missouri, 528 U.S. 377 (2000)

[115] Id. at 406

[116] See Biersack, supra note 112.

[117] Public Funding for Political Parties, Institute for Government (2020) https://www.instituteforgovernment.org.uk/explainers/public-funding-political-parties

[118] Id.

[119] See Dean Burnett, The Incumbency Effect: The Psychology Behind Why Safe-Seats are ‘Safe’, The Guardian (May 6, 2015) https://www.theguardian.com/science/brain-flapping/2015/may/06/incumbent-effect-safe-seats-general-election-psycholgoy

[120] Id.

[121] See Q&A: Political Party Funding, BBC News, supra note 61.

[122] See Jason Scott-Sheets, Public Financing is Available for Presidential Candidates. So What’s Not to Like About Free Money?, Open Secrets (Apr. 14, 2016)

[123] Id.

[124] See Ofcom Rules on Party Political and Referendum Broadcasts, Supra.

[125] See Communications Act 2003 (U.K.)

[126] Record Shattering Political Ad Spending in the 2020 Election Cycle, AP News (Oct. 15, 2020) https://apnews.com/press-release/business-wire/television-broadcast-television-media-elections-government-and-politics-271edbb7bf3e4434b69fb15226c45db6

[127] Id.

[128] Party Election Broadcasts (2008), https://pebs.group.shef.ac.uk/