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Campaign Finance South of the Border

Are there any lessons for the U.S. from a system whose goal is equality?

October 22, 2015

Last weekend, election law professors Joshua Douglas, Douglas Spencer and I addressed the Mexico’s Electoral Tribunal at a program called “Two Paths in the Law of Democracy.”  My task was to talk about the American approach to campaign finance and to learn as much as could from my Mexican hosts.

Going through passport control back into the United States, I was asked by the border guard what I did in Mexico. I told him I was talking to Mexican judges about money in politics. His response was: “why bother? The person with the most money always wins.” I had a plane to catch so I didn’t have the time to ask whether he meant in America or in Mexico.

One of the ways the U.S. and Mexico diverge is political spending limits.  Simply put, Mexico has them and we do not.  Legally, the American approach is routed in the 1976 case Buckley v. Valeo.  The Supreme Court was considering the Federal Election Campaign Act of 1974 (or FECA 74), a post-Watergate reform package that was designed to prevent the recurrence of Nixonian quid pro quo corruption.

While most of FECA 74 was upheld as being constitutional, the Buckley Supreme Court held that expenditure limits on individuals was unconstitutional. Corporate expenditure limits were struck down in Citizens United in 2010. The absence of spending limits is what allowed the price tag for the 2012 federal election to soar to over $6 billion.  While contributions to candidate committees and political parties are still limited, money spent “independently,” such as by Super PACs, is not.

Our peers in Mexico deal with political spending very differently. Campaigns have strict spending limits. According to Mexican law,  “Los gastos que realicen los partidos políticos, las coaliciones y sus candidatos, en la propaganda electoral y las actividades de campaña, no podrán rebasar los topes que para cada elección acuerde el Consejo General”.‌ Or roughly translated, “Expenses incurred by political parties, coalitions and candidates in electoral costs and campaign activities shall not exceed the limits for each election decided by the [Federal Electoral Institute’s] General Council.”  For example, Mexico’s 2012 presidential candidates had a $27 million limit.

Campaign funding flows through Mexico’s political parties, much of it  publicly funded. Although parties can accept contributions from unions (although there are time limits on the total amount), corporate donations are banned. Candidates cannot accept private contributions.

Unlike U.S. elections, which are often a chase to see who can buy the most airtime, Mexican political parties are granted free broadcast time. . The amount of airtime each party receives is allocated according to a formula: 30 percent is equally distributed, and 70 percent is distributed according to the percentage of the vote a party won in the most recent election. No entity can purchase political broadcasts.

Moreover, political advertising content is regulated. According to Article 41 of the Mexican Constitution, “the parties shall abstain from expressions which denigrate the institutions or the parties themselves, or slander people.” (For more in English on Mexico campaign finance rules, see here.)

Essentially, the big difference in the Mexican and U.S. approach to elections is conceptual. Mexican law places a high value on equality, while our law does not—at least when it comes to campaign funding. Here, the Supreme Court’s interpretation of the First Amendment privileges, quite literally, the ability to spend as much money as possible.  

The Roberts Supreme Court in particular is quite allergic to arguments that campaign finance reforms “level the playing field.” They have invalidated laws like Arizona’s public financing for this reason. “‘Leveling the playing field’ can sound like a good thing,” Chief Justice John Roberts wrote in the Arizona case. “But in a democracy, campaigning for office is not a game. It is a critically important form of speech.” By contrast, Mexican law emphasizes equality and what Americans would consider political free speech is significantly limited to serve that ideal.

Neither system is perfect. Like the U.S., Mexico suffers from widespread evasion and weak enforcement of election laws. But perhaps there is room for both countries to learn from the experiences on the other side of the border.

(Photo: Flickr/401K)

The views expressed are the author’s own and not necessarily those of the Brennan Center for Justice.