Toward a level playing field: French campaign finance laws

By: Alexandra Arkin

At any given time during the American political cycle, U.S. media is replete with reports about political fundraising and spending.  The Republican National Committee raised about $75 million in the first half of 2017, compared to the Democratic National Committee’s approximately $38 million.[1]  In August, the Democratic Congressional Campaign Committee broke its campaign fundraising record, beating the Republicans for the fourth consecutive month.[2]  In September, Republican efforts to repeal the Affordable Care Act picked up steam again in the Senate, in response to top GOP donors cutting off funding out of frustration with the GOP’s inability to use its lock on the executive and legislative branches of government to accomplish anything.[3]

Now, less than a year into Donald Trump’s presidency, intense political fundraising and spending may indicate that “a shadow campaign for the [Democrats’] 2020 presidential nomination is already well underway.”[4]  This comes after a presidential election when Hillary Clinton’s campaign spent $969.1 million, and pro-Clinton super PACs spent $215.1 million.[5]  Donald Trump spent $513 million, and pro-Trump super PACs spent $85.5 million.[6]

Post-Citizens United, super PACs have increased the cost of elections even more quickly.[7]  In the 2016 election, super PACs raised nearly $600 million, including $189.4 million for Clinton and $59.3 million for Trump.[8]

French presidential candidates are significantly more constrained than their American counterparts.  In contrast to the U.S. (where the first presidential candidate announced his 2016 run 596 days before election day[9]), formal campaigning only occurs for five weeks before the vote,[10] which is held in two rounds, on April 23 and May 7.  French law used to give each candidate equal airtime, but starting in April 2016, during the period between publication of the list of candidates and the start of official campaigning, candidates’ on-air minutes are determined by their score in the last election and poll ratings.[11]  Once official campaigning begins, everyone gets completely equal TV and radio airtime.[12]

During the first “official” campaign period, French election laws limited a candidate to €16.8 million ($19,841,640).[13]  Those who made it to the second round each had an extra €5 million ($5,905,250), for a combined total of €22 million ($25,983,100) per finalist.[14]  Furthermore, after the election, the government reimburses candidates who won at least 5% of the votes (for) 47.5% of certain specific campaign costs.[15]  Those who do not reach the 5% threshold get 4.75% of their money back.[16]

There are no limits to candidates’ spending in primary campaigns, which are private affairs organized by the political parties.[17]  However, spending on the primary counts toward the overall limit, so the winner of a party’s primary must be careful not to spend too much in the primary in order to have enough money left for the general election.[18]

Candidates in the most recent election had even stronger incentives to comply with the election laws due to increased scrutiny of spending after the 2012 election.[19]  Additionally, the National Commission for Campaign Accounts and Political Financing (Commission Nationale des Comptes de Campagne et des Financements Politiques, or CNCCFP) reviews candidates’ spending and publishes a report after elections.[20]  If a candidate surpasses the spending ceiling, the CNCCFP determines an amount that the candidate must pay to the Public Treasury.[21]  The candidate might also be fined or imprisoned for up to a year for not following certain other provisions.[22]  The French Constitutional Court could even declare the election invalid if there was significant enough fraud.[23]

Perhaps the biggest difference between French and American election laws is that while political parties and movements can finance candidates in France, corporations, unions, and special interests cannot, nor can they donate to political parties.[24]  The goal of this, and of reimbursing candidates for some costs, is to keep corporate and other donors from gaining unfair political influence, and to level the playing field among the candidates.[25]

Individual donors may give €7,500 maximum per year to a political party,[26] and up to €4,600 to a presidential campaign.[27]  In contrast, top individual donations to the Clinton and Trump campaigns and super PACs exceeded $20 million.[28]

One argument against strict campaign finance laws is that politicians will always find loopholes to exploit.[29]  For example, “[s]ince donations can be made only to political parties, candidates have created ad-hoc organizations legally registered as parties in order to raise money from supporters.”[30]  Candidates might also borrow money from banks, companies, or private parties.[31]

The issue of campaign financing also extends to non-monetary support.[32]  For example, companies can provide candidates with staff at no cost.[33]  Such practices are not allowed but are difficult to monitor.[34]

Just because candidates find ways around the laws does not mean the laws are unnecessary.  One benefit of France’s campaign finance laws is that limits on contributions may make donors more thoughtful in picking parties or candidates to whom to donate.[35]  Additionally, the political culture may be less polarized when the two finalists emerge.[36]  In contrast, the flood of money from wealthy ideological donors and activists worsens political polarization by pulling American candidates to extreme positions, while parties favor moderate candidates.[37]

Another argument against strict campaign finance laws is that while money can corrupt politicians, “cash-strapped political campaigns fare even worse and fuel voter cynicism.”[38]  Marine Le Pen’s National Front party (Front National, or FN, in French) is being investigated for possible violations of rules on party financing.[39]  And when Nicolas Sarkozy’s 2012 reelection campaign hit the spending ceiling imposed by the country’s election laws, his party pressured a communications agency to produce fake invoices to conceal the campaign’s over-spending.[40]  One writer suggests this could never occur in the U.S.,[41] where restricting campaign financing infringes upon free speech.

Political corruption, including Le Pen and the FN’s alleged violations of campaign finance laws, has indeed made French voters more cynical.[42]  This may explain 2017’s lower-than-usual turnout.  French parliamentary elections saw record low turnout,[43] and turnout in the presidential election was lower than in the past three presidential elections.[44]  This suggested many voters remained angry or disaffected.[45]  Nearly a quarter of voters abstained (the most abstentions since 1969[46]) to avoid having to choose between two candidates they did not like.[47]  And 9 or 10% of votes cast were blank ballots (a form of protest vote).[48]

However, the U.S., with its more lenient regulations, also has cynical voters, if voter turnout is any indication.  As it is, U.S. voter turnout is notoriously lower than in other developed democracies.[49]  But voter turnout in the 2016 presidential election hit a 20-year low.[50]  And while turnout is lower in midterms and primaries anyway,[51] in 2014 it reached a 72-year low.[52]

Possible reasons for low turnout include restrictive voting laws, gerrymandered districts, and voters’ dissatisfaction with the contentious nature of politics.[53]  And since 2010’s Citizens United, outside groups’ election spending has increased but voter turnout has fallen.[54]  Voters on both sides of the political aisle agree that increased spending has a greater, and mostly negative, effect on politics.[55]  Furthermore, the rising amounts spent on campaigns are amplifying the feeling among “average” Americans that they are being marginalized politically and economically.[56]

From elected officials’ standpoint, they face tremendous pressure to keep up with the rising costs of elections.  In Congress, 25-50% of politicians’ time is spent fundraising (or two-thirds of their time in the two years before an election).[57]  One representative was even pulled out of her first committee hearing and told she had to get on the phone with donors.[58]

This reality affects representatives’ ability to actually legislate.  For example, according to the Democratic Congressional Campaign Committee in 2013, a member’s day ideally was to consist of four hours calling donors, two hours in committee or on the Senate or House floor, one or two hours with constituents, one hour doing “strategic outreach,” and one hour of “recharge time.”[59]  Moreover, when the largest block of time goes toward calling wealthy donors, those donors’ concerns may become higher priorities than constituents’ concerns.[60]

Too great a focus on money ignores the indirect ways politicians can be influenced.[61]  However, money does buy access.  Stricter campaign finance laws, like France’s, could benefit the U.S. by lessening donors’ influence.  It would also start to address citizens’ feelings of marginalization, and hopefully increase civic engagement.

[1] Trump boasts fundraising might for GOP: ‘I’m working hard for them’, Fox News (Oct. 7, 2017), http://www.foxnews.com/politics/2017/10/07/trump-boasts-fundraising-might-for-gop-im-working-hard-for-them.html.

[2] Alex Seitz-Wald, House Democrats Break Campaign Fundraising Record, NBC News (Sept. 18, 2017, 5:57 AM), https://www.nbcnews.com/politics/elections/house-democrats-break-campaign-fundraising-record-n802171; Sally Persons, House Democrats beat Republican counterparts in August fundraising, The Washington Times (Sept. 21, 2017), http://www.washingtontimes.com/news/2017/sep/21/house-democrats-beat-republican-counterparts-in-au/.

[3] Carl Hulse, Behind New Obamacare Repeal Vote: ‘Furious’ G.O.P. Donors, N.Y. Times (Sept. 22, 2017), https://www.nytimes.com/2017/09/22/us/politics/republican-donors-obamacare-repeal.html; Alex Isenstadt & Gabriel Debenedetti, Angry GOP donors close their wallets, POLITICO (Oct. 5, 2017, 5:02 AM), http://www.politico.com/story/2017/10/05/republican-donors-trump-mcconnell-anger-243449.

[4] Kenneth P. Vogel & Rachel Shorey, Long List of Top Democrats Have 2020, and Money, on Their Minds, N.Y. Times (Sept. 2, 2017), https://www.nytimes.com/2017/09/02/us/politics/democrats-president-2020.html.

[5] Bill Allison, Mira Rojanasakul, Brittany Harris, & Cedric Sam, Tracking the 2016 Presidential Money Race, Bloomberg (Dec. 9, 2016), https://www.bloomberg.com/politics/graphics/2016-presidential-campaign-fundraising/.

[6] Id.

[7] Jonathan Berr, Election 2016’s price tag: $6.8 billion, CBS News (Nov. 8, 2016, 5:56 PM), http://www.cbsnews.com/news/election-2016s-price-tag-6-8-billion/.

[8] Id.; Allison, Rojanasakul, Harris, & Sam, supra note 5.

[9] Danielle Kurtzleben, Canada Reminds Us That American Elections Are Much Longer, NPR (Oct. 21, 2015, 10:16 AM), http://www.npr.org/sections/itsallpolitics/2015/10/21/450238156/canadas-11-week-campaign-reminds-us-that-american-elections-are-much-longer.

[10] Rose Trigg, The need-to-know rules of the French presidential election, The Local (Mar. 9, 2017, 12:30 PM), https://www.thelocal.fr/20170309/rules-of-the-game-what-rules-does-the-french-election-have-to-follow.

[11] Id.

[12] Id.

[13] Id.; Andreas Becker, French elections: Who finances the candidates?, DW (May 5, 2017), http://www.dw.com/en/french-elections-who-finances-the-candidates/a-38704682.

[14] Becker, supra note 13.

[15] Id.; Trigg, supra note 10.

[16] Trigg, supra note 10.

[17] Pierre Briançon, French foreign fundraising legion: Presidential candidates schmooze expats in search of campaign funds, POLITICO (Nov. 13, 2016, 7:56 AM), http://www.politico.eu/article/the-french-foreign-fundraising-legion-presidential-election-2017/.

[18] Id.

[19] Id.

[20] Id.

[21] Campaign Finance: France, Library of Congress, https://www.loc.gov/law/help/campaign-finance/france.php (last updated July 1, 2015).

[22] See id.

[23] Briançon, supra note 17.

[24] Id.; Becker, supra note 13; Bruce Crumley, France’s Stringent Election Laws: Lessons for the America’s Free-for-All Campaigns, Time (Apr. 20, 2012), http://world.time.com/2012/04/20/frances-stringent-election-laws-lessons-for-the-americas-free-for-all-campaigns/.

[25] Becker, supra note 13; Trigg, supra note 10.

[26] Becker, supra note 13.

[27] Id.; Paul Chambres, What Campaign Finance Regulations in France Have to Teach the US, TheBlaze (May 29, 2014, 11:00 AM), http://www.theblaze.com/contributions/what-campaign-finance-regulations-in-france-have-to-teach-the-us-2/.

[28] Becker, supra note 13; Allison, Rojanasakul, Harris, & Sam, supra note 5.

[29] Chambres, supra note 27.

[30] Briançon, supra note 17.

[31] Becker, supra note 13.

[32] Id.

[33] Id.

[34] Id.

[35] Briançon, supra note 17.

[36] How France’s Presidential Contest Compares to U.S., NPR (Apr. 17, 2012, 1:00 PM), http://www.npr.org/2012/04/17/150817062/frances-presidential-contest-like-americas-but-different.

[37] Raymond J. La Raja & Brian F. Schaffner, Campaign finance laws may be making political polarization worse by encouraging ‘purist’ donors, USAPP (Dec. 3, 2015), http://blogs.lse.ac.uk/usappblog/2015/12/03/campaign-finance-laws-may-be-making-political-polarization-worse-by-encouraging-purist-donors/.

[38] Chambres, supra note 27.

[39] Becker, supra note 13; Leonid Bershidsky, Think the U.S. Election Was Dirty? Look at France, Bloomberg (Feb. 10, 2017, 9:30 AM), https://www.bloomberg.com/view/articles/2017-02-10/think-the-u-s-election-was-dirty-look-at-france.

[40] France’s UMP ‘ordered €10m fake invoices’ to hide Sarkozy campaign spending, France 24 (May 26, 2014), http://www.france24.com/en/20140526-bygmalion-france-ump-ordered-fake-invoices-cover-campaign-spending-cope-sarkozy/; Chambres, supra note 27.

[41] Chambres, supra note 27.

[42] Emma Jane Kirby, France election: North-east voters are in cynical mood, BBC News (Mar. 21, 2017), http://www.bbc.com/news/world-europe-39284234; Bershidsky, supra note 39; Helene Fouquet & Mark Deen, Macron’s Existential Challenge to France: Drop the Cynicism, Bloomberg (July 3, 2017, 1:07 PM), https://www.bloomberg.com/news/articles/2017-07-03/macron-courts-french-doubters-with-vision-of-new-enlightenment.

[43] Will Worley, French election turnout worst in modern history as Emmanuel Macron heads for landslike victory in parliament: President set to win mandate for pro-business reforms, but celebrations dampened by voter apathy, The Independent (June 12, 2017, 9:30 AM), http://www.independent.co.uk/news/world/europe/french-election-turnout-emmanuel-macron-parliament-france-victory-fn-marine-le-pen-national-front-a7785366.html; Nicholas Vinocur, Kim Jong Macron? The case for a fairer French parliament: A more proportional voting system is one solution to low turnout and immature politics, POLITICO (June 13, 2017, 4:02 AM), http://www.politico.eu/article/kim-jong-macron-case-for-a-fairer-french-parliament-disproportionate-hegemony/; Pierre Briançon, 4 takeaways from the French parliamentary election: No Soviet-style majority for Macron  -  and other lessons from new president’s latest victory, POLITICO (June 19, 2017, 11:10 AM), http://www.politico.eu/article/4-takeaways-from-the-french-parliamentary-election/ (proposing possible explanations for the low turnout, including election fatigue after a year of nonstop campaigning, disenchantment from both left-wing and conservative voters, sheer indifference to Macron’s attempt to overhaul the French political system, and even the weather).

[44] Highlights of the French Presidential Vote, N.Y. Times (May 7, 2017), https://www.nytimes.com/2017/05/07/world/europe/france-president-elections-le-pen-macron.html.

[45] Id.; Eliza Mackintosh & Judith Vonberg, A record number of French voters cast their ballots for nobody, CNN (May 8, 2017, 11:00 AM), http://www.cnn.com/2017/05/08/europe/french-voters-spoiled-ballots-abstained/index.html.  There was even a campaign among citizens urging voters to stay at home, leave their ballots empty, or submit a blank piece of paper in protest.  One campaign called on the people to reject both candidates, and not legitimize an anti-democratic election system.  Id.

[46] Mackintosh & Vonberg, supra note 45.

[47] N.Y. Times, supra note 44.

[48] Mackintosh & Vonberg, supra note 45; N.Y. Times, supra note 44.

[49] Drew DeSilver, U.S. trails most developed countries in voter turnout: By international standards, U.S. voter turnout is low, Pew Research Center (May 15, 2017), http://www.pewresearch.org/fact-tank/2017/05/15/u-s-voter-turnout-trails-most-developed-countries/.

[50] Gregory Wallace, Voter turnout at 20-year low in 2016, CNN, http://www.cnn.com/2016/11/11/politics/popular-vote-turnout-2016/index.html (last updated Nov. 30, 2016, 10:48 AM).

[51] Drew DeSilver, Voter turnout always drops off for midterm elections, but why?, Pew Research Center (July 24, 2015), http://www.pewresearch.org/fact-tank/2014/07/24/voter-turnout-always-drops-off-for-midterm-elections-but-why/; Michael D. Regan, Why is voter turnout so low in the U.S.?, PBS (Nov. 6, 2016, 12:40 PM), http://www.pbs.org/newshour/updates/voter-turnout-united-states/.

[52] Charlotte Alter, Voter Turnout in Midterm Elections Hits 72-Year Low, Time (Nov. 10, 2014), http://time.com/3576090/midterm-elections-turnout-world-war-two/.

[53] Regan, supra note 51.

[54] Drew DeSilver & Patrick van Kessel, As more money flows into campaigns, Americans worry about its influence, Pew Research Center (Dec. 7, 2015), http://www.pewresearch.org/fact-tank/2015/12/07/as-more-money-flows-into-campaigns-americans-worry-about-its-influence/.

[55] Id.

[56] Celestine Bohlen, American Democracy Is Drowning in Money, N.Y. Times (Sept. 20, 2017), https://www.nytimes.com/2017/09/20/opinion/democracy-drowning-cash.html.

[57] Ryan Bort, John Oliver Breaks Down the Disturbing Truth of Congressional Fundraising, Newsweek (Apr. 4, 2016, 11:16 AM), http://www.newsweek.com/john-oliver-last-week-tonight-congressional-fundraising-443675.  Of course, House members’ terms are only two years to begin with.

[58] Lindsay Mark Lewis & Jim Arkedis, So You’ve Won a Seat in Congress  -  Now What?: A simple guide for how new members can find success (Hint: Fundraising, fundraising, and fundraising), The Atlantic (Nov. 6, 2014), https://www.theatlantic.com/politics/archive/2014/11/so-youve-won-election-to-congressnow-what/382421/.

[59] Ryan Grim & Sabrina Siddiqui, Call Time for Congress Shows How Fundraising Dominates Bleak Work Life, Huffington Post (Jan. 8, 2013, 7:30 AM), https://www.huffingtonpost.com/2013/01/08/call-time-congressional-fundraising_n_2427291.html.  The former head of the Democratic Congressional Campaign Committee was himself driven to retirement partly because he could no longer tolerate the fundraising routine.  See Bort, supra note 57; Steve Israel, Steve Israel: Confessions of a Congressman, N.Y. Times (Jan. 8, 2016), https://www.nytimes.com/2016/01/09/opinion/steve-israel-confessions-of-a-congressman.html.

[60] Bort, supra note 57.

[61] Bohlen, supra note 56.