Campaign Finance Reform: Look Before You Leap

As the campaign finance bill winds its way through the legislative process, and seems now at the verge of victory, Senators and the President have one last chance to look before they leap. Supporters of the Shays-Meehan bill had best hope that they don’t look too closely. There are at least three major reasons that the people’s elected representatives should take advantage of this one last opportunity to demur.

1.) At least one portion of the campaign finance bill is unconstitutional on its face. That portion would ban issue advertising by groups that mention a candidate’s name 60 days prior to a general election or 30 days prior to a primary election. As a blatant violation of the First Amendment’s free speech and free press clauses, this provision must rank with the Alien and Sedition Acts of the 1790s as an example of politicians scuttling the Constitution in favor of protecting themselves from public criticism.

This in itself should, in a well-functioning constitutional republic, be enough to defeat the measure. After all, every member of Congress—as well as the President himself—swears a solemn oath to &quot:preserve, protect, and defend the Constitution of the United States.&quot: Since the onset of the New Deal, however, elected officials have increasingly adopted the view that they should enact laws that they consider useful policy regardless of constitutional propriety, leaving to the courts the duty of enforcing the Constitution. Such an approach has both demeaned the constitutional dignity of the elected branches and had the effect of ballooning out of all proper proportion the power of the judiciary. Reversing this &quot:de-constitutionalization”: of public policy discourse in the elected branches will be an arduous task carried out over many years, but saying &quot:no”: to the Shays-Meehan bill on the obvious constitutional grounds would be a good a place to start.

2.) Because the limits on independent advertising by groups is unlikely to survive judicial scrutiny, while the banning of soft money to the political parties is much more likely to survive, the effect of this bill’s passage on campaigns in America is likely to differ radically from the expectations of its supporters. To be precise, the balance between interest groups and parties will probably be shifted significantly in favor of interest groups and against the parties. Instead of contributing to parties, which serve an integrative function in American politics, interest groups will simply spend the money on their own. This outcome will be paradoxical indeed, not to mention unwelcome, given that the stated goal of the reformers is to reduce the clout of organized interests. This likely effect highlights a broader cause for caution, namely that any reform of this type will almost certainly produce a variety of unintended consequences, many of them potentially destructive. If any doubts remain on that score, one only has to refer to the last major campaign finance overhaul in 1974. By setting individual contribution limits too low, the law forced candidates and officeholders to spend an inordinate amount of time fundraising instead of legislating or campaigning at the grassroots. By limiting the resources available to long-shot candidates, it also contributed to early decisions in presidential nominating contests, which itself contributed to the almost universally-despised phenomenon of presidential primary &quot:front-loading.”:

3.) Because of the law of unintended consequences, neither supporters nor opponents of the bill can really know what will happen if it is passed. Widely publicized fears by high-ranking Republicans that passage will make them the permanent minority in Congress are almost certainly overblown, as are the expectations of reformers that the bill will reduce the importance of money in politics.

Indeed, if there is one prediction that can be made, it is that money in some form will always find a way into the electoral system. Campaigns cost money; good campaigns cost a lot of money. Americans, either singly or in organized groups, will always seek to affect the outcome of elections for reasons of principle or interest. To try to stop this process from reaching its logical endpoint—that Americans will seek to affect electoral outcomes by providing the money that good campaigns cost—is to try to make water run uphill. This is all the more true given the stakes involved in modern American elections. The federal government alone confiscates roughly $2 trillion in property every year through a variety of taxes, spends that $2 trillion on literally hundreds of programs, and publishes a Federal Register of regulations that totals some 70,000 pages. The idea that the millions of people who are seriously affected by this activity, and whose very livelihoods are often at issue, can be discouraged from financial involvement in political campaigns is both wrong-headed and delusional.

Does this mean that big monied interests opposed to the national interest never intervene in politics improperly, or that we should never be concerned about attempts to buy access through very large contributions? Of course not. Sometimes these tactics succeed (like Loral Corporation, which got its license to sell dual-use satellite technology to China in the mid-1990s); sometimes they fail (Enron’s millions apparently bought it a &quot:too bad&quot: from the Bush administration); and often they cancel each other out. Rather, the point is that if one wishes to get money out of politics, one must first get the government out of money. Anything else—including the current reform effort—might succeed in rearranging the flow of campaign money, but will never achieve its real objective. Having made symbolism king, it will instead invite evasion by contributors, questionable innovations by parties and campaigns, and greater cynicism by the public.

In short, the Senate faces a bill that is at least partially unconstitutional, that will almost certainly not attain its objectives, and that may well produce a variety of unforeseen and unwanted consequences. Of course, that hardly makes it unique in the annals of modern American legislation, which is rife with laws that fit that description. On the other hand, Americans might still harbor the hope that their representatives can do better.

Andrew E. Busch is an Adjunct Fellow of the John M. Ashbrook Center for Public Affairs and an Associate Professor of Political Science at the University of Denver, where he specializes in American government and politics. Dr. Busch is the author of Ronald Reagan and the Politics of Freedom. He is also the co-author of The Perfect Tie: The True Story of the 2000 Presidential Election.