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Current Issue : Spring 2009

Money, Speech and Politics: A New Solution to an Old Problem

A famous California politician, Jesse Unruh, once observed that "money is the mother's milk of politics." For more than a century, the Congress has tried to legislate against this political law of nature, and the results have not been pretty. Perhaps not surprisingly, however, the laws have favored those who wrote them. For the campaign finance system in the United States is unusual in one major respect: it is candidate-centered. The candidates themselves, rather than the political parties, must raise the necessary funds to run a campaign. The political parties, which choose the candidates—or at least run the process under which their candidates are selected—are severely restricted in their ability to finance their candidates' campaigns.

As a system purportedly designed to reduce corruption and undue influence —and upheld against First Amendment challenges on this basis—a candidate-centered fundraising system seems, to say the least, rather odd. Among other things, it places the candidates and officeholders who need campaign funds in exactly the position they should not be occupying—as supplicants, seeking financial support from those who are trying to influence them.

As one might expect, there was a reason for structuring the campaign finance system in this peculiar and contradictory way: it is highly favorable to the incumbents who designed it. But it also has a number of other deficiencies: it favors wealthy candidates who can finance their own campaigns; it piles up campaign funds in the coffers of powerful officeholders where these funds are not needed; it discourages qualified people from running for office; it absorbs an extraordinary amount of the time and attention of officeholders, who should be spending most of their energy on the responsibilities of their offices; it increases the costs of campaigns by increasing the role of expensive consultants and other campaign specialists; it deprives voters of useful information; and it multiplies the power of special interests at the expense of a broader national interest. Most of all, it weakens the political parties, which alone have the ability both to develop popular support for a course of action and implement it with legislation.

Most of the campaign "reform" efforts that have characterized the last four decades have, in fact, made things worse, particularly for challengers; only the Supreme Court's invalidation of the most egregious pro-incumbent elements of the so-called reforms has preserved for challengers some limited opportunities. Still, the restrictions that are left—on the size of contributions and, most important, on the ability of parties to fund the campaigns of their candidates—remain as substantial obstacles for those who seek to defeat incumbent members of the House and Senate. Finally, even if the political parties were given the authority they need to contribute to and otherwise support their candidates, they are still compelled to defend themselves and their candidates with "hard money" (funds collected under contribution limits as to source and amount), while many of the outside groups that oppose them are able to raise and expend funds without any restriction, and in most cases without any disclosure.

It may come as a surprise to most supporters of campaign finance reform that Congress has been helping itself all these years—rather than trying seriously to clean up the system—but that is the unavoidable conclusion one must draw from a review of modern campaign finance laws enacted by Congress and consisting largely of efforts to dress up incumbent protection to look like something more praiseworthy. But the evidence of lawmakers' real purpose is powerful, and it is clear that putting Congress in charge of campaign finance is like letting the home team pick the referee and write the rules.

Rather than a system that maximizes competition and encourages political accountability, our campaign finance regime is a complex tangle of laws, rules, regulations, exceptions, exemptions, and safe harbors—a veritable labyrinth of federal statutes and regulations spanning 165 pages of the United States Code Annotated and over 300 pages of implementing regulations, and augmented by literally thousands of rulings and interpretations by the Federal Election Commission. It is difficult to believe that such a system could be consistent with the simple language of the Constitution's First Amendment: "Congress shall make no law… abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." What could the framers have had in mind with this language, other than a guarantee of freedom to speak in the context of democratic elections?

Most of the campaign "reform" efforts that have characterized the last four decades have, in fact, made things worse, particularly for challengers.