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Current Issue : Spring 2009


A recent online symposium carried the following ominous title: "Has the American Campaign Finance System Collapsed?" The title does not seem too wide of the mark. It is surely extraordinary that after all the years that courts, legislatures, politicians, think tanks, and academics have been addressing the issue of campaign finance, we have arrived at such a place. At the same time, it is remarkable that so much effort should be poured into restricting the means by which citizens in a democracy are informed or inform others about their government and the doings of their representatives, especially in light of the commands of the First Amendment. It is ironic that close scrutiny is given to laws regulating pornography, yet members of Congress are permitted, without serious outcry from large portions of the public or press, to make laws that protect their own positions by restricting the amount of funding available to their challengers and the amount of information available to voters. If the First Amendment has only one purpose, surely it is to protect the right of the public to have the greatest possible influence on the electoral process. But somehow, things have gotten twisted around, so that sensible people spend their time trying to help Congress impose restrictions on political speech.

The central reason for this outcome is a focus on the wrong issue. Our current system of campaign finance regulation aims at reducing or eliminating the influence of private interests in elections by reducing the amount of money that flows into political campaigns. However, in a democratic system, the focus should be on encouraging competitive elections, with the elimination of money influence an important but secondary consideration. This is especially true given that years of scholarly inquiry into the relationship between campaign contributions and voting have not been able to show that lawmakers are being corrupted or subjected to undue influence. Despite the media's insistent and self-interested view that elected officials favor the interests of their contributors, academic studies have repeatedly shown that money follows policy and not the other way around. We should refocus campaign finance reform on the question of increasing the competitiveness of elections, particularly by reducing the advantages of incumbency.

Instead, our current campaign finance system is a mixed and incoherent hodgepodge of restrictions and exemptions. Contributions can be limited, but expenditures cannot—especially when they are made by individuals and groups acting completely independently of candidates and political parties. Candidates can contribute as much as they want to their own campaigns, but the political parties that nominated them are severely limited in what they can either contribute or expend on behalf of their candidates. Candidates and parties live with extensive controls, as do some independent groups, while other powerful actors are completely immune from regulation. Surely, we can come up with a way out of this wilderness.

One promising solution would be a more party-oriented campaign finance system which would serve a number of important purposes, including a more competitive electoral system, greater accountability of parties and candidates, the attenuation of concerns about undue influence or corruption, and more coherence to our frighteningly complex campaign finance laws. The efforts by Congress to use the campaign finance laws to create obstacles for challengers, and the actions of the Supreme Court in striking down most—but not all— of these self-serving attempts have left us with a mare's nest of restrictions, exclusions, exemptions, and allowances that is both a trap for the unwary and an unmanageably complex, incumbent-protective legal regime that accomplishes none of its stated purposes. Congress would do well to consider whether it does not owe the American people a more honest system for financing political campaigns in what is still the greatest democracy in the world.

The simple irrationality of the current system makes the point. Since the enactment of the BCRA, our national political parties must carry on all their activities with hard money. This means that the money a political party committee raises is limited in amount, must be fully disclosed (above the most modest threshold of $200), comes only from individuals (not corporations, unions, foundations, or other similar entities), and comes in amounts and under conditions prescribed by Congress or approved by the Federal Election Commission.

Restrictions on political parties put them at a distinct disadvantage compared to other powerful players in the political system that do not have to play by those same restrictive rules.