Pity the Poor Incumbent

Has the Supreme Court opened the way for true campaign finance reform?

Members of Congress don't like being criticized, especially close to an election. They also don't like facing challengers who can pay for their own campaigns.

In 2002 Congress passed a law that addressed both of these problems. It was called the Bipartisan Campaign Reform Act (BCRA), because "Bipartisan Incumbent Protection Act" would have been too revealing.

Last summer and last month, in decisions almost exactly a year apart, the U.S. Supreme Court ruled that BCRA's restrictions on issue ads and its attempt to erase rich candidates' fund raising advantage violate the First Amendment. These cases highlight the need for true campaign reform: deregulation of election-related speech. Yet both major-party presidential candidates want to move in the opposite direction, imposing new restrictions on Americans' ability to put their money where their mouths are.

Last year's case dealt with BCRA's ban on "electioneering communications," interest group ads that mention candidates for federal office within 30 days of a primary or 60 days of a general election. The Court concluded that the ban, when applied to messages that are neither "express advocacy" (explicitly calling for a candidate's election or defeat) nor its "functional equivalent," infringes upon the constitutional right to freedom of speech.

In last month's case, the Court overturned a BCRA provision that triples the individual contribution limit and eliminates the cap on coordinated party expenditures for candidates opposed by wealthy people financing their own campaigns. "The unprecedented step of imposing different...limits on candidates vying for the same seat is antithetical to the First Amendment," Justice Samuel Alito wrote for the five-member majority.

Alito rejected the government's claim that such an asymmetrical arrangement is necessary to "level electoral opportunities," saying that argument "has ominous implications." He noted that "different candidates have different strengths": Some are wealthy, while others have wealthy supporters; some are celebrities, while others come from famous families. (He might also have noted that some are taller, better-looking, and better-spoken than others.) It's up to voters to weigh these advantages, Alito said, warning that "it is a dangerous business for Congress to use the election laws to influence the voters' choices."

One candidate strength Alito was too tactful to mention is incumbency, which confers name recognition, free publicity, and the power to dispense favors, which in turn attracts campaign contributions. Those advantages seem to make a big difference: Since 1980 the re-election rate for House members has ranged from 88 percent to 98 percent.

Combine the enormous advantages of incumbency with the campaign contribution limits Congress imposed in 1974, and you start to see why rich guys are tempted to run for office. The Supreme Court has said they have a First Amendment right to finance their own campaigns but not to finance other people's campaigns.

Most of the current Court is skeptical of that distinction, but at least four justices seem inclined to eliminate it by allowing restrictions on expenditures as well as contributions. The next Supreme Court appointment could make a crucial difference for the freedom of Americans to engage in political speech, directly or by proxy, without fear of being fined or going to prison.

Unfortunately, John McCain and Barack Obama both seem to think the main problem with campaign finance restrictions is that there aren't enough of them. McCain spearheaded BCRA and made campaign reform the signature issue of his 2000 presidential campaign. Both McCain and Obama worry that money plays too big a role in political campaigns, and both have decried the influence of ads sponsored by the independent groups that have proliferated because of BCRA's restrictions.

Then again, McCain has been criticized for excessive coziness with lobbyists, while Obama's credibility on this issue took a big hit when he decided to decline taxpayer funding for his general election campaign so he could avoid spending limits. I'm not sure who the bigger faker is, but he could turn out to be a smaller menace to freedom of speech.

© Copyright 2008 by Creators Syndicate Inc.

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  • ||

    The first amendment prohibits campaign finance regulation, period. Anyone who says otherwise is illiterate. I can't tell you how fucking depressing it is to have so many illiterates on the SCOTUS

  • Naga Sadow||

    Bah! Bah, I say! The candidates shall go wanting!!!

    *waves hand in air in dismissive gesture*

  • McH2O||

    But your Honor, the people agree with the new guy more than me! That's not fair, you can't let him talk about that!

  • ||

    Unfortunately, John McCain and Barack Obama both seem to think the main problem with campaign finance restrictions is that there aren't enough of them.

    We just need more biggerer and betterest restrictions on speech to "level the playing field". Politicians professing crap like that are just spouting self serving bullshit lies.

  • classwarrior||

    Money is not speech! It provides for the amplification of speech that can drown out other voices. And large political contributions are usually thinly described bribes in advance that will ensure favourable treatment by the recipient. There is no way you'll get to a level "free market" as long as politicians can be bought in the name of "free speech".

  • Robert||

    The only way to have both free speech and controls on elections (to keep them fair and "clean") simultaneously is to isolate the conduct of elections from the rest of the world, the way grand and petit jury deliberations are. If we could hold our elections, from campaign to actual balloting, in a closed jury room, then we could have controlled procedures in there without restrictions on political speech outside of them.

  • stuartl||

    There is no way you'll get to a level "free market" as long as politicians can be bought in the name of "free speech".

    Can you explain what a level free market is? There are always advantages, that is what makes markets work.

  • squarooticus||

    classwarrior: the problem with people buying government favors isn't too much money; the problem is too much government.

  • ||

    classwarrior-

    So anything that's not *literally* speech doesn't count under the first amendment? Web sites, books, any writing that isn't 'the press'...etc etc. And woe to all! Someone might contribute money to get the politician who will do what they want in office! So I guess its ok to cast a vote for someone in the hope they will do what you want, but its not ok to give them money to help them get more votes so they will do what you want. Got it.

    Also, what isn't clear about "Congress shall make no law..."? How could that possibly mean "Congress can make some laws, if SCOTUS says its ok based on how they are feeling that day". They should either amend the document or obey it, this is just insanity

  • stuartl||

    If we could hold our elections, from campaign to actual balloting, in a closed jury room, then we could have controlled procedures in there without restrictions on political speech outside of them.

    Yeah, let's not pollute our important political decisions with dangerous stuff like information.

  • ||

    Do we really need to get into a textualist discussion every freakin' time? sheesh...

  • classwarrior||

    For anyone who disagrees with my assessment, please define for us the difference between a large political contribution given with a nod and a wink, and bribery. If there is no real difference, explain why bribery should be illegal and campaign contributions completely unregulated. I'd love to hear the "reasoning" behind your answer!

  • Wyll D Sarge||

    Sometimes I wonder if it wouldn't just be better to have a random drawing every two years to fill the seats in the House and Senate. No election, just lottery. I know it's wild and I know it's scary, but it removes influence and it potentially rids us of the two-party system which I think is sometimes the biggest problem in this country.
    In theory, all you really need in congress members is an opinion expressed as "yea" or "nay." Having compassion and interest in helping people would be nice, but I'm not sure we have a majority of those qualities in our legislative branch now.

  • stuartl||

    MP, if you are talking to me, my point is the general one that any kind of restriction is bad. As soon as you come up with clever ideas restricting campaigns you are asking for problems. I do not mind requiring transparency in all donations however.

    Classwarrior, as long as there is transparency why shouldn't anyone be allowed to push as hard as they want for their own beliefs? Let the people vote the bums out if they are corrupt.

  • ||

    Sometimes I wonder if it wouldn't just be better to have a random drawing every two years to fill the seats in the House and Senate. No election, just lottery. I know it's wild and I know it's scary, but it removes influence and it potentially rids us of the two-party system which I think is sometimes the biggest problem in this country.

    Actually, that's how the Ancient Greeks did it. They felt that elections gave an unfair advantage to the upper class and a system based on such should more properly be classified as a form of oligarchy rather than democracy.

  • stuartl||

    classwarrior,

    Sorry, I left out the answer to your question. Bribery is done under the table, in secret. Contributions should be made in public, visible to the voter.

  • squarooticus||

    If there is no real difference, explain why bribery should be illegal and campaign contributions completely unregulated.



    This is the wrong question. First of all, you can't draw a line clearly: when does doing a favor for someone cross over into paying for undue influence? Secondly (and more importantly), how do you stop this "undue influence" (including money) without stepping on the natural rights of people to band together in a common cause, including using their natural right of free speech to proselytize that point of view?

    Case in point: my right to pool my money with other members of the NRA to do whatever it takes (short of violent coercion) to keep those fucktards in Congress from violating my RKBA is a natural right, the core of which is freedom of association. Any attempt to restrict that is illegal (again, in the natural law sense), no matter what the SCOTUS says.

    The right question is: explain why we have to care whether people are giving money to politicians in the first place. They shouldn't have enough power over our everyday lives for us to care.

  • Episiarch||

    classwarrior, please explain to us why giving money to a politician is bribery but ordering your union members to all vote for a particular politician isn't.

    As was stated multiple times, politicians have too much power, and no matter what restrictions you put in place, those who wish to influence the politicians will find a way.

    The only solution is to reduce the power of the politicians to the point where it's not worth it to bribe them (with money, votes, whatever).

  • hotsauce||

    For anyone who disagrees with my assessment, please define for us the difference between a large political contribution given with a nod and a wink, and bribery. If there is no real difference, explain why bribery should be illegal and campaign contributions completely unregulated. I'd love to hear the "reasoning" behind your answer!



    Red herring. The solution, IMO, is to reduce and eventually eliminate politicians' influence. Then the difference between outright bribery and a donation/wink becomes moot.

  • kinnath||

    For anyone who disagrees with my assessment, please define for us the difference between a large political contribution given with a nod and a wink, and bribery.

    I can't remember the legislator's name, but there was a black woman in Arizona's legislature when I moved away in 1992 that was caught in a "bribery" sting. The police established a phoney PAC to promote gambling in AZ. About half a dozen or so legislators were caught on tape accepting bundles of cash in return from promising to support legalizing gambling in AZ. Everyone but the black woman pled out to bribery charges.

    The woman, on the other hand, went to trial and argued that AZ law required the person receiving the "bribe" to change their position. Since she was on the record as supporting legalized gambling before the sting operation she could not in fact have broken the law. She was acquitted.

  • Feminazi||

    For anyone who disagrees with my assessment, please define for us the difference between a large political contribution given with a nod and a wink, and bribery.

    Good thinking classwarrior. Same state of mind as when saying "all sex within marriage is rape".

  • Paul||

    Money is not speech!

    Wait! But there's a problem. Campaign Finance Reform laws have declared speech to be money.

    That's right. Depending on who you are, and when you speak, your speech is seen as having "value" and therefore can be defined as an in-kind campaign contribution.

    This stupid-assed argument about how money isn't speech ignores the implications of the law in its entirety.

    I remember liberals screaming like a goddamned stuck pig when conservatives made the same argument about sex acts on stage back in the eighties. A sex act wasn't speech, conservatives scolded. Liberals (rightly so) argued that not recognizing these things as 'speech' could and would have a chilling effect on what was arguably the most important speech of all: political speech.

    It's time for liberals to get their asses back on the goddamned line and start protecting the flanks. Frankly, they've turned out to be lousy footsoldiers in the fight for civil rights.

  • ||

    classwarrior puts the cart before the horse. Bribery is illegal because it buys legislation and policy. Campaign contributions, however, merely buy a politician's time. Like another old profession, politics lets you keep what you sell. If you cross me on a bribe, I can sink you without batting an eye. Cross me on a campaign contribution, and I'm SOL. Sunshine remains the best disinfectant.

  • Robert||

    If we could hold our elections, from campaign to actual balloting, in a closed jury room, then we could have controlled procedures in there without restrictions on political speech outside of them.

    Yeah, let's not pollute our important political decisions with dangerous stuff like information.


    All the information would be there, presented before the entire jury (polity) at once. Everybody would get their chance to speak. It's just that nobody would be allowed to campaign privately, i.e. outside the system. Anyone who let it be known that they were a candidate beforehand would be disqualified. No politicking outside the polls. You could discuss issues all you wanted outside the polls, and it wouldn't be illegal, just a disqualifier, to announce candidacy.

  • Paul||

    It's just that nobody would be allowed to campaign privately, i.e. outside the system.

    Except the incumbents who can use their position for photo-ops, call press conferences drawing attention to their political exploits, but it wouldn't be campaigning. Nooooo.... just a little communicatin' with the public!

  • قبلة الوداع||

    thank u

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