Reforming Campaign Finance

Last week's decision is just a start in restoring political liberty


Predictably, the Justice Department and various congressmen are appealing last Friday's federal court decision striking down some aspects of the 2002 Bipartisan Campaign Reform Act. They think the decision should not have eliminated any aspect of the law.

In quick summation, the three-judge panel decided 2-1 that soft money raised by parties can return to being unlimited, as long as the money is spent on general party-building activities and not on issue ads or promotion of specific individual candidates. Also, interest groups are once again free to mention specific federal candidates in issue ads no matter how close it is to an election, as long as they don't specifically promote, support, attack or oppose those candidates.

Yes, in a nation with the First Amendment in its Constitution, it is somehow considered proper for the government to pass a law telling people they cannot publicly promote, support, attack, or oppose candidates without following government mandates.

From the other side, the National Rifle Association is also appealing the decision, arguing that the three-judge panel didn't go far enough in eliminating blatantly unconstitutional restrictions on political speech inherent in the law. The case will wind up before the Supreme Court, but probably not before fall at the earliest, leaving parties and advocacy groups in confusion as to how to behave until then.

Friday's decisions theoretically make it all right for "soft money" gathering and spending to continue apace, but with the rules in flux, it would take some bravery to rely on any current understanding of what the legal campaign finance climate will be come next year's election. As commentators have pointed out, the 1,700 page decision is such a jumble that the Supreme Court will be pretty much starting from scratch, meaning no one should feel particularly heartened—or disheartened—by the specifics of this decision. Leading Senate supporter of the law, Russ Feingold (D-Wisc.), subtly acknowledges the law is a constitutional nightmare by admitting that "We thought the court might strike the whole thing down…This [ruling] is better than I expected."

I've been writing and speaking against campaign finance reform for years. Arguing publicly against it quickly leads you to assume that either you or the rest of the world is insane. What seems completely undeniable—that robust, free democratic elections are not served by having the government establish complicated, picayune restrictions dictating how and in what manner people can express their opinions or show their support for candidates—is regularly denied in pursuit of a vague vendetta against some fantasized notion of plutocrats deciding elections.

Campaign spending has never been a guarantee of electoral success—ask Michael Huffington or Oliver North. Incumbency is a better predictor of electoral success than campaign bucks—and it's when incumbents are spending a lot that they are obviously most in trouble. Nor is there any solid evidence that campaign contributions wag the dog of legislators' decisions more than do party affiliation, ideology, and their perception of their constituents' desires. It's far easier to support people who agree with you than to bribe people to do your bidding.

And in effect, any attempt to level a fundraising playing field through legal restrictions is a great benefit to incumbents, with their high name recognition, franking privileges, and insuperable media and publicity advantages. The enforcement of complicated paperwork and reporting requirements on candidates and interest groups is also far more of a blow to grassroots activists than to the well-connected, wealthy influence-peddlers who are the villains in campaign finance reform fantasies. Consider the fate of an amateur California recall effort smacked with life-ruining fines eight times what their entire campaign gathered for upsetting a powerful politician.

Still, nice old ladies listening to speeches on campaign finance at a local American Civil Liberties Union chapter don't want to hear anything about how such laws stymie grassroots political participation. All they know is that they don't like rich people and they think such laws will limit their power.

Such nice old ladies are mistaken on both the facts and the principles. Supporters of free elections can only hope that the Supreme Court proves smarter and more sensitive to political liberty.