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Electronic Roundtable '06

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Edward B. Foley
Free & Fair is a collection of writings by Edward B. Foley, one of the nation's preeminent experts on election law.

Electronic Roundtable '06

On Campaign Spending Limits

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February 24, 2006

Several issues are raised in the Vermont campaign finance case, but I shall discuss here only the most fundamental issue, which the Supreme Court may or may not reach-the constitutionality of limits on campaign spending. For an excellent review of all the issues in the case, see the Case Preview by Richard Briffault at 5 Election Law Journal 74-86 (2006).

In Buckley v. Valeo, 424 U.S. 1 (1976), the Court strongly distinguished between limits on campaign contributions and on campaign spending. Contribution limits, while they significantly impinge on freedom of association, have a relatively minor effect on freedom of speech. Spending limits are direct and highly restrictive controls on speech. Recent cases have made it clear that contribution limits receive "intermediate" constitutional review, more lenient than the "strict" review applied to spending limits. The Buckley Court also found that contribution limits are better than spending limits in accomplishing the public purpose of controlling corruption and the appearance of corruption-or, as I prefer to say, controlling conflicts of interest.

Like most commentators, I have strongly criticized Buckley v. Valeo. I continue to believe that it was unwise for the Court to write a constitutional treatise on the subject before the 1974 campaign finance law had even gone into effect and that many of the particular arguments made in Buckley are weak. Nevertheless, as the decades have passed and as I have become more and more impressed by the profound difficulty of finding adequate approaches to campaign finance and its regulation, I have come increasingly to respect the actual judgments made in Buckley.

On one important point I continue to believe Buckley was mistaken. The Court claimed that given contribution limits, campaign spending limits are redundant as a device to control conflicts of interest. If only contributions over a certain amount create the possibility of conflict of interest and contributions over that amount are prohibited, a limit on campaign spending is superfluous. What this overlooks is that there is no one threshold beneath which conflicts of interest cannot arise. Contribution limits are set with many factors in mind, including the need for candidates and parties to raise ample amounts to run their campaigns. A limit on total campaign spending limits the demand for contributions and therefore may be expected to limit the pressure created by contributions.

Although I believe the Court underestimated the usefulness of spending limits as an anti-conflict of interest device, I still believe spending limits are very bad policy. One argument commonly given against spending limits is that they are anticompetitive and, in particular, that they favor incumbents. There is some merit in that argument, but I do not place as much weight on it as some do. For one thing, the empirical evidence that spending limits benefit incumbents exists but it is not as unequivocal as it once seemed to be. For another, there is a tendency to make a fetish out of competitive elections and the defeat of incumbents. Competitiveness in the electoral system is a value, but it has its limits and at best it is only one of many means toward a well-functioning democratic system.

If that argument against spending limits tends to be overblown, another argument does not receive nearly enough attention. A regime of effective spending limits makes bureaucratic and judicial decisions much too important in election campaigns. The world in which campaigns operate is complicated, diverse, and ever-changing. It therefore is inevitable that difficult questions will continually arise over what counts as an expenditure for purposes of limits. In the worst case, these decisions will be made by commissioners or judges who are less than impartial in the heat of a campaign. But the best case, in which the decision-makers make good faith judgments, is still a bad case. Campaigns and elections should be decided politically, not by arcane legal arguments.

A typical example of the problem, albeit in the context of contribution regulations, arose in the 2005 California campaign over Proposition 77, the redistricting initiative. Governor Schwarzenegger, the leading supporter of the initiative, was willing and able to raise millions for the campaign. The No on 77 Committee depended on money that would be raised by California members of the House of Representatives. But a question arose whether, under obscure provisions of the Bipartisan Campaign Reform Act, members of Congress were permitted to raise money for a state initiative campaign. The question was decided-correctly in my opinion-by a 5-1 vote in the Federal Election Commission permitting the House members to raise campaign funds. The point here is not whether the FEC was right or wrong but that there were strong legal arguments on both sides. A democratic system is less than free when the outcome of important elections can turn on such proceedings.

Finally, there is the most obvious problem with spending limits-that, as the Court said in Buckley , they are a direct and important restriction on freedom of speech. If a campaign has spent its limit and is effectively unable to continue to promulgate its message, there is no getting around the fact that its right to speak has been stifled in the very setting that is most central to democratic politics. The premise of spending limits is that the reformers can judge how much spending is enough. But that premise is profoundly wrong. First, very few reformers have significant experience managing campaigns, so even if there is anyone qualified to make that judgment, the reformers who set the limits are not. Second, no one is qualified to make that decision. Enough speech, in a free society, is as much speech as the speaker wants to and is able to speak. Even if the reformers could determine what the typical campaign "needs" to spend, what about the untypical campaign?

Does it follow that I hope the Court either reaffirms the ban on spending limits or declines to revisit the question? Yes, but not as strongly as the foregoing suggests. The reason is that I believe in judicial restraint. In a democracy, important public policy questions should be decided by elected representatives, not by judges. Judicial review is an important part of our system, and the case for aggressive judicial protection of freedom of speech, especially political speech, is stronger than on most other matters. But not so much stronger as some people believe. The notion that the ground rules of the political process are themselves somehow non-political and subject to neutral principles that can be administered impartially by judges without popular control is, in my opinion, mistaken.

My understanding of campaign finance tells me that campaign spending limits are unconstitutional. My understanding of constitutional jurisprudence tell me, don't be so sure!

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