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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

Campaign Finance and Political Competition

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February 27, 2006

When elections are financed by private money, as in most elections today in the United States, I am skeptical that regulation of that private financing system is capable of making all that much difference. That skepticism is tempered by the initial success of the McCain-Feingold law; for at least the first election in which it applied, in 2004, that law does seem to have dramatically reduced corporate and union spending in elections. Nonetheless, the money that fuels elections will still come from people that can afford to devote disposable income to elections, along with entities that can donate large amounts. No matter what kind of contribution or spending limits might be adopted, those without lots of money to devote to politics will still not become the dominant funders and spenders in elections. Regulate contributions to candidates, and large donors will give to parties; regulate contributions to parties, and large donors will take out ads directly themselves or create private entities to do so.

And public financing faces a similar dynamic. Unless the amount of public financing is set high enough to make politicians indifferent to any private contributions or spending on their behalf, the same dynamic will set in. Indeed, it already has: we do publicly finance the national political party conventions, but that has made no difference at all; because the parties still benefit from resources well beyond those publicly provided, the parties still chase and get massive private donations - and the worries about the possible ties between political influence and these donations are no different now than before we began financing the conventions. We would do better to spend that money on anything else: unless public financing is high enough, it just becomes seed money for raising private dollars and buys nothing in the way of reduced private influence.

So what does that skepticism mean for the Vermont spending-limits case? Perhaps reformers should hope, perversely, for a dramatic rejection of Buckley v. Valeo, with the new Justices joining others to hold that all regulation of election financing - contributions to candidates as well as spending limits - violate the First Amendment. To the extent public perceptions about the corruption of large donations remains high, perhaps reformers would be able to mobilize the resulting frustration into support for a shift to publicly financed elections - an option with little current traction nationally. As I said, such elections are not a panacea; but I do think public financing is more likely to achieve the reformers' goals than further efforts to regulate private financing - and would not raise the same First Amendment concerns.

The alternative dramatic rejection of Buckley was hinted at in the McCain-Feingold case a few years back, McConnell, in which the Court seemed to conclude it had contributed little to making sense of this issue over the years and essentially ceded the terrain to legislatures. Justice Kennedy hinted that he, too, might have such a belief, though the direction of his views is hard to read so far. But with two new Justices, neither of these dramatic paths seems likely right now. These are exceptionally difficult problems and, for better or worse, I would expect new Justices to want time to get comfortable and knowledgeable before any dramatic break. The route of least resistance is to affirm Buckley's spending limits, which is what I expect. Brad Smith is correct, in my view, that we will likely learn more about the views of new Justices by focusing on the side of the case least noticed by the press - the side in which the Court reveals how aggressively it will scrutinize legislative caps on campaign contributions. In particular, Vermont 's limit of $500 on how much political parties can give their candidates seems, on its face, peculiarly low. But there's no way to know without a deeper understanding of the facts.

If I am skeptical about the likely success of reforms, as long as elections remain privately financed, I nonetheless think legislatures should have room to experiment with different approaches, with certain caveats. One of these is the risk that I noted in earlier posts: that sitting officeholders will "regulate" financing in a way designed to make it even more difficult for challengers. If I thought campaign finance regulation - of contributions, spending, or any combination of the two - necessarily and inherently had that effect, then I would not just be skeptical of regulation, I'd be against it. As that earlier post noted, some critics of regulation - I take Brad Smith and Justice Scalia and George Will to be in this camp - do seem to take exactly that position. The brief for the petitioners in the Vermont case also makes this claim. So I would like to ask Brad: is it your view (and, by implication, that of others in this camp, to the extent your well-informed views reflect theirs) that regulation of contributions necessarily does make incumbents more invulnerable? Regulation of spending? If this is not inherently the case, then how would you have courts judge, case by case, when regulations are anti-competitive and when not? I ask these as serious questions, because I share the concern that finance rules not be used for anti-competitive purposes.

My own reading of the evidence, though, is that the right kind of regulation can enhance the competitiveness of elections. Not dramatically - I remain skeptical of that as well. But if it does turn out that regulation causes elections to be more competitive, Brad, would you then become more supportive? To be sure, there would still be further, serious First Amendment issues to be concerned about. But since the First Amendment is concerned with competition of ideas and means to hold political officeholders accountable, regulation that did enhance competition would also resonate with First Amendment concerns. Before we added two new Justices to the Court, the Court seemed poised - wearily, perhaps skeptically - to reduce its role and allow more legislative experimentation in this area. I expect no dramatic breaks from that this week, but perhaps we will have a few tea leaves that enable us to sense how much the new Justices - who lack the exhaustion with this issue of the rest of the Court - will be willing to tolerate state experimentation in this difficult area.

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