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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

Brad Smith replies to Rick Pildes

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March 1, 2006, 9:03 a.m.

Rick Pildes directs three worthy questions to me based on Randall v. Sorrell, to wit:

Is it your view . 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?

It is not my view that all systems regulating contributions, spending, or some combination of each work, at all times, in all races, to make incumbents more invulnerable. I do think that more often than not, however, regulatory systems will tend to favor incumbents.

There is a tendency to state the incumbency protection problem too crudely. I think that Justices Scalia and Kennedy do that in McConnell v. FEC, and I'm sure I have done it myself. It is true, as Justice Scalia noted (drawing heavily off the brief of the National Rifle Association), that the legislative record was replete with comments by officeholders that seemed to indicate a strong preference for a law limiting criticism of their performance. Further, Justice Scalia made a strong case for the pro-incumbent effects of BCRA. Nevertheless, I think it a very rare thing that incumbents sit and consciously decide to support campaign finance regulation because it will be favorable to them. Rather, I think the larger problem is that incumbents tend to underestimate the detrimental effect of some provisions on challengers, and overstate the detrimental effects that some proposals have on incumbents. This result comes naturally from their incumbent's perspective. It is no secret, I think, that John McCain was one of the biggest winners under the campaign finance regime established by McCain-Feingold, and one need not attribute some recognizable, self-serving motivation to him to reach that conclusion.

Furthermore, over time regulatory systems will tend to ossify so long as they benefit incumbents. When the system is seen as less beneficial to incumbents, the legislature will be more likely to act - again, not from conscious motivation so much as an understanding shaped by their personal situations. Thus the long-term ratchet will usually work in favor of incumbents.

For these reasons, I would not have courts judge, case by case, whether or not regulations are anti-competitive. Rather, I believe that the general tendency toward incumbency bias is the type of reason - even if not one specifically identified at the time - that led to the passage of the First Amendment. Thus, it is one reason among many why I believe that the First Amendment, properly understood, prohibits limits on contributions, or at a minimum demands that they be subjected to strict scrutiny. In the strict scrutiny regime, the Court need not attempt to determine the effect of any law on competition - a pro-incumbent law might pass scrutiny if the interest were real enough - but it would more closely examine the stated rationale for the regulation, and whether it can be achieved by a less restrictive means. It seems to me that neither the spending nor the contribution limits enacted by Vermont pass the strict scrutiny test. I need to say a bit more in this dialogue about the Texas redistricting, but I hope to get back to Vermont, and explain why I consider the record in the case to be little short of a fraud on the court, before the week is out.

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