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Real Campaign Finance Reform: Legislating Through General Rules.

In a series of decisions on campaign finance legislation, the Roberts Court has made it clear that Congress cannot solve the enduring political issues of undue or unequal influence in politics by restricting speech. Now that legislatures are aware this option is no longer on the table, they are under more pressure to find other solutions.  Importantly, Congress could constrain undue influence by legislating through rules of general applicability.

Under a regime of generality,  Congress would disable itself from handing out money, lucrative projects, or regulatory relief to designated individuals or small groups. Such strictures would make corruption less likely and indeed eliminate the kind of influence which seems most undue. Decisions that that can be framed in terms of general rules are more likely to be aimed at the public good than at the provision of favors.

In fact, Congress recently moved toward legislating through general rules by eliminating earmarks.  Earmarks are the practice by which individual members of Congress target appropriations for their own district outside of any competitive process or other neutral criteria. A longstanding complaint is that earmarks—a kind of pork barrel politics—add to the budget deficit and give a green light to inefficient projects, such as the infamous Bridge to Nowhere, for which the costs far exceed the benefits to the nation as a whole.

The Citizens United case sparked renewed criticism of earmarks because of the fear that companies would spend money on elections in the hopes of obtaining an earmark for a project that would benefit them. The Roberts Court’s protection of political speech happily encourages those interested in good governance to find allies who want more fiscal responsibility rather than less political debate.

Congress could further constrain undue influence by committing itself to general rules in regulatory as well as fiscal legislation. The ban on earmarks does not prevent members of Congress from providing direct regulatory relief to individual companies. Reform may have to await some scandal about a member of Congress directing regulatory relief to a supporter. But when a scandal arises, that kind of rule-based reform is more likely now that the Court has prevented Congress from doing what it has done in the past– ratcheting up restrictions on campaign donations and expenditures.

Legislating through general rules would have benefits beyond restricting undue influence. Many political philosophers, including Fredriech Hayek, have endorsed legislating by general rules. They make planning easier by making law more predictable and provide greater assurance to the public that law is based on reason rather than on caprice. And unlike restrictions on electoral campaigning, bans on earmarks and regulatory relief have the virtue of not protecting incumbents from electoral competition.  Indeed they are likely to deprive incumbents of some advantages Because the ability to gain earmarks and provide regulatory relief increases with seniority, earmarking gives voters reason to support incumbents, whatever their policy positions.

The way to make politics more honest is to constrain the actions of legislators, not the speech of citizens.

Reader Discussion

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on July 30, 2014 at 09:11:23 am

What a terrible idea. All it would do is move corruption from Congress to unaccountable agencies that have far too much power already precisely because the laws are written broadly and/or vaguely. Better to require specific laws that a voter can read and determine who is responsible for it.

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Ron Johnson
on July 30, 2014 at 10:20:50 am

Like the concept. Not sure about the implementation.

What do you think of line-item veto? Conceptually it should promote laws of general appeal over laws of special interest. The theory holds that legislators want to promote the narrow interest of a constituent or two, but can't marshal a majority of their fellows to vote for these favors. Thus legislators create massive omnibus bills containing sufficient favors for constituents in the districts of 51% of the legislators, and in this fashion each legislator can secure the approval of his fellows. But if the executive can undue the deal by striking down individual provisions, then legislators can no longer count on the package deal holding together.

Some say that this should help reduce the amount of special-interest log rolling that occurs. Others suggest that it merely causes the executive to join in the log-rolling.

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nobody.really
on July 30, 2014 at 10:52:40 am

I had the same reaction initially. But I think McGinnis's "general rules" means rules of general applicability, not vague rules.

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nobody.really
on July 30, 2014 at 13:34:42 pm

"Some say that this should help reduce the amount of special-interest log rolling that occurs. Others suggest that it merely causes the executive to join in the log-rolling."

How right you are. Of course some of us think that the Executive is (has) already been so complicit - true for both parties.
Yet there is a certain aspirational attachment or fondness for the line-item veto, isn't there? I suspect that it too would soon fall prey to the baser ambitions of our political class. after all, if one wanted to exercise a line-item veto, simply veto a law and proclaim "Not to be signed until Sen. Philly Busters rider for a study of the sexual life of the tree frog is deleted."
This too however must overcome the tendency (requirement?) toward deal making to obtain support for any piece of legislation.
Ultimately, nothing can nor will be done until the "guvmint" is constrained to a more basic set of issues / solutions. If the guvmint can be involved in "pastry making", birth control, etc etc etc, there will always be ample opportunity for the ambitious and clever political type to make hay!!!)Oops, that is also regulated).

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gabe
on July 31, 2014 at 15:47:25 pm

There are some powers that agencies do now that they shouldn't do at all. Such as the power to "interpret" laws in which courts will give them deference (that's a legislative power not executive), or to write regulations binding on individuals (that's also a legislative power), or to adjudicate if the law was violated in a way the article 3 courts will give deference to (that's a judicial power).

But the execution of general laws passed by congress is exactly what these should be doing, that's an executive power. Pass a law binding people in general, and then let executive agencies find people who violated it and bring them to court. Or pass a law appropriating funds for a purpose and then let the executive find exactly which project (or who to hire) to execute that law, that's what the executive branch is meant to do.

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Devin Watkins

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.