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Self-Serving Campaign Finance “Reform”

Businessman in front of a decision

National Journal, contributing to the perennial wringing of hands among the political puritans who comment on affairs of state, has proclaimed super PACs to be an “existential threat to the old order.” These groups are said to have overwhelmed the once-intimate bond between candidates, parties, and voters.

This rests on a constricted definition of “old.” The rise of super PACs is better understood as the restoration of a really old order—a time in which campaigns were communicative free-for-alls rather than regulated, top-down affairs.

The fundamental error among the puritans is one of perspective: They cannot shake the candidate’s point of view. The candidate seeks to control the political environment. This has always been the spin doctor’s mythology. Yet there is no reason to regard such control as a political good, and still less to see it as a political right. By contrast, the voter’s perspective sees the right to communicate as belonging to the participant in the political system, not those atop that system.

Ed Rogers, a political strategist who blogs for the Washington Post, offers this reflection on the National Journal piece:

At the end of the day, elections should be between campaigns, the parties and voters. The campaigns should be able to take contributions in any amount from any U.S. source and deal with the consequences of accepting this or that donation. Nobody should be kicked out of the system because the First Amendment allows full participation, but everyone should be funneled through campaigns that are held accountable to voters and are forced to answer questions about whether or not they are corrupted by the source of their funding.

Rogers is right about accepting contributions in any amount. Yet look closely: he would give candidates special status as the instruments through which others’ speech must be “funneled.” That part constitutes a stunning misperception of the First Amendment, which does not privilege, or even recognize, either candidates or the regulatory apparatus of campaign finance. They are no more elevated as conduits of communication than private citizens or, for that matter, private newspapers.

What if citizens wish to speak without funneling their contributions through campaigns organized by candidates or parties? Rogers’ logic inevitably means private citizens are to be inhibited from spending their own money to communicate political ideas unless they do so through a political campaign.

Which leads one to ask: If private citizens are to be constrained in that way, why not the Washington Post? Interestingly, when proposals to regulate political communication emanate from bien pensant quarters of the institutional press, these suggestions for reform will often exempt—which is to say elevate—the press. Just as candidates claim ownership of politics, newspapers claim it of the First Amendment.

But surely, if a private citizen is not supposed to spend his own money to inform his fellow citizens of his political views outside the apparatus of a campaign, why would the publication of his words in a newspaper erect a shield? The First Amendment simply does not distinguish between the two acts. And in fact the institutional press that we know today, unaffiliated with candidates, is a modern artifice that the Founding generation wouldn’t have recognized. Their newspapers were all political organs, privately published, often controlled by sitting officials of government. Witness Thomas Jefferson’s patronage of the muckraking journalist James Callender (at least until protégé turned on patron).

There is no reason to see the modern-day New York Times or Wall Street Journal as better protected by the First Amendment than modern-day political contributors such as the Koch Brothers or George Soros.

On the contrary, the private individual who communicates his views using money is involved in an act explicitly protected by the First Amendment, arguably one more purely and clearly shielded than contributions to a candidate—though those are a form of political expression, too. The super PAC that advertises is engaged in the same act as a pamphleteer who prints his or her own brochure.

And what, precisely, is wrong with that? In his capacity as a private citizen writing for a private newspaper, the Republican Rogers has as much right to criticize the Democrat Hillary Clinton (see the post above) as Hillary Clinton has to promote herself. The venue in which either does so is irrelevant. That another citizen might spend his or her money to express similar opinions is not scandalous.

Such independently financed messages might overwhelm—indeed, arguably have overwhelmed—candidate communication. To which the proper response is: So? Might the fact that political communication is a multi-billion-dollar industry be a sign of a robust rather than an infirm public square? Candidates have no entitlement to control this environment any more than they may police conversations about themselves online, in the newspaper, or around the dinner table.

To be sure, much of the information being communicated today is misleading. So is some of what is said on the Senate floor. But it is not the job, or within the constitutional authority, of government to purify the content of communication. And the flood of messages is a problem only if voters are dupes incapable of evaluating today’s ample supply of information, in which case self-government itself, not the manner of its financing, is the problem. But that is, of course, how the puritans view their fellow citizens, to whose paternalistic protection they are devoted.

This makes one wonder why, if citizens are incapable of evaluating the content of 30-second advertising, the puritans are so eager to overwhelm them with reams of disclosure. Disclosure, which inhibits anonymous giving free of the fear of retaliation, may itself impede freedom of association. But even setting that aside, the secrecy enshrouding super PACs pertains to acts that are ultimately public: how members of Congress vote, for example, or what Presidents decide, for which they are clearly accountable to the public regardless of what impelled them.

Moreover, the relentlessness of today’s media environment makes it exceptionally unlikely that such secrecy will, in any event, long endure. If the point is a quid pro quo, someone has to disclose the quid. That the Koch Brothers were behind much of the super PAC spending in the last cycle was well known and repeatedly discussed. That they intend to spend heavily in this cycle is equally well known.

Heavy political spenders are rarely shrinking violets. The assumption is that they are venal, which arises from Americans’ fraught relationship with money, which fascinates us even as we assume that anything it touches is morally corrupt. But super PAC spending is often a public good. In the Kochs’ case, they certainly spend more than they are likely to reap in benefits from any governmental policy.

This spending could just as easily be cast as charitable: It is spending to promote ideas. If a wealthy donor gives an immense amount to, say, Greenpeace, we recognize this as altruistic. If he or she spends the same sum encouraging his or her fellow citizens to vote for political candidates who support the Greenpeace agenda, it suddenly becomes debased.

Independently financed speech quite often criticizes government, which may help explain why government is so eager to control it. So does this: Challengers tend to beat incumbents by outspending them. Long-shot candidates used to be elevated by one wealthy backer or a few of them. Limits on campaign spending, making the politicos foreswear large contributions and pass their days amassing small ones, are therefore incumbency traps. They pass the hat using their name recognition; challengers, lacking that name recognition, are barely able to keep up. The system inhibits newcomers and favors the mainstream of the political establishment.

But this independently financed speech, regardless of its policy implications, and whether engaged in by super PACs or street-corner pamphleteers, does not lose First Amendment protection by dint of being outside the organized political system for the simple reason that candidates do not have more of that protection than the rest of us. Neither they nor the media own political conversation, nor should they. The quality of conversation might, on the whole, even rise.

Reader Discussion

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on April 30, 2015 at 15:42:43 pm

I have to disagree with some of the post.

The problems being discussed here are the dual problem of bribery and extortion, and the problem of a party policing themselves. So much of the campaign finance contributions are not monies given to support a candidate's cause, but rather to buy the favor of the candidate (bribery) or to prevent the candidate from doing something the money giver doesn't want them to do (extortion).

Sorry, Greg, but almost all of us know stories of people who give large "contributions" to political candidates and parties, and who also just happen to magically get a law passed or an exception made for some project they are working on.

The problem is not the extension of speech through money. The problem is when money is given to bribe a candidate or as a response to an extortion attempt made by the candidate. Those are crimes. Freedom of speech does not give the right to walk into a bank with a weapon and command the tellers to give me all the cash. Freedom of speech does not give a political candidate the right to use their office take a bribe or commit extortion, no matter what law the candidate may have passed with respect to this behavior.

Much of the money finds its way into the pockets of the candidate, or the candidate's family and friends.

There is some research--I don't have a reference at hand at this moment--suggesting that putting more money into a campaign does not have a significant effect on outcome. The implication if true is that the campaign "gifts" have nothing to do with effecting the outcome of the campaign, but is intended as bribes or extortion payments, which ends up in the pockets of candidates, family and friends.

The problem of controlling the corrupting influence of campaign donations is the problem of creating effective oversight and policing, not of speech, but misuse of office.

The issue of the press is well know, I think. If you control campaign donations, how do you handle issues of actual speech?

Speech that costs money to publish has financial value. If a publication prints a political message and somehow receives payments with respect to those messages, has a bribe been committed?

(I find myself unable to watch commercial television anymore because I cannot tell the difference between political messaging and commercial messaging in the commercial advertisements, and most of the political messaging revolves around the promotion of racism for political purposes. I wouldn't let my eight-year-old watch the Olympics on NBC because it was filthy with that grotesqueness.)

Gifts in kind (such as publications from the press) are problematic, and I think most of us agree on that.

The main issue I have here is the problem where the winning candidates make the campaign laws. A neutral party would be better able to make substantial and effective laws. We can complain all we want about problems with campaign laws, but as long as the beneficiaries of the abuses are the ones responsible for making the laws controlling those abuses I don't see a solution to this issue occurring any time soon.

I would rather see campaign financial donations given through an anonymizing service of some kind to prevent the knowledge of who gave money to who. This permits the extension of speech through money while at the same time it minimizes opportunities for bribery and extortion. I would rather see an elected non-partisan person be responsible for policing campaigns and I would rather see the public enacting campaign laws through referendum.

Those would be some positive steps to take.

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Scott Amorian
on April 30, 2015 at 17:22:55 pm

Scott:

Good comments.

For me, it is even worse. I can barely watch sports commentary any longer as it too is politicized. How much of an "in-kind' contribution is that.

My only issue with what you write is that I am far less optimistic than you that we would be able to find, or maintain, a body of non-partisan overseers. To me, it seems like the so called "non-partisan" elections that many municipalities conduct. Who wins, you may ask - the usual suspects.

If I could find away around (without violating the First Amendment) the problem of "media" corporation in-kind campaign contributions, I would ban all monies coming from corporations, unions, NGO,s etc. Only individual US citizens could give money and they could give as much as they dang well pleased. But it ain't gonna happen. So maybe you and I should just pool our monies and buy a couple of newspapers and TV stations and give some non-partisan, small-r republican sentiment to the masses.

take care

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gabe
on May 01, 2015 at 10:08:05 am

Scott and Gabe: Thanks for your comments. Some respectful dispute: Bribery and extortion are already crimes, as Governor Blagojevich can attest. So is campaign money finding its way into the personal pockets of the candidate or his/her family and friends. Incidentally, I'm unaware of any evidence of the latter happening on a wide scale: As much as we like to indulge the caricature of the corrupt politician, politics has never in American history been cleaner, formally speaking, than it is today. The underlying problem with proposals to criminalize political behavior further is that corruption is in the eye of the beholder. If a senior citizen gives a candidate $25 and demands that he/she keep the Social Security benefits coming, I take it we agree that's not bribery. It is, however, the exchange of something of political value for a promise of financial benefits. So, for that matter, is the promise of federal funds for a bridge or dam in one's district in exchange for votes. What's the point at which this behavior becomes corrupt? Is it a matter of scale? (The real problem is supply side, not demand side, which is to say that government is present in nooks and crannies that call forth venal [or defensive] contributions in the first place.)

As for the politicization of commercials, sports commentary, etc., I would note a couple of things. First, I too am troubled by the politicization of the non-political. A quick, if depressing, look at the user comments at the bottom of any news story will reveal that even earthquakes in Nepal elicit political commentary attacking President Obama or his Republican adversaries. Second, there is no escaping the fact that the First Amendment protects political speech simply. (Justice Scalia in McConnell v. FEC arguments: "How do you get around the very simple text of the First Amendment?") Scott, you had the right solution re the Olympics, which is to turn off the television when messages offend, not to sanitize or silence them by political fiat. And the only solution worse to me than political regulation would be (allegedly) depoliticized regulation. Re: what are described above as "in-kind" media contributions: These are political commentary. Is this blog an "in-kind" contribution to candidates of whom it speaks approvingly or whose opponents it criticizes? Is the argument that voters can't figure all this out for themselves, the New York Times, MSNBC (and, by the way, the Wall Street Journal and Fox News) notwithstanding? Because if so, then to quote Madison, "We are in a wretched situation." And campaign finance reform will not save us from it.

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Greg Weiner
on May 01, 2015 at 16:41:58 pm

And thank you, Greg, for you courteous reply. I read this blog almost every day at lunch and I always find your commentary insightful.

My reference for the practice of bribery and extortion is Peter Schweizer's book--Extortion: How politicians Extract Your Money , Buy Votes, and Line Their Own Pockets. I found Schweizer to be credible. Schweizer's expose' does some good investigation into the financial goings-ons in government. He presents more than just a caricature of politicians as bad, he provides reasonable and substantive documentation. Perhaps someone has written a counter argument to Schweizer's text. That would be an interesting read also.

While I agree that politics has never been cleaner than it is today, I still find value in working towards politics that are cleaner still. As an engineering principle, flaws that do not negatively affect a small system, such as America a hundred years ago, may be critical flaws in a large system, such as America today. I think improvement in cleaner politics will come with faster and more effective means of communication; in other words, from improvements in communication technology, such as blogs like this one that give everyday schmucks like Gabe and myself knowledge and quick insights and all-too-rare public discussions with experts such as yourself.

"What’s the point at which this behavior becomes corrupt? Is it a matter of scale?"

Good question. It becomes corrupt when campaign contributions have the ability change the behavior of the office holder in favor of specific individuals. If Schweizer is correct, and I believe he is, the system today brings about government actions that tend to favor the highest bidder. I would rather have a system that represents the desires of the democratic political base, the poor as much as the wealthy, the ploughman as much as the philosopher.

Interestingly, I believe, the influence of the wealthiest--usually the highest bidders--tends to lead to economic stability. If the legislature wants to propose acts that harm wealth, the wealthy will bid on not enacting that legislation. Severe campaign finance reform could destabilize the economy. For that reason I am guarded about campaign reform.

As for the mindset of the typical voter, I think that our politics is powerfully affected by the statistically average American voter. 50 years ago this was a man, 45-ish. Today it is a woman, around 47. She has an IQ of about 105 I would guess. She is involved with her family and job. She has maybe a year of secondary education. She does not put a lot of effort into following politics. She makes the key political decisions. She is manipulated by the sophisticates of the political system. These sophisticates are well educated, very bright, highly manipulative, and hungry for power. They have laboratories where they study the impact of political messaging. They have powerful computers to study the effects of their social engineering efforts, from which they learn and improve those efforts. They have tools to monitor much of what she does, and in the near future they will have the ability to monitor and manipulate her even more. Our woman voter wants to protect her freedoms and secure herself and her family from the carnivorous sophisticates. What chance does she have fighting those beasts on her own?

I completely understand the meaning of Madison's quote, but this is not Madison's age. Madison's America ended when Madison did.

The question, as always, is: Where is the balance between securing the benefits of wealth and democracy, while preventing the harms of wealth and democracy?

Its a tricky human problem, figuring out which freedoms to give up to create which securities. I don't believe it can be solved with just a rule. It takes Rappaport's traffic cop, who knows when to let the traffic go 10 mph over the speed limit and when to intervene. It is an issue of principles and values, of faith in the Laws of Nature and of Nature's God.

(Oops! Time to get off my soap box.) ttfn

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Scott Amorian

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.