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The Fallacy of Campaign Finance Reform

The University of Chicago Press

Introduction

On March 20, 2002, the United States Senate, by a vote of 60 to 40, passed the McCain-Feingold Act, otherwise known as the Bipartisan Campaign Reform Act of 2002. Because the House of Representatives had already passed it, the bill needed only President George W. Bush's signature to become law. Despite his past promises to the contrary and urgent pleas from leaders of his political party, Bush signed the bill into law on March 27. He described the bill as "flawed," however, and refused to hold a public ceremony for the signing, a typical ritual for major legislation. The law's chief sponsor, Senator John McCain (R-AZ), learned about the signing from a White House staff member. Afterwards, Bush left for a three-state fundraising trip for Republicans. Later that same day, opponents filed suit in federal court seeking to have the new law declared unconstitutional. After five years of struggle in the legislature, the fate of the new law shifted to the courts. Near the end of 2003, McCain and his allies would also win in that forum. The partisans of the law rejoiced.

In the pages that follow I argue that the victory of McCain-Feingold-indeed, the sheer existence of almost all federal campaign finance law-is reason for lamentation, not rejoicing. For more than three decades the federal government has widened its ambit over the financing of electoral struggle, making everything from small contributions to advertising for political documentaries a matter of government control and oversight. Today no one should exercise his or her First Amendment right to freedom of speech without advice from counsel, preferably one schooled in the intricacies of campaign finance regulation. In the United States, speech is no longer very free in any sense of the word.

How did we reach this point? As always with restrictions on free speech, political ambition and interests tell part of the story. "Freedom of speech for me, but not for thee" expresses an enduring truth about politics and human life. Public opinion also lends less support for First Amendment rights than we might like to think, particularly for protections related to campaign finance. Money, most people seem to think, has little to do with freedom of speech or other rights enunciated in the Constitution.

Most people are wrong.

You are reading these words right now because of money. The University of Chicago Press has spent tens of thousands of dollars producing this book. If the government restricted that spending, my and their right of freedom of speech would be limited, perhaps to the point of silence. Your right to learn about and consider the ideas in this book would similarly be restricted. Those who donate to the Cato Institute supported my work on this book. If the government restricted or prohibited such contributions, this book might well have not been written. The fact that donors give to the institute to support this and other work concerning public affairs commends the value of liberty and libertarian policies to other citizens. Money talks in many ways in elections as well as in writing about public policy.

Many people would rather not listen. Some Americans would have been happier if this book had never been written, and if written, not published, and if published, not read. Most people support campaign finance "reform" because they believe it will apply to people and ideas they do not like. I myself have illiberal feelings from time to time about speech I find uncongenial. Apparently everyone has such feelings now and then. We have the First Amendment to constrain the consequences of those feelings, thereby lending strength to the better, or at least more liberal, angels of our nature. Unlike most of us, members of Congress can and do act on such illiberal feelings. They also have powerful interests at stake in suppressing spending on politics, a conflict of interest that also evinces the wisdom of the First Amendment. In campaign finance matters, the illiberal feelings and political interests of public officials and many citizens are expressed in the language of high ideals and noble public purposes. To be sure, those high ideals also express noble aspirations and genuine concerns about the integrity of our politics. Such are the complexities of life in a mature polity. But we should not be misled into thinking that restrictions on campaign finance primarily seek noble ideals and a pure politics. We might begin to sort out the ideals and interests at stake by exploring the purposes behind McCain-Feingold.

Purposes of the Law

Public Law 107-155 (McCain-Feingold) runs for five titles and about thirty-five pages in the statute book. Setting aside the qualifications and verbiage, the law tried to change the world in three major ways. It prohibited fundraising by the political parties (so-called soft money) that had previously been legal. Henceforth, the parties would have to raise funds strictly within the contribution limits and disclosure requirements set by federal law in 1974. McCain-Feingold also doubled those contribution limits. Finally, the law sought to expand the ambit of federal election law to include fundraising for certain kinds of broadcast advertising that had previously been exempt from the requirements and restrictions of the law. Forgetting the trees to see the forest, one can say that McCain-Feingold expanded government control over the way Americans fight federal elections.

McCain-Feingold says little about its purposes beyond providing "bipartisan campaign reform." According to the American Heritage Dictionary, the noun reform means "a change for the better; an improvement" and "correction of evils, abuses, and errors." The law does not explicitly define the "evils, abuses, and errors" it proposes to correct. Its first title does take as its goal "reduction of special interest influence," but it does not define those interests. One might infer that they are known by what they have done: giving money legally to the political parties that is not captured by the restrictions of federal election law. So defined, the special interests would be no longer once the law went into effect because they would no longer be legally able to donate soft money. But that is just a guess. McCain-Feingold itself is silent about the identity of the special interests that are the targets of its strictures.

If we look beyond the law to the speeches made in the Senate in its defense, we see that its supporters expected that the new law would accomplish many purposes.

Curbing Special Interests

Today's vote ... is about curbing the influence of special interests. Now is the time to enact real reform and return the power to the people and restore their faith in the Government. (John McCain)

It is a key purpose of the bill to stop the use of soft money as a means of buying influence and access with Federal officeholders and candidates. Thus, we have established a system of prohibitions and limitations on the ability of Federal officeholders and candidates to raise, spend, and control soft money. (John McCain)

Ending the Appearance of Corruption

When the very people who have legislation before you are coming to you with greater...