One of the big items today is news that the Romney campaign is bleeding cash. Considering his all out assault first on Newt Gingrich, and now Rick Santorum, this comes as no surprise. Yet while Romney spends more in a day than Santorum spent through most of the campaign thus far (only a slight exaggeration, I think), Santorum continues continues to poll ahead of Romney nationally and is neck-and-neck in Romney’s home state. Of course Romney still has plenty in reserve thanks largely to his Super PAC. Even Newt Gingrich’s fledgling campaign is still alive thanks to the generosity of one supporter funding a pro-Newt Super PAC.
These Super PACs have come under fire. They are the indirect result of the McCain-Feingold campaign finance law, a law which itself amended the Federal Election Campaign Act (FECA), a law meant to restrict the amount of money that individuals could donate to individual candidates. FECA created a two-tiered structure that basically divided federal contributions into two categories: hard money and soft money. Professional sports fans probably recognize the terms as related to soft and hard caps, and it’s really the same concept. Under FECA individuals could only contribute $1,000 to a candidate per election cycle. Yet there were no restrictions placed on “soft money,” meaning contributions to party committees. This was the original end-run around campaign finance law. Under the Bipartisan Campaign Reform Act (BCRA), or McCain-Feingold, individual contribution maxes to candidates were raised, but soft money contributions were phased out. This, in turn, gave rise to other organizations, mainly 527s, which were able to raise unlimited amounts of money to air issue advocacy ads against candidates. These various organizations are not technically affiliated with any candidate, and it is a violation of campaign finance law for candidates to collaborate in any way with these groups.
So is it time for another set of reforms? Indeed it is. And the reform is simple: repeal all these ridiculous (and arguably unconstitutional) provisions, and allow individuals to contribute whatever amount of money they want directly to candidates.
I won’t delve too much into the constitutionality of these laws because they are terrible policy decisions. It should be pointed out that the Supreme Court decision that upheld FECA, Buckley v. Valeo, is one of the most confusing, poorly reasoned messes in the history of the Supreme Court. It was in essence a 4-4-1 decision, and the man who got to write the decision was the one Justice who disagreed with the other eight. Look, I fancy myself something of a minor constitutional scholar, and this is one cluster-mess that just leaves me absolutely befuddled. Long story short, SCOTUS upeld contribution limits but struck down spending limits.
The Court hardly covered itself in glory in the case related to BCRA. McConnell v. Federal Election Commission featured a disjointed opinion that again upheld most of the law while striking down others. It is only slightly less of a maze to sort through than Buckley.
The Citizens United case, the bete noir of the left, is probably the only consistent and well-reasoned of the Supreme Court’s campaign finance cases. This is the decision that struck down limits on independent ads and helped lead to the creation of Super PACs.
Constitutional issues aside, attempts at campaign finance reform have not only failed to stem the tide of money rolling into federal elections, they have made campaigns even more disjointed and further removed from the candidates themselves. At least under FECA and the reign of soft money political parties could control the content of ads on behalf of their candidates. Now we have a system where small groups or even single individuals can work indirectly for a candidate and run ads over which the candidate has absolutely no control. In other words, candidates are less accountable for the ads being run against their opponents.
On top of creating a system where candidates cannot directly control how money in their name is being spent, the system is so complex that it actually increases the amount of contact candidates have with groups trying to raise funds. Candidates have to jump through hoops trying to comply with an intricate set of laws that tells them who they can talk to about what. And now instead of fishing for a few large donors, candidates must try and solicit funds from a wider variety of groups. So if the idea of the law is to keep candidates pure by prohibiting one large contributor from gaining an influence over them, we’ve created a system where a whole bunch of contributors have access.
All of this to avoid a problem that didn’t really exist in the first place. Campaign finance reformers hyperventilate about the idea of interest groups influencing candidates. But let’s pose a question here. Does, say, the NRA contribute to a candidate in order to get that candidate to support them in office, or does the NRA contribute to candidates that they know will support them in office? Campaign contributions are thought to be exercises in influence peddling, but in reality most campaign donations are essentially rewards for candidates already sympathetic to the donors’ views and causes. I’m not naive enough to suggest that politicians are not at all ever swayed by campaign contributions; however, candidates have to get elected by voters. Given a choice between kissing up to a donor and a voter, the voter wins every time. Of course we’d never suggest that we curtail democracy in this day and age. But democracy causes candidates to “sell out” more often than a contribution from Scrooge Inc.
Campaign finance reform is probably the best example we have of the folly of most reform. Not only have these reforms not accomplished what the reformers originally envisioned, they’ve made matters worse in most ways.
Hooray for reform!