Campaign Finance Restrictions Fit Like a Straitjacket
In the Sacramento Bee, Professor Jessica Levinson recently compared federal campaign finance to a custom-tailored suit ripped and shredded by a zealous Supreme Court and now badly in need government alterations. Her sartorial analogy, however, is too clever by half. For most, her preferred arrangement would function like a straitjacket. The current system may not be glove-snug, but it’s ‘reformer’ policies that created the tailoring dilemma.
Professor Levinson longs for the volatile post-Watergate days when political crisis and expediency combined in the just the right mixture to create an epochal law: the Federal Election Campaign Act (FECA). Ms. Levinson prefers Americans live under its purportedly suave-fitting dictates.
Let’s look at the implications.
FECA limited political contributions and expenditures to a non-inflation adjusted $1000/calendar year. It essentially barred — with criminal penalties — anyone with anything more than a bullhorn from speaking “relative to” a political candidate. For example, in 2004 the head of the California ACLU would have risked a $25,000 fine and a year in the slammer for placing a full-page ad in the Sacramento Bee protesting George W. Bush’s torture policies.
In Buckley v. Valeo, the Supreme Court “trimmed” this absurd impediment to free expression. Subsequently, the Court tossed FECA-related restrictions on independent speech by PACs, political parties, and eventually corporations and unions.
Professor Levinson believes all these extra voices harm our political marketplace. And from a self-interest standpoint her view is understandable. Levinson would have enjoyed privileged status under FECA-original. It allowed boundless pontification for some, without risking an orange-jumpsuit: institutional media and candidates (not spending their own money). FECA silenced “the donor class” — and everyone else — but amplified the “chattering class” — those professors, pundits, and personalities who shape public opinion through media. Thus under FECA, Ms. Levinson could breezily mention five presidential candidates in one 800-word piece, but Tom Steyer’s Super PAC would need a criminal defense attorney for comparable messaging.
As it stands, Ms. Levinson worries the “donor class” can “dictate which candidates are competitive.” She has it exactly backwards; star power attracts money, not the other way around. Scott Walker started rolling in dough only after successfully taking on unions and winning multiple contested elections. Hillary Clinton and Jeb Bush raise big money through their dynastic cachet. Marco Rubio’s telegenic looks and compelling biography appeal to voters; donors notice. Skeptical? Compare Carly Fiorina’s fundraising numbers before and after her breakout first debate.
But the larger question is what this money buys besides a chance to appeal to 317 million largely uninterested citizens. The overwhelming scholarly answer is not much. As empiricist Jeffery Milyo calculates, the $10 billion that may be spent this cycle amounts to less than six hundredths of a percentage point of annual gross domestic product. And while it matters on the margin, gobs of political money simply can’t overcome other electoral advantages, to say nothing of producing policy outcomes. For just one example, in 2012 competitive Senate races, the candidate with the overall spending advantage won just 19% of the time.
The problem isn’t political money, but reformers’ obsession with it.
As the late FECA-proponent and campaign finance expert Frank Sorauf — no wild-eyed libertarian he — explained: “Money . . . has come to explain too much too easily . . . At least as it confronts the facts and events of campaign finance, the progressive worldview relies too often on a monistic explanatory system . . . this is the monism of a morality play, one with a simple plot, boldly defined characters, and an elemental struggle of good and evil that engages its audience in unquestioning belief.” Any random sample of Professor Levinson’s work reveals which of the drama’s protagonists wear the dashing white hats.
But to the extent the system needs alterations; reformers ripped the stitching. FECA’s candidate-contribution limits simply send political money underground. Instead of to candidates and parties, it flows, like water, to less regulated vehicles: Super PACs and politically oriented nonprofits. This denies the public valuable information and invites the kind of political-speech witch hunts like the recently terminated Wisconsin John Doe investigation.
Professor Levinson’s ideal system amplifies her own articulate voice while suppressing the loud, often sardonic voices typical of paid media. But in America where the Supreme Court ensures “debate on public issues [is] uninhibited, robust, and wide-open” that suit just doesn’t fit.
Paul H. Jossey is a campaign finance and election lawyer in Alexandria, Virginia. Please follow him on Twitter.