Almost everyone agrees that our federal campaign finance laws-which have spectacularly failed to reduce the influence of special-interest money in politics-are a stinking mess and should be "reformed."
The hard part is agreeing on exactly what is wrong and how to fix it. Indeed, while reform proposals abound, the problems are so daunting that it’s unclear whether the system can be fixed, by even the most brilliantly drafted law-let alone one with a chance of getting through Congress.
The polar positions espoused by libertarian conservatives (encouraging candidates to sell themselves to the highest bidders) and Utopian liberals (pressing a doomed effort to purge private money from politics) both seem deeply flawed. So does the bill co-sponsored by Sens. John McCain (R-Ariz.) and Russell Feingold (D-Wis.), which has won endorsements from President Bill Clinton and a gaggle of editorialists less because they love it than because it’s the only game in town with even a patina of bipartisan support.
But in a penetrating cover story ("Blow It Up") in the March 29 National Journal, Jonathan Rauch makes an intriguing, ideologically eclectic proposal for a simplified system of "public financing plus private deregulation."
Rauch begins with the perception that the current system of labyrinthine regulations, "understandable only to lawyers, and sensible not even to them,… is founded on a naive faith in rules, an discriminating disgust for money and a belief that political spending can be meaningfully distinguished from political expression. All of those premises are unsupportable, and doom any system built upon them."
The libertarian conservatives (or many of them) agree with Rauch on this, while dismissing public financing as "food stamps for politicians." Disputing the conventional wisdom that the big problem is the corrupting influence of money, conservatives say the problem is the post-Watergate effort to put campaign finance under a regulatory yoke that has done more harm than good.
History lends support to the conservative diagnosis in at least one respect The worst feature of our current political culture as compared with that of the nation’s first 180 years-the felt need of our elected leaders to invest a huge percentage of their time and energy hustling special-interest money (or to possess vast personal wealth) in order to win re-election- seems largely an unintended consequence of such rules as the ban on individual contributions over $1,000 to any candidate. Politicians have always depended on special-interest money, they have not always been so preoccupied with raising it that many of our best people recoil at the very thought of running for office.
The conservatives’ prescription is unsatisfying, however. By abolishing most or all campaign finance legislation (excepting public disclosure requirements), they would give an insuperable advantage to politicians bankrolled by fat cats and special interests. This might well increase (and surely would not shrink) the corrupting influence of private money. It hardly seems likely to revive sagging public confidence in the integrity of the system.
The most fashionable view among liberal reformers is that campaign spending must be strictly restricted and regulated. The central obstacle to reform, in this view, is the Supreme Court’s line of decisions (beginning with Buckley v. Valeo in 1976) decimating the post-Watergate limits on campaign expenditures by protecting as political speech the use of money by candidates, independent interest groups, and others to disseminate their political messages.
House Minority Leader Richard Gephardt (D-Mo.), who wants to amend the First Amendment to overrule Buckley, has made the case with amazing (and perhaps unintended) candor "What we have is two important values in conflict: freedom of speech and our desire for healthy campaigns in a healthy democracy. You can’t have both."
But the fundamental holding of Buckley was correct Unless the rights of media barons to run as many political editorials as they please are to be preferred over the rights of candidates and other citizens to buy as much political advertising as they please, curbs on political spending infringe the freedom of speech in a very direct way. And in any event, Buckley is not about to be overruled.
Most or all of the proposals by liberals to get around Buckley appear to be unconstitutional, because they would use public money or resources to pressure candidates to observe ‘voluntary" spending curbs in ways so coercive as to make the voluntariness a fiction; they would also seek to cancel out constitutionally protected "independent expenditures" by interest groups and individuals with offsetting grants of public money to the candidates against whom the expenditures are made.
The McCain-Feingold bill (which many literals consider a diversionary exercise in tokenism) is itself riddled with First Amendment problems, including a ban on political action committees. It also includes a set of rules of mind-boggling, unadministrable complexity for regulating both candidates and broadcasters. In an awkward approximation of partial public funding of campaigns, the latter group would be required to give free and cut-rate advertising time to qualifying candidates.
This approach of "reforming" the post-Watergate reforms by piling rules on top of rules is like trying to chase a hangover by having a few more drinks. The rules could be effectively enforced only by a regulatory agency endowed (unlike the currently toothless Federal Election Commission, a monument to partisan deadlock) with dangerously broad discretionary power over the entire political process. Discriminatory enforcement and partisanship (or at least the perception thereof) would be inevitable.
And by pressuring challengers to honor the same "voluntary" curbs on total campaign spending as incumbents, McCain-Feingold would give a big advantage to incumbents, who have a huge head start over challengers in name recognition and other respects before the first dollar is spent.
To be realistic, any proposed reform must recognize that in a capitalist society in which freedom of speech is a paramount value and in which moneyed interests are hugely affected by government policies, it is impossible (and undesirable) either to purge the influence of private money from politics or to give every voter as strong a voice as that of a billionaire.
The most that can be hoped for is to limit the compacting influence of money and the amount of time candidates feel compelled to spend grubbing for And the best way to do that is not to micromanage flow of private money, but to give voters the information and opportunity to punish candidates who wallow in it and reward those who do not.
Enter Jonathan Rauch "[C]onsider a regime built three basic elements. First full public financing for federal candidates who agree not to take or seek private money. Second, full, rapid and strictly enforced public disclosure of private spending in politics. Third, and at least as important as Nos. I and no other rules. Apart from voluntary public financing and full disclosure, get rid of all controls on private political giving. Jettison the 1970’s system."
(Well, there would be some rules, including necessarily complex ones to determine who has sufficient threshold support to qualify for public financing, and-in my view, though not necessarily Rauch’s-rules banning contributions of both "hard" and "soft" money by corporations and labor unions, which for most of this century have been subject to broad restrictions on funding campaigns.)
The distinctive feature of Rauch’s proposal is that it would rely not on the imposition of complex regulatory curbs on all candidates, but on the abilities voters to distinguish between publicly and privately financed candidates. Rather than seeking to use public financing as a bludgeon to curb private campaign spending, or to equalize the resources of publicly and privately funded candidates, Ranch proposes a genuinely voluntary public funding system "generous enough to let participating candidates break through to the public The idea is that even if publicly funded candidates could not match privately financed opponents dollar for dollar or ad for ad, they could campaign as "clean money" candidates and could make "the acceptance of special- interest money an issue in every campaign."
Rauch’s plan is no panacea, ad a gaggle of objections can be raised. (His article outlines and responds to some of them in more detail than is possible here.) In particular, it’s true that public financing is widely viewed as unpopular with voters. But some polls suggest surprisingly broad public support for the public financing, as distinguished from schemes to let candidates take both taxpayer money and private money.