“Accentuating the Positive” in Campaign Finance Reform

November 26, 2013
posted by Bob Bauer

The Supreme Court has boxed the debate over campaign finance into a corner, forcing the focus entirely on “corruption.” Because corruption is the whole game, it is played with vigor, and we have seen in recent years how the term has been pulled this way or that, depending on the commenter’s policy preference.

The struggle has taken place in part on a doctrinal level, with the Supreme Court pressed on expansive definitions of corruption that, most emphatically in Citizens United, it now rejects. For a while, in the wake of McConnell v. FEC, there was some thought that corrupt official conduct could consist of favors thrown the way of donors in the provision of access or the scheduling of legislative priorities. Citizens United stopped this doctrinal development in its tracks. So we now only have a sharply narrowed version corruption to go on—“quid pro quo” corruption.

Advocates of increased regulation have reacted partly by alleging corruption where they can. Often the corruption they are claiming is really corruption of the campaign finance law itself. The Supreme Court calls it circumvention, and it becomes a form of corruption argument which runs as follows: the law is supposed to prevent corruption or its appearance; the law is being skirted in some fashion; and so the skirting of the law leads back to corruption. Many assumptions are built into this argument. It has certainly led to the distasteful situation in which disagreements over the application of law are cast as confrontations between those bent on preventing corruption and those recklessly encouraging it.

These arguments go on and on with no productive conclusion in sight. Meanwhile, they may have crowded out attention to what truly troubles many observers about the role of money in politics. The demands of fundraising cut deeply into the time for legislating or contact with constituents or whatever else voters imagine they have elected their representatives to do. Officeholders speak forcefully to this point. The ones who deny that they are corrupted by fundraising do not dispute that they dislike having their hands out, “dialing for dollars.” It is time consuming, diverts energy from official responsibilities and, thrusting them into the role of supplicants, it is found to be (at times) demeaning. When voters have exhibited little trust in government, the spectacle of officeholders seeming to tend around the clock to their supply of campaign cash can’t improve the civic mood.

In Randall v. Sorrell, the Court rejected this “time protection rationale” as a basis for imposing campaign expenditure limits. And in one sense, it is easy to appreciate the irony of a time protection principle that is established to protect campaign finance regulation—from itself. On this theory, politicians have to spend too much time searching out campaign dollars because the law limits the supply, and so the “time protection” answer is to further tighten the law to also limit the demand. Campaign finance regulation becomes a “self-licking ice cream cone.” But the counter argument—that the answer is to lift all limits from contributions and facilitate the most efficient possible fundraising—invites a fundraising free-for-all with a heightened risk of corruption in theory or in fact.

Even if unworkable as a theory of expenditure limits, the time protection rationale does helpfully refocus the campaign finance argument on questions of good government, not simply the threat of bad, corrupt government. As the Court pointed out in Randall and before in Buckley, public financing is one legislative measure responsive to the time protection problem. Yet with little political appetite or support for public funding, the search for solutions will have to turn elsewhere for the time being

One possibility discussed from time to time is changing policy direction, and giving national parties more fundraising and spending authority. Political parties could use a hand in this time of super PACs, and stronger parties, better equipped to raise and spend funds efficiently, can ease the fundraising pressure on their candidates. This could be done, for example, with hard money alone, by expanding party capacity to aid its candidates with “coordinated expenditures.” The law could be amended in other ways to help parties be helpful to their candidates. And these steps could be viewed affirmatively, as a reform in the service of sound public administration, and not as a potential setback in the war against corruption.

Or, as Johnny Mercer memorably sang:

You’ve got to accentuate the positive
Eliminate the negative
And latch on to the affirmative
Don’t mess with Mister In-Between.

Leave a Reply