Here are three recent lines of argument about campaign finance, two of them in response to McCutcheon and one of them about the escalating conflict between the FEC Commissioners.  Each is interesting in its own way; they are also constituent parts of the basic, most frequently heard defense of the Watergate-era regulatory program.

Former President Jimmy Carter:

The argument:

There was a spirit of harmony there, friendship. … All of these things are gone, primarily due to a stupid decision that the Supreme Court made on Citizens United and that they exacerbated this past week with another ruling. … And this massive infusion of almost unrestricted money going into the political campaign, a lot of it is spent just on negative commercials to tear down the reputation of your opponent and that polarization that occurs, that didn’t exist when I ran for office.

The significance:  This comments fall into “things are worse than ever before” school of thought.  The question is whether the history here is accurately recounted, and the answer is—not really.

Negative campaigning, particularly of the “independent expenditure” variety, arrived with much noise in 1978, two years prior to President Carter’s reelection campaign.  Frank Sorauf, Inside Campaign Finance 180 (1992) (“A potent new political tactic, independent spending, had arrived [in 1978]”).  The Democrats responded with various legal maneuvers, including an attempt to obtain relief from the FCC in the form of a grant of free time to respond to independent expenditures. In Re Request of Carter/Mondale Reelection Comm., Inc., for Declaratory Ruling, 81 F.C.C.2d 409 (1980). There was also an initiative to retain an IRS rule that denied the then-available tax credit to contributions made to finance “attack ads,” see Editorial, “Eliminating the Negative,” The Washington Post (March 23, 1981); and only a few years later, litigation to impose limits on independent expenditures in opposition to publicly financed Presidential candidates.  FEC v. Nat’l Conservative Political Action Comm., 470 U.S. 480 (1985).

Professor Edwin Chemerinsky

The argument (giving one of the reasons why McCutcheon changes the world of campaign finance for the worse):

By itself, this decision will be undesirable in giving the wealthy the ability to spend far more in federal election campaigns. Previously, such individuals had to choose which federal candidates to support. Now, they can give to all they wish to help.

The significance:  Critics of reform sometimes complain that the case for regulation is sometimes excessively distant from a concern with corruption or its appearance, or even other goals, like political equality.  Here Professor Chemerinsky regrets that after McCutcheon, a contributor will no long have to “choose” among the candidates he or she wishes to support.  But why force such a choice?

It was always a major weakness in the case for the aggregate limit that a contributor with the means and the desire could be barred from giving any money at all, in whatever amount up to $2,600 per election, to certain candidates.  These were the candidates who might come to the donor’s attention after her aggregate limit had been used up: for those candidates, the contribution limit was “zero,” and the answer to the disappointed supporter was that it was on her—it was her “choice.”  To protect against the use of her funds to achieve corrupt ends, no contribution at all, to those candidates, could be made.  This is campaign regulation as bank shot—“circumvention,” in its technical formulation—and not easy to follow.

Larry Noble, former General Counsel to the FEC, now with the Campaign Legal Center:

The argument (critiquing the Republican Commissioners’ steadfast dissent from enforcement in high-profile cases:

In the end, Congress and the White House have to be held accountable for the fact that there will be no serious enforcement of the campaign finance laws until fundamental changes are made to the agency, including the appointment of commissioners who believe in the law and its enforcement (emphasis added).

The significance: Of interest here is the charge that Commissioners do not “believe in” the law they decline to enforce as Larry argues they should. But there are separate issues: their duty to enforce the law, and “a belief in” the law.  In arguments about campaign finance, there are objections of different kinds, often lumped together but not the same:

A. That money spent on politics can be corrupting and presents a legitimate public policy issue;

B. That we should have legal regulation of some kind of political contributions and expenditures;

C. That the law we have now is sound and manageable.

One could hold positions A and B, and not C—that is, one might agree that campaign finance is a legitimate issue and might be regulated, but not “believe in” the current law, because it is badly designed, or because it once worked and now doesn’t, or because it never worked.

Of course, Larry is right that we should expect enforcement of the law, as the Commissioners have sworn an oath to do, but it is maybe too much to ask of all those involved with enforcing the law to “believe in” it.  To “believe in” something means to have confidence or faith in it, and those with confidence and faith in the existing law seem to be declining in number, which is not to say that they object to any campaign finance law at all.  If we insist that the regulatory regime we now have is the test of commitment to rational, effective campaign finance regulation, then getting to a better place, as hard as it will be, will be even harder.

To Sum Up

Each of these lines of argument tend to merge together to form a larger case heard from the reform side: the language of crisis (“worse than ever”); the justification of complex safeguards, usually in the name of preventing circumvention or cheating, requiring extensive limits on political activity (“you have to choose among candidates you wish to support”); and a passionate stand taken in defense of the 1970s Buckley framework, as buttressed by McCain-Feingold (“believe in it”).

That’s where things are stuck among those favoring strong controls on the 1970s model.   Those answering on the other side rely on their own hardened lines of argument, holding onto them just as tightly, which is a subject for another day.

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