May 5, 2014
posted by Bob Bauer

A recent conversation with progressive scholars and activists about campaign finance reform certainly left no doubt about their widespread frustration.  The question before them is how the regulatory system’s steep fall can be broken.  Because the courts have been an obstacle for so long, and alarm is high in the aftermath of McCutcheon, one hope is that the legislature will eventually take matters in hand with more “deference” paid to their special expertise in framing rules targeted at corruption or its appearance.

Deference to elected officials as experts in campaigns is interesting doctrine in a number of ways.  See, e.g., Nixon v. Shrink Mo. Gov’t PAC, 528 U.S. 377, 402 (2000) (discussing the “significantly greater institutional expertise” possessed by legislators in the field of election regulation).  It has always raised the question of how comfortably it fits the rest of the reform vision of how politicians behave.  The call on politicians to reform the political process follows from a perception that they act corruptly in raising campaign money, failing to keep money from influencing their official decisions. To appeal to their expertise is to assume they can resolve this tension between public responsibility and private political interest and choose the best policy over what would be for them the best campaign. In other words, those who don’t trust elected officials to overcome self-interest in casting votes and writing most laws are prepared to do just that when lawmakers go about crafting campaign finance rules.

Perhaps more importantly, deference forces attention to the ways that Supreme Court doctrine fails to capture a complex politics and distorts it with conceptions like “expertise.”  The history of campaign finance seems to show that elected officials enact political reforms for a variety of reasons: the independent exercise of expert judgment does not always stand out. A seasoned observer suggested in the recent conversation that McCain-Feingold came about because enough politicians succumbed to political pressure.  By this account,  the reluctant supporters of the bill—the ones supplying the margin of victory—were exercising not their own judgment as experts, but acting, out of perceived political necessity, to meet the demands of others.

John McCain said something just like this, when marking the improbable passage of McCain-Feingold. Proponents of the law, he said, managed to “overcome the parochial interests of members of Congress by going directly to the country.”   There were reports throughout the deliberations of Members unsure or sharply skeptical of the merits of the proposed legislation but  torn between these reservations and the politics of the issue.  Mitch McConnell, gloating, declared that he detected among these Members “a sense of panic. There’s been a sense of foreboding. They’ve asked me, ‘Are you going to be able to kill this thing?’”

Comfort might be taken in the possibility that Members were swayed by public opinion—in McCain’s words, reform advocates won the argument by “going directly to the country.”  Even if true, however, a commendable sensitivity to public preference is not the same as expert conclusion about sound public policy.  But there is reason to believe that it is not true. For campaign finance has never been a high priority for voters that drives their choice in elections, and Members by and large know it.

The part of the “country” where the power of the reform argument was strongest was to be found in interest group lobbing and elite editorial pages.  Which is not to say that there is anything wrong with interest group lobbying or influential editorializing. Or that Members should disregard these pressure points, either in judging the merits or in assessing the political pressures facing them. The question is whether, in insisting that Members are owed deference to their “expertise” in campaign finance matters, the intention is to honor their authority in this realm of policy or to maneuver them into representing and voting for the preferences of others. The deference argued in idealized terms in scholarship and jurisprudential argument means something quite different in the practice of interest group politics.

This is not the only case of campaign finance debate divorced from the flow and structure of everyday politics.  Another example, to be discussed later, is the conception of “parties” and how they operate.

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