Politicians and Campaign Laws: Round Two

May 23, 2014
posted by Bob Bauer

Following this posting, Norm Ornstein tweeted a vigorous dissent, saying that I had mischaracterized his position on the value of elevating to the Supreme Court former politicians with a real world view of politics.  He does not hold that position, he writes, and I see no reason to press the point in the face of this objection.  If his position is different from the one presented in the posting, then that should be noted and acknowledged, and no more need be said about it here.

The central point of the posting remains: that some believe that the Court’s view of the political process, and in particular of the risks of corruption presented by campaign spending, is naïve in the extreme.  For an alternative, these critics look to a “realistic” view held by politicians with direct experience in campaign finance. The record built by reform litigants rests heavily on this view.  But it is a perspective of some former (and current) elected officials: it cannot be said to be representative of the whole. Moreover, in a field in which much social science research on money-in-politics has been done, this version of realism does not have clear evidence on its side, and it must contend with a decent number of findings that tend to cast doubt on it.

Incumbent or partisan self-interest in the design of campaign finance laws is the related issue in the posting.  Here, too, Norm tweeted out a complaint that I agree with George Will that all elected officials “solely” look after their own interests in writing campaign laws.  Now I must also enter a respectful dissent: I said no such thing. In fact, I wrote that Will took his point too far and that a way had to be found to monitor and check as necessary self-interest while allowing room for reasonable regulation.  (Another dissent to another of the Ornstein tweets: I have never supported the view that “corruption doesn’t exist or doesn’t matter,” and I am unaware of any “campaign lawyers” who have.)

Finally, there is the question Ornstein also raises of what to make of McCain-Feingold.  One of his tweets questions how self-interest could have driven the passage of this 2002 law if I and other party lawyers counseling members of Congress had deep reservations about its effects.

But it is not an “either-or” proposition, and the question is rarely whether a reform passes only or exclusively for self-interested reasons. For one thing, the politics of the issue cut both ways. Certain elected officials who had doubts about the law wished or felt compelled to case a vote for reform, and McCain-Feingold captured the “campaign finance reform” brand. For them, this was the best politics and spared them attacks from the reform community and from the editorial pages of major news organizations. Others surely voted for it out of conviction. And still others concluded that on balance, the bill served both reform goals and  incumbent or partisan  interests, especially as it contained a “Millionaire’s Amendment” to meet the threat from well-heeled opponents and a 30/60 day pre-election advertising restriction that was widely believed and proclaimed on the floor to mitigate the dangers of negative attacks on their candidacies.

At any rate, the issue discussed in the posting is whether Court decisions on campaign finance would be more “realistic” about politics if the ranks of Justices included former elected officials with a better grasp on the “real world.”  Critics of the Roberts Court know what they mean by a “realistic” understanding of law and politics—one that takes an expansive view of corruption or its appearance, and therefore of the state’s role in controlling it.  So the politicians they would tout for Court service would be those politicians with the right “realism”—otherwise, what would be the point?

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