An Uprising for Campaign Finance Reform?

April 20, 2015
posted by Bob Bauer

A few years ago, after the enactment of McCain Feingold, the Federal Election Commission began issuing implementing rules, and there were not well received in reform quarters.  It was objected that the agency was ignoring Congressional intent and gutting the law.  One line of attack was possible Hill intervention to disapprove the rules pursuant to the Congressional Review Act.   At a lunch with Senators to discuss this possibility, a prominent reform leader told the assembled legislators that if they did not reject the rules and hold the FEC to account, the public “would rise up” in protest. The public uprising did not occur, neither the Senate nor the House took action, and the reform critics took their cases to court—with some but not complete success.

But the hope for public pressure remains alive, and as Matea Gold reports in The Washington Post, there is some thought that with Super PACs and the like, things have gotten so out of hand that voters will insist on action.  The ranking of campaign finance among other priorities important to voters remains low, but by one reading, it is inching up the list.  Any upward movement is taken to be, maybe, a sign of more popular passion to come.  This is always the wish.  In the annals of modern campaign finance, it is never a wish come true.

But campaign finance history also shows that elected officials can be moved to take up this cause, and the same Post story that speculates about changes in public opinion records, more concretely, restiveness on the part of politicians.  And this could make a difference.  Candidates and officeholders cited in the story, such as Senator Lindsey Graham, worry about the small number of Americans—“about a 100 people”– who can shape the course of a campaign with their money.  The issue for Senator Graham is not, apparently, the cost to political equality: it is the unfairness to candidates who find that these wealthy activists “are going to be able to advocate their cause at the expense of your cause.”

In the past, an uprising on the part of the candidates and parties made reform (as it was branded) possible—McCain-Feingold was passed with limits on third party, independent spending in the guise of “issue advertising” that candidates were then bitterly complaining about.  The argument were the same then: these ads threatened candidates “control” of their campaigns.  Their “negative” tone, as Members made clear in floor debate, was an additional count against them.

The prohibition the Congress then passed on corporate and union “electioneering communications” during pre-election periods was key to final passage of the bill.  Having accepted major financing restrictions on their own parties, Members got these restrictions on independent activity in return.  This was not only how it all shook out in legislative process at the time; it was the basic bargain, explicitly understood as such at the time.

That deal has worked out poorly. The party restrictions have for the most part remained in place while the third party limitations have withered away under assault in the courts and as a result of major changes in the organization and types of this independent activity.   Gold reports skepticism that candidates mind all that much: if they did, one critic asks, why would they have anything to do with, say, the Super PACs?  The question is not especially challenging.  Candidates and parties work with the competition conditions they face, which does not mean that they like them.

So the candidates have reason to complain again.  This is the uprising that could lead to change.

Of course, there are very different understandings of what the change should be.  In Gold’s story, the Republican officeholders and potential Presidential candidates who comment for the record seem inclined toward equalizing competitive conditions and reasserting candidate control by eliminating campaign contribution limitations and only retaining disclosure requirements.   These are not the ingredients for bi-partisan reform.   But those are only details for the time being.  It is the discontent that is notable—and bipartisan.

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