Undesirable Alternatives

May 11, 2016
posted by Bob Bauer

The Louisiana Republican Party has enlisted Jim Bopp to mount a challenge to campaign finance restrictions on state political parties and so it is widely assumed that this is a Trojan Horse lawsuit with much wider significance for the survival of McCain-Feingold.  And of course if the three-judge court, then eventually the Supreme Court, decide the case a certain way, it could well help doom the 1970’s reforms–if not immediately, then eventually.  Rick Hasen, among others, has embraced the doomsday scenario, and the reform community has communicated to the three-judge court just this view of the stakes.

All of this may be true but this case and likely others to follow point to the costs of the bitter, stalemated discussion of campaign finance policy.  Louisiana and its lawyers have a reasonable case against the regulatory burdens on state parties: they stress that the dissatisfaction with aspects of these rules is bipartisan.  Thoughtful observers have concluded, as Brookings scholars recently did, that reforms are required.

But on this, as on other campaign finance issues, there is little likelihood of progress: no serious legislative engagement and, outside the Congress, a sharply divided political debate that mainly sorts out into hardline “reform” and “anti-reform” camps. The fight has largely moved to the courts, and from the reformers’ perspective, and with some uncertainty after Justice Scalia’s passing, this serves to put at risk the entire Buckley framework.  But if the outcome there is muddled or inconclusive, what will continue is the slow, steady rot of a regulatory regime characterized by ambiguity, complexity and evasion.  Neither of the alternatives is desirable.

There is a middle ground on these issues, one that can be occupied without endangering constitutional rights or breeding corruption.  In the case of state parties, the Brookings Report offers sensible suggestions.  It is not the end of meaningful campaign finance controls to revisit parts of the 2002 rules compelling the use of “hard money” to pay for what are defined, broadly, to be “federal election activities,” including get out the vote and voter registration activities.  It should be possible, for example, to carefully reconsider a financing rule that rests in application on a distinction between “encouraging” or “urging” citizens to vote, and “brief exhortations” that are “incidental” to the rest of the communication.

Not too long ago, the FEC held a forum to air the parties’ complaints about this or other aspects of regulation and heard the leadership of both Democratic and Republican state parties protest that they were being overregulated and unable to function effectively.   But the FEC is unable to act, and there is no hope that Congress will do so any time soon.

Eventually, with no movement toward carefully considered statutory or regulatory reform, the courts may act for want of an alternative. Or perhaps they won’t, which will avert the constitutional doomsday some fear but leave in place a legal regime in serious disrepair and getting worse.

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