This is the title of a debate, sponsored by the Legal Affairs Debate Club, about the Supreme Court’s consideration of campaign spending limits enacted by the State of Vermont.  Two distinguished scholars, James Miller and Richard Briffault, appear on two sides of the question: where one sees speech, the other sees the potential for corruption and diminished democracy, and these differences account for their conflicting views of the constitutionality of expenditure limits.  This is familiar disagreement, now decades old.  

      But the question posed by the title—"who controls campaign finance?"—may be the more interesting one, under at least one reading.  That is this question:  who should decide—who is responsible for judging the need for—campaign finance controls?

     The case before the Court will test, once again, the extent to which courts will defer, as the Supreme Court in McConnell suggested that they should, to politicians.  This deference has been taken to farcical extremes, as the excuse for overlooking the fairly plain self-interest of legislative decision-making.  Justice Breyer argues that we should not be alarmed:  as candidates and elected officials, legislators are "experts," well familiar with corrupt practice, and we are asked to assume that they will apply this expertise in the public interest and not their own.  The Supreme Court has been willing to entertain as expert testimony "affidavits" from legislators offering their personal opinion about the corrosive effect of money on the political process.  See McConnell v. FEC, 540 U.S. 93 (2003); Nixon v. Shrink Missouri Gov't PAC, 528 U.S. 377 (2000).  So it is that legislators are heard with a healthy skepticism on every subject, high and low; but should one of them, in advocating campaign finance reform, denounce herself and her colleagues for countenancing corrupt political practice, she will have won instant credibility. 

      Problems with legislative self-interest are not solved by blind faith in the Courts.  It has become increasingly obvious that courts revel in simplistic, largely derogatory portrayals of the motivations and conduct of the elected branch.  Judges no less than others seem captivated by the popular view of the political process as infected by low motive from top to bottom.  Some may carry painful memories from, say, their confirmation processes; others are likely molded by the same day-to-day contempt for the political process found in the daily and periodical press.  In any event, the opinions of even our Supreme Court display a faux sophistication about the political process—an ostensibly worldly understanding of the political process and its vices, which oddly produces the conclusion that the villains of the piece should lead the fight for their own reformation.  The cases decided by the Supreme Court—and others—in recent years are undoubtedly significant, because they carry all the force imputed to constitutional law, but they are not consistent, coherent or credible.

      Among observers of campaign finance, there is a wide, if rarely admitted, understanding that neither the Court nor the Congress have proven capable of persuasive, lucid treatment of these issues.  For reformers, this problem has been solved in part by designating a special leadership elite, known as the "sponsors," who have spearheaded the leadership reform effort of recent years.  What the sponsors claim is a special and unspoiled authority in the matters, a passion for reform without the disqualification of self-interest.  Their work is supported by think-tanks formed to advance the cause:  it is in this direction, to a community of professional reformers, that they look for the substance of their regulatory and legislative proposals, and for representation in litigation. 

The sponsors stand apart from the crowd, or more to the point, above it:  and this altitude is partly maintained by the admiration they command in the elite press.  The control they propose to exercise is so extensive that it now includes attempted micro-management of the regulatory process.  When they are not assailing the FEC for incompetence or corruption, the sponsors and the organizations representing their interests counsel the agency on the proper interpretation of the law; and when the FEC’s decisions displease them, they sue, changing venue to the hospitable terrain of the courts.
 
   The control of campaign finance has become more specialized, elite and remote from the participation and comprehension of the voters and candidates and parties and political organizations.  This has not meant any evident progress toward any of the goals, such as a government free of "scandal" or enhanced voter trust of government, long held dear by reformers.  This last Sunday, appealing for a more decisive charge up the hill of "money in politics," former Senator Fritz Hollings issued once more his call for a constitutional amendment simply authorizing Congress legislative spending limits.  Ernest F. Hollings, "Stop the Money Chase," Washington Post (Feb. 19, 2006) at B7.  The Senator wishes that we "Let Senators be Senators," free of the emotional trials and time pressures of fundraising. 

     Whatever may be thought of the objective of the exercise—a sort of liberation of Senators and other public officials—a constitutional process, for all its sensitivities, would certainly enlarge, to a national scale, the community of participants in the debate.  There are worse answers to the question of "who controls campaign finance?", as we well know from the experience of recent years.

Bob Bauer