Michael Malbin replied yesterday, on the election law listserv, to the posting here that questioned the current despair over the state of the presidential public financing system.  His response can be found, with his consent, here. 

     Professor Malbin does not believe that the differences between us are nearly as significant as they may at first appear.  While I suggested that there was no harm in trying to keep the system alive, but that it should include "stingy" subsidies without spending limits, Professor Malbin’s proposal also places its emphasis more on resources than on limits, which are removed altogether when a participating candidate  faces one who has "opted out."  The one material difference, it is fair to say, is this: Professor Malbin is highly committed to the system and its goals, while I neither agree with the major premises underlying this commitment, nor share his confidence about the effects of further reform.

     The differences between us begin with Mr. Malbin’s concern to preserve "competition," motivating him to support providing public money for the "underdog" candidate.  I mentioned McCain and Buchanan, who appear on his list; and Malbin names others, such as Ronald Reagan, Richard Gephardt, Paul Tsgongas, George H.W. Bush and Gary Hart.  It is true that a number of these entered Presidential competition as "underdogs," rated unlikely to succeed, but it is not obvious why we should care so much that public money should have been made available to float their candidacies.  Consider, for example, the current President’s father.  Here was a man with every conceivable advantage, who had graduated from the finest schools; held a seat in the Congress; and worked within the higher levels of his party (indeed, chaired it) and the inner councils of Government.  Bush 41 had money and connections—a wealth of political capital.  If he was an "underdog" in l980, it was surely a position he had deserved.  Yet he "qualified" for public matching funds, and he took them:  both as a candidate for President, and even more notably, 12 years later, as the President running for reelection. 

     This is the extreme case, but a similar point could be made about any senior elected official, especially those with extensive political histories and experience, who are unable to raise enough money "to be heard."  It is hard to think of US Senators as "underdogs," although they might well be poorly equipped to make a competitive Presidential run:  a weak political position does not make them an "underdog" so much as it may suggest an inability to lead on issues, or build the constituencies, on which a successful Presidential candidacy is built.  The availability of public money, on easy terms, actually supplies potential candidates with a disincentive to creating, on their own, the conditions for viable campaigns.  In a number of cases, such as Gary Hart’s in l984, it encouraged candidates to enter the race who had been unwilling or unable to build national political networks—only to find that the press, judging them "loners" or parvenus, held this very fact against them.

     A common fallback position is that the publicly funded underdog "tests" the frontrunner, which is supposedly superior preparation for the general election.  This seems a weak justification for the expenditure of millions of public funds—or for the distress over the deterioration in the effectiveness of this "system."  No doubt the frontrunner is sorely tested by sharing debate stages with pesky insurgents, one-liners in hand but with no chance of winning, who are utterly dependent for much of their very respectability on the public fisc.  As a test, this seems quite contrived, and unrelated to any meaningful measure of the frontrunner’s suitability for high office or readiness for true general election competition.  The Government need not administer at public expense the functional equivalent of training academies for leading politicians.  Politics always arranges for the testing of its practitioners.  Well before the public funding system came into being, Truman faced Kefauver, just as Johnson was effectively tested by McCarthy; and McCarthy was then pressed hard by Bobby Kennedy.  In one or the other party, or in both, the l960, l968 and l972 campaigns featured rigorous tests of their own, none of them publicly financed.  There are many examples of this, still farther back in time.

     Professor Malbin is right that the system can be amended to address some of the complaints that John Kerry has lodged against the system.  When it is amended, however, it is entirely likely that new complaints will surface in place of the old ones. This is because campaigns cannot be designed to produce results compatible with an ideal: "serious" candidates heard on the "issues" in fully "competitive" elections funded to some significant extent by the "small donor."  

     This is also the reason why Professor Malbin is only partly right to say that his proposal stands for "less regulation, not more."  CFI’s proposal is a regulatory proposal in the critical sense that it hopes, by a mix of statutory incentives and constraints, to produce a political outcome consistent with articulated public policy objectives.  Only by emphasizing the incentives, which include a relaxation of some of the current restrictions, is this proposal "less" regulatory:  but it is still highly regulatory, in the sense that it assumes that Government can both envision and then enact into law the conditions for a better politics.

Bob Bauer