Over the last couple of days, in blog postings, the election law listserv and the press, the question of heavy spending in the c oming Presidential campaign has been taken up, from different directions.  Paul Ryan of the Campaign Legal Center turned his critical attention to extended “exploratory activities” by candidates, also protracted, expensive and paid—more or less—“off the books”, since much of this activity is financed through state or federal leadership PACs. Later the question was put to the list: why are candidates turning away from general and not only primary election public funding?  This morning, The Washington Post adds, with an unmistakable note of awe, a front page story about how early this private spending has occurred and how much is still to come.

   The “billion dollar” Presidential is much on the mind of the journalistic and reform community.  Counting up the money is always steady work for reporters, and now there is even more of it to count.  For editorialists and reformers, though, the numbers tell a somber tale; many join Paul Ryan in his belief that behind the data lurk policy conundrums and legal controversy.  Some in Congress are pressing for a “fix” to the Presidential public funding system; the Senate has approved special disclosure rules for the “bundling” that will rise in importance along with the costs of campaigns; and Paul Ryan, looking back, wishes for some controls on sneaky exploratory activity.

   There is only so much that the law can be asked to do here.   Presidential campaigns, including the lengthy preparatory period scrutinized by Ryan, are expensive, and the expense, one might say, is proportionate to the prize. Candidates may overspend but they do not do so casually: they are raising and spending the money necessary, in their judgment, to compete, and inasmuch as the burden of raising the money falls on them, this is hardly a judgment they pass lightly.  The public, a small percentage of which checks off a few dollars for cause, is not interested in paying these costs.  Broadcasters, including those with national news operations hot on the trail of all this spending, have successfully resisted subsidizing the candidate advertising. 

   Candidates (and parties) are stuck with this bill.  For all their trouble, their every step in raising the money is dogged by questions of how much they have raised and the means they have used.  Since critics object, fundamentally, to the amount of money raised, they imply that candidates are bingeing, lost in a senseless, madcap fundraising bender.  They are led to the further conclusion that this money could not be raised altogether legally—and if legally, not appropriately-- in a system of legal limits.  Heavy spending does not merely encourage risk-taking with the law; it signifies the high likelihood that the law is not being observed, or that it is being skirted.

   Paul Ryan argues this point in his retrospective on exploratory efforts now drawing to a close.  It is clear to him that if candidates were at least honest, they would concede that their “leadership PAC” activity was  largely a fiction.  Ignoring limits on contributions and, in some cases, on the use of soft money, the candidates simply run undeclared exploratory campaigns for years prior to owning up to their true purpose.   Ryan despairs of the law’s capacity for controlling this behavior.  He does not see how, in the “real world”, the FEC’s “regulatory structure” can readily establish when an individual is engaged in general politics or is actually “exploring” a possible Presidential campaign.  But Ryan wishes it were otherwise.

   Of course, it cannot be otherwise.  Politics simply refuses the space it is offered in the tidy categories constructed by regulators.  The law that limits spending “for the purpose of influencing a Federal election” has set itself a goal that it cannot possibly meet.  Elections are always on the horizon; the work of preparing for them, which is expensive work, occurs over the span of four years.  Candidates in waiting are active over this period: which call, which travel, which meal with a potential supporter, is not, in some sense, “for the purpose of influencing” the future election?  The law could not possibly be applied on a rational basis to restrict this activity, and it would not be productive if so applied. 

   For if this work must be done, someone must pay for it.  To shut it down, or to tax it with regulatory interventions, is not merely futile.  It is irresponsible.  It both acknowledges the cost of these activities—which Ryan, at least implicitly does—and proposes to enforce a diet of resources it knows, or should know, to be insufficient.   Candidates are criticized for their efforts when they are also left with only those efforts to fall back on. 

   This is also something we should be “honest” about.