In the last two days, the election law listserve has crackled with contention over Internet regulation specifically, but over campaign finance reform as a movement more generally.  Allison Hayward supplies a little flavor of the back-and-forth.

     Participants included academics, lawyers, reform activists and bloggers.  Cyber-tempers were short.  Then, apparently to stave off hard feelings, the suggestion was made that the two sides could ease their mutual distrust with improved communication.  Maybe there was room for dialogue; maybe only a failure to communicate could account for the mutual suspicion and shrill exchanges.

     Surely communication could improve—can’t communication always improve?—but if it does, it will illuminate the differences without limiting their number or diminishing their severity.  This is because the “reform” and political communities have outlooks on the world— conceptions and images of politics—that are fundamentally antagonistic.  When this clash is expressed in juridical terms it is oversimplified as one between different understandings of the First Amendment; this manages to convey only a highly limited picture of the conflict as a whole.

     For the political community—the community of individuals and organizations that try to move votes and win elections—politics is all struggle, waged all the time, by all the means that it can muster.  It is unending, disorderly, untidy.  Speech is one weapon in this competition, and it is wielded with force, in various forms, and issued as required in the volume, and with the frequency and repetition, that the changing shape of the battlefield requires.  There is no anxiety about “negative” speech, if it is effective speech; there is no commitment to “debates,” if debates are more to the opponent’s advantage.  Money is needed, badly; there is never enough, even if not all of it needs to be spent as soon as it is raised.  The activists' work is best done when least constrained:  when there are no artificial limits placed on access to resources or the means or style of communication or the supply of available tactics.

     For the reform community—the community of legislators, academicians and organizations dedicated to effecting and policing reforms—politics is latent with dangers, and it requires all manner of control to assure that it is conducted responsibly, under limits, toward the end of sound policy and good government.  Money must be controlled so that it does not pollute:  too much keeps candidates busily raising money when they should be reading and debating policy proposals, and the more money they raise, the more “beholden” they may be.  The concern is that politics will overwhelm the merits, breeding the conditions for bad policy.  This is why the quality of speech matters to reform advocates:  “negative” speech, effective in running elections, is a dagger thrust at rational government.  Irresponsible argument is the parent of irresponsible government.

     With the advent of major academic support and foundation funding, reform advocates have perfected the means for an “objective” defense of their program.  Much of this is drawn from the social sciences:  politics as a problem can be probed with the instruments of social scientific analysis, disassembled into “data” on which analysis of a “problem”, clearly requiring a “solution,” can be securely based.  The measurements done now range over the whole field of politics—the amounts spent, when and how, in considerable detail, and even the impact of this material on the voters, as in the Buying Time studies submitted to Congress and to the McConnell courts to prove that voters could not distinguish candidate from issue advertising.  Those who are interested in this development should read Thomas Mann’s Linking Knowledge and Action: Political Science and Campaign Finance Reform.  Its abstract provides an instructive preview:  ”The 2002 enactment of the first major reform of U.S. federal campaign-finance law in a quarter century featured a more substantial engagement of political scientists—through research, public advocacy, and expert testimony—than had been the case in the past.”  

     A combustible stage has been reached in the post-BCRA era, when it appears that regulatory fervor has not cooled, may never cool.  Now there is trouble on and with the Internet:  it is being examined, and it is proposed to be regulated, as a new carrier for corruption, manipulated for this purpose by the “agents” of circumvention.  Now 527s are also a fresh danger, prudently (even urgently) to be subdued with new rules.  In this last case, corruption is not the only cause, and it may not even be the chief one, for there is a growing acceptance, even among 527 critics, that they run quite independently of candidates and parties, serving instead the ideological commitments of wealthy individuals.  This is apparently still a problem:  a problem of too much money spent “outside” the system, repaying the wealthy with too much say over the course of politics. 

     Political activists, in parties and elsewhere, now understand, in some cases very late, that this regulatory program is effectively without limits.  Already some reformers who exhausted all use of the “corruption” rationale are developing substitutes:  equality, or voter information, or competition, and still others.  The statutes and rule books thicken and litigation runs on:  Congress is poised to encourage more of the same.  All of this complexity, not to speak of the cost of mastering it, weighs heavily on the political community’s work.  As the community adapts, the adaptation also comes under attack, assailed as the mining of “loopholes” and the pursuit of “circumvention.” 

     It should not be surprising that the hostility between these communities now runs high, and there is little chance that communication will reduce its level or result in the discovery of much common ground.

Bob Bauer