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Political Science Quarterly
"A thoughtful antidote to the exalted status accorded campaign finance reform."
— James E. Campbell
Is campaign finance reform really good for our democracy? John Samples says no, and here takes a penetrating look into the premises and consequences of the long crusade against big money in politics. How many Americans, he asks, know that there is little to no evidence that campaign contributions really influence members of Congress? Or that so-called negative political advertising actually improves the democratic process by increasing voter turnout and knowledge? Or that limits on campaign contributions make it harder to run for office, thereby protecting incumbent representatives from losing their seats of power?
Posing tough questions such as these, Samples uncovers numerous fallacies beneath proposals for campaign finance reform. He argues that our most common concerns about money in politics are misplaced, and that the chance to regulate money in politics actually allows representatives to serve their own interests at a cost to their constituents. And, ironically, this crusade against the corruption caused by campaign contributions allows public officials to reduce their vulnerability by suppressing electoral competition.
Defying long-held assumptions and conventional political wisdom, The Fallacy of Campaign Finance Reform is a provocative and decidedly nonpartisan work that will be essential for anyone concerned about the future of American government.
“As the federal government’s size and intrusiveness grow, so does its attempt to regulate—ration, really—political speech about the government's composition and behavior. John Samples sees the menace of this through the prism of political philosophy. This book is a lucid and urgently needed warning about a growing assault on the First Amendment and the entire Madisonian understanding of American politics.”—George F. Will
"A thoughtful antidote to the exalted status accorded campaign finance reform."
— James E. Campbell
"A wonderful volume that debunks pretty much everything that one hears from modern 'good government goo-goos.' From his astute analysis of the seemingly eternal Progressive Movement to his citing of study after study that demonstrate that legal campaign contributions do not 'corrupt' the political process."
— William L. Anderson
"As the federal government's size and intrusiveness grow, so does its attempt to regulate—ration, really—political speech about the government's composition and behavior. John Samples sees the menace of this through the prism of political philosophy. This book is a lucid and urgently needed warning about a growing assault on the First Amendment and the entire Madisonian understanding of American politics."
On March 20, 2002, the United States Senate, by a vote of 60 to 40, passed the McCain-Feingold Act, otherwise known as the Bipartisan Campaign Reform Act of 2002. Because the House of Representatives had already passed it, the bill needed only President George W. Bush's signature to become law. Despite his past promises to the contrary and urgent pleas from leaders of his political party, Bush signed the bill into law on March 27. He described the bill as "flawed," however, and refused to hold a public ceremony for the signing, a typical ritual for major legislation. The law's chief sponsor, Senator John McCain (R-AZ), learned about the signing from a White House staff member. Afterwards, Bush left for a three-state fundraising trip for Republicans. Later that same day, opponents filed suit in federal court seeking to have the new law declared unconstitutional. After five years of struggle in the legislature, the fate of the new law shifted to the courts. Near the end of 2003, McCain and his allies would also win in that forum. The partisans of the law rejoiced.
In the pages that follow I argue that the victory of McCain-Feingold-indeed, the sheer existence of almost all federal campaign finance law-is reason for lamentation, not rejoicing. For more than three decades the federal government has widened itsambit over the financing of electoral struggle, making everything from small contributions to advertising for political documentaries a matter of government control and oversight. Today no one should exercise his or her First Amendment right to freedom of speech without advice from counsel, preferably one schooled in the intricacies of campaign finance regulation. In the United States, speech is no longer very free in any sense of the word.
How did we reach this point? As always with restrictions on free speech, political ambition and interests tell part of the story. "Freedom of speech for me, but not for thee" expresses an enduring truth about politics and human life. Public opinion also lends less support for First Amendment rights than we might like to think, particularly for protections related to campaign finance. Money, most people seem to think, has little to do with freedom of speech or other rights enunciated in the Constitution.
Most people are wrong.
You are reading these words right now because of money. The University of Chicago Press has spent tens of thousands of dollars producing this book. If the government restricted that spending, my and their right of freedom of speech would be limited, perhaps to the point of silence. Your right to learn about and consider the ideas in this book would similarly be restricted. Those who donate to the Cato Institute supported my work on this book. If the government restricted or prohibited such contributions, this book might well have not been written. The fact that donors give to the institute to support this and other work concerning public affairs commends the value of liberty and libertarian policies to other citizens. Money talks in many ways in elections as well as in writing about public policy.
Many people would rather not listen. Some Americans would have been happier if this book had never been written, and if written, not published, and if published, not read. Most people support campaign finance "reform" because they believe it will apply to people and ideas they do not like. I myself have illiberal feelings from time to time about speech I find uncongenial. Apparently everyone has such feelings now and then. We have the First Amendment to constrain the consequences of those feelings, thereby lending strength to the better, or at least more liberal, angels of our nature. Unlike most of us, members of Congress can and do act on such illiberal feelings. They also have powerful interests at stake in suppressing spending on politics, a conflict of interest that also evinces the wisdom of the First Amendment. In campaign finance matters, the illiberal feelings and political interests of public officials and many citizens are expressed in the language of high ideals and noble public purposes. To be sure, those high ideals also express noble aspirations and genuine concerns about the integrity of our politics. Such are the complexities of life in a mature polity. But we should not be misled into thinking that restrictions on campaign finance primarily seek noble ideals and a pure politics. We might begin to sort out the ideals and interests at stake by exploring the purposes behind McCain-Feingold.
Purposes of the Law
Public Law 107-155 (McCain-Feingold) runs for five titles and about thirty-five pages in the statute book. Setting aside the qualifications and verbiage, the law tried to change the world in three major ways. It prohibited fundraising by the political parties (so-called soft money) that had previously been legal. Henceforth, the parties would have to raise funds strictly within the contribution limits and disclosure requirements set by federal law in 1974. McCain-Feingold also doubled those contribution limits. Finally, the law sought to expand the ambit of federal election law to include fundraising for certain kinds of broadcast advertising that had previously been exempt from the requirements and restrictions of the law. Forgetting the trees to see the forest, one can say that McCain-Feingold expanded government control over the way Americans fight federal elections.
McCain-Feingold says little about its purposes beyond providing "bipartisan campaign reform." According to the American Heritage Dictionary, the noun reform means "a change for the better; an improvement" and "correction of evils, abuses, and errors." The law does not explicitly define the "evils, abuses, and errors" it proposes to correct. Its first title does take as its goal "reduction of special interest influence," but it does not define those interests. One might infer that they are known by what they have done: giving money legally to the political parties that is not captured by the restrictions of federal election law. So defined, the special interests would be no longer once the law went into effect because they would no longer be legally able to donate soft money. But that is just a guess. McCain-Feingold itself is silent about the identity of the special interests that are the targets of its strictures.
If we look beyond the law to the speeches made in the Senate in its defense, we see that its supporters expected that the new law would accomplish many purposes.
Curbing Special Interests
Today's vote ... is about curbing the influence of special interests. Now is the time to enact real reform and return the power to the people and restore their faith in the Government. (John McCain)
It is a key purpose of the bill to stop the use of soft money as a means of buying influence and access with Federal officeholders and candidates. Thus, we have established a system of prohibitions and limitations on the ability of Federal officeholders and candidates to raise, spend, and control soft money. (John McCain)
Ending the Appearance of Corruption
When the very people who have legislation before you are coming to you with greater and greater amounts of money for your political campaign, that creates a potential conflict of interest that we simply do not need. It does not look good. The American people think, the average Joe on the street thinks, that with that much money being paid to that few people, they are expecting something for it. (Fred Thompson)
Reducing Some Kinds of Political Advertising
It curbs issue ads, those special interest ads that clearly target particular candidates in an attempt to influence the outcome of an election. (Thomas Daschle)
This bill is about slowing the ad war. It is about calling sham issue ads what they really are. It is about slowing political advertising and making sure the flow of negative ads by outside interest groups does not continue to permeate the airwaves. (Maria Cantwell)
If you cut off the soft money, you're going to see a lot less [attack advertising]. Prohibit unions and corporations [from making soft money contributions] and you will see a lot less of that. If you demand full disclosure for those that pay for those ads, you're going to see a lot less of that. (John McCain)
[It will eliminate] huge contributions that distort the democratic process. (Jean Carnahan)
If we look at the rising tide of money in politics, the influence that money buys and the corrosive effect it has on people's faith in government, the answer, then, is clearly no. Ours is a government "of the people, by the people, and for the people." It is not a government of, by, and for some of the people. With this vote, we stand on the verge of putting the reigns of government back into the hands of all people. (Thomas Daschle)
This bill ... will make many needed changes to our campaign finance system and reconnect the electorate with their candidates for federal office. (James Jeffords)
Working with our friends in the House, we have drafted a bill that promotes important first amendment values, promotes enhanced citizen participation in our democracy, is workable, and is carefully crafted to steer clear of asserted constitutional pitfalls. (John McCain)
Increasing Political Equality
It will cleanse our politics and make it possible for the voices of ordinary Americans to be heard. (Jean Carnahan)
[It is the first step to] getting big money out of politics. (Paul Wellstone)
Regaining Control of Campaign Finance
We are moving to get control of a system that is out of control. (Barbara Boxer)
No wonder there is a strong sense that campaigns in this country have spiraled out of control. There is a strong sense that elections are no longer in the hands of individual Americans. As the old saying goes, perception becomes nine tenths of reality. (Olympia Snowe)
Realizing the Public Interest
We in the Congress who have supported this effort know we have acted not out of self-interest, and not for the special interests but for the public interest. This bill is for the American people, for our democracy, and for the future of our country. (Russell Feingold)
Restoring Trust in Government
We are making headway to do something that will reduce the cynicism in this country that will help this body, that will help us individually. (Fred Thompson)
With this vote, we are one giant step closer to a new era of campaign finance, a new era of voter confidence in our government, and a new era of better and stronger democracy.... We have to restore the system of regulated contributions. If we don't, the cynicism and distrust and lack of engagement that are already so pervasive will continue to spread. Our citizens are increasingly tuned out from our democratic process. (Charles Schumer)
I have supported campaign finance reform for 18 years and I believe that even legislation that takes only a small step forward is necessary to begin to restore the dwindling faith the average American has in our political system. (John Kerry)
Increasing Electoral Competition
[It] will trade increased hard money limits for the reduction of soft money, a tradeoff that will help challengers reach a threshold credibility when they want to challenge us in these races. (Fred Thompson)
Improving Political Discourse
The currency of politics should be ideas, not dollars. It is time for us to start putting the currency back into circulation. (Thomas Daschle)
I am also pleased the bill includes an amendment that Senator Wyden and I offered to raise the level of discourse in campaign ads. (Susan Collins)
But I would ask the proponents of this argument whether what we are seeking in our democracy is electioneering that has no more depth or substance than a snack food commercial. Despite the ever-increasing sums spent on campaigns, we have not seen an improvement in campaign discourse, issue discussion or voter education. More money does not mean more ideas, more substance or more depth. Instead, it means more of what voters complain about most. More 30-second spots, more negativity and an increasingly longer campaign period. Less money might actually improve the quality of discourse, requiring candidates to more cautiously spend their resources. (John Kerry)
Reducing Spending on Elections
This bill forces all of us-candidates, parties, and groups that seek to influence the outcome of elections-to play by the same rules and raise and spend money in lower amounts. (Maria Cantwell)
A more extended reading of the Congressional Record might reveal more purposes for McCain-Feingold.
The Supreme Court has recognized preventing corruption or the appearance of corruption, providing public information, and preventing the circumvention of campaign finance law as legitimate reasons for restricting freedom of speech. We have reason to doubt that senators truly believed that the law addressed corruption: "Both Democratic and Republican members rejected any suggestion that the bill was required to address actually corrupt conduct, because they agreed that they were not responsible for any.... Senator Feingold advised his colleagues that they were required to cite corruption, regardless of whether it existed, to satisfy the demands of the Buckley Court. The diversity of views and rationales was such that, after Senator Specter introduced an amendment with a 'findings' section, in order 'to provide a factual basis to uphold the constitutionality of the statute,' he subsequently was compelled to withdraw it when agreement proved impossible." Even putting aside such bad faith, almost all the goals of the law mentioned by the senators are not sufficient to justify McCain-Feingold's core restrictions on political activity.
The statements by the senators reflect a larger set of political ideals that have informed debates about money in politics for more than a century. At one time or another, however, campaign finance restrictions have been proposed as ways to achieve all of the goals noted above. The senators quoted here were simply stating what proponents have always said would be accomplished by reform.
Political Visions and Campaign Finance
Those who demand restrictions on money in politics-the "reform community"-have dominated (and dominate) most public debates about campaign finance. They contend that money corrupts American democracy by perverting representation, undermining democratic political culture, lowering political discourse, fostering inequality, and reducing electoral competition. Democracy must be protected, they say, from the corruption brought by money and its owners.
Do campaign contributions and spending corrupt American democracy? Corruption implies a failure to live up to some ideal, and determining which ideals are relevant and the proper tradeoff among them depends on "the way the world should be," a conception that in turn comes from a set of political ideals that might be called a political vision. To understand the dispute over campaign finance, we need to understand the implicit visions of politics that are at stake in that debate.
The struggle is not a case of "we the people" against "they the corrupt," the nation against its enemies. It is a conflict between two political visions that have marked the development of the United States as a nation. The effort to restrict and "reform campaign finance reflects one part of American political culture, the Progressive vision of politics and its trust in government under the control of an ethical and enlightened elite. The Progressive vision, however, did not inform the founding ideals for the United States, which can be read in the Constitution and the Declaration of Independence and make up what might be called the Madisonian vision of politics. Those ideals may be summed up as natural rights, individual liberty, and limited government. The senators who opposed McCain-Feingold did so in defense of freedom of speech. They favored, in other words, limits on the government's power to regulate political activity, limits enshrined in the First Amendment to the Constitution.
Excerpted from The Fallacy of Campaign Finance Reform by John Samples Copyright © 2006 by The University of Chicago. Excerpted by permission.
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Preface Introduction: Money and Speech
Part I. The Conflict of Ideals
1. The Madisonian Vision of Politics
2. The Progressive Vision of Politics
Part II. Four Illusions
3. The Corruption of Representation
4. Political Culture
6. Electoral Competition
Part III. Realities
7. The Origins of Modern Campaign Finance Law
8. McCain-Feingold and the Market for Incumbent Protection
9. A Liberalizing Agenda Notes Index
Posted July 29, 2009
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