Friday, December 30, 2005

Silly Libertarians

I was really hoping this article/speech by Bradley Smith, former FEC commissioner, would give me a chance to discuss the substantive objections to campaign finance reform. Then the guy referred to the Microsoft antitrust litigation as a "seemingly senseless regulatory legal assault" intended to extract campaign contributions from Microsoft. Uhh, right. It's amazing how quickly a person can drag their credibility through the gutter.

Smith's analysis of the harms of unregulated campaign money is largely limited to efforts to find quid pro quo returns on investment for corporate contributors. He takes this as far as analysis of the stock market reaction to McConnell v. FEC for companies that make political soft money contributions. What is this supposed to prove?

This sort of analysis is overly complex and makes it difficult to produce any sort of meaningful empirical data. What sort of scorecard do you use here? There is plenty of anecdotal evidence of influence (not least of which the Microsoft example that Smith himself raised). Smith acknowledges that the data he presents has many critics, but claims that since they don't have better data, that makes his data somehow valid.

A simpler analysis is this: our system is based on democratic, one person-one vote principles. Does campaign money subvert those principles? Does it give influence beyond one-vote to big money donors?

In this view the analysis of harms should be considered from the other end. Does the money influence election outcomes? According to, the odds of a challenger for a house seat in 2000 beating an incumbent were nil for challengers who raised under $500k, 24:1 for challengers with $500k-$1m, 15:1 for challengers with $1m-$1.5m, and 3:1 for challengers with over $1.5m. That looks a lot like influence. Obviously there are still confounding factors here (primarily that one might suppose that campaign money flows to more attractive candidates). But this seems like more meaningful data than the sort referenced by Smith. Additionally you've got quotes like this one (one of my all-time favorites) from Senator Fritz Hollings:

"The body politic has got a cancer of money. I ran in 1998, and I raised $8.5 million. That's about $30,000 a week, each week, every week, for six years. If I missed Christmas and New Year's weeks, I'm $100,000 in the hole. So the race begins the next day [after your election]. We're collecting for six years out. That means we don't work on Monday. We don't work on Friday. I've got to get money, money, money, money. And I only listen to the people who give me money. With the shortage of time and everything else, you've got to listen to the $1,000 givers. I mean, no individual is corrupt, but the body has been corrupted."

It seems, to me at least, fairly obvious that money impacts election results. It seems also obvious that this gives political power to people who wield that money. That is problematic for a one person-one vote system. Smith never discusses this problem.

But he does talk about other evidence of corruption, apparently to show that BCRA is insincere. The hiring of spouses and children of politicians as lobbyists, contributions to personal foundations, and book contracts, for example. Frankly this only amplifies the need for regulation of money in politics. If anything this should support expanding BCRA into broader territory.

Smith criticizes McCain for speaking at a fund-raising dinner for the Brennan Center that raised money to support BCRA and to help defend it against McConnell's legal challenge. Apparently McCain also raises money to support campaign finance reform through his own Reform Institute. This is the sort of self-defeating argument often leveled at McCain and Feingold and other finance reformers: how can they argue for campaign finance reform when they accept the sort of contributions they argue against? A better question would be: if their argument is premised on the fact that the current political environment makes it necessary to raise large sums of money to get anything accomplished, how could McCain and Feingold hope to accomplish anything without raising money? Only people in the system can change the system. They have to play the game to change the rules. And ultimately this is not a discussion of the substantive merits of the issue anyway. It is merely smear attack against proponents of reform.

Here's an interesting thought I'd like to see some of these folks discuss. The Supreme Court appears to be increasingly coming under the control of Scalian originalists. There is a strong argument to be made that the original meaning for the First Amendment was merely to prevent prior restraint of speech. This was a system used in England where printers needed to get prior government authorization of material to be printed. The Sedition Act of 1798, for example, seems to our sensibilities to be a clear violation of the First Amendment. But no one seriously thought it was a violation at the time, and the courts never struck it down. The Republican (Jeffersonian) reaction against the Act was politically motivated (it was a Federalist device to squelch Republican press) and focused on the issue of federalism rather than the First Amendment. It did not implement prior restraint, and it allowed truth as a defense. This was free speech as compared to the English system. An originalist interpretation of the First Amendment would create a tremendous amount of breathing room for campaign regulation. I wonder how keen some of the conservative court cheerleaders would be for that..

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