Money, Politics and the Supreme Court

June 3, 2008 • Commentary
This article appeared on Politi​co​.com on June 3, 2008.

Wouldn’t it be great if politicians lived up to the limits and demands they placed on the rest of us?

The McCain‐​Feingold bill, now codified as the Bipartisan Campaign Reform Act, specifies that individuals may contribute a maximum of $4,600 per election campaign to a presidential candidate. The act’s prime mover, Sen. John McCain (R‐​Ariz.), apparently hoisted by his own petard, now wants individuals to donate $70,000 to various fundraising accounts that will find ways to channel the money in his direction. Of course, McCain is not the only presidential candidate who decided to circumvent the Bipartisan Campaign Reform Act. Both President Bush, who signed the legislation, and Sen. John F. Kerry (D‐​Mass.), who supported it, used similar accounts during the 2004 election.

One of McCain’s fundraising accounts raised $317,000 in a single day from a few Wall Street bankers and consultants. Out of each $70,000 contribution, $2,300 will go toward McCain’s primary campaign; another $2,300, to his general election campaign; $28,500, to the Republican National Committee, which will spend the money on his behalf; and the rest, to key state committees.

So much for McCain’s own 2002 admonition: “It is self‐​evident that contributions from a single source that run to hundreds of thousands of dollars are not healthy to a democracy.” Yes, the accounts are perfectly legal — but only because politicians such as McCain haven’t gotten around to closing all the loopholes. Nor could they. Campaign finance reform is like pushing on a balloon: The quantity of air, like the amounts contributed to campaigns, is not diminished; it simply occupies a different space.

Meanwhile, Bill Clinton and Hillary Rodham Clinton reported earning a paltry $109 million over the past eight years, of which $20.4 million was earned in 2007, as the 2008 election season unfolded. Where did the money come from? Well, Bill gets up to a quarter of a million dollars per speech, which has generated nearly half of the $109 million total. Did those who paid such enormous fees expect access and influence in a Clinton II presidency? And what about access and influence for Ronald Burkle, the billionaire investor and supermarket titan whose partnership with Bill Clinton yielded an estimated $12 million to $15 million in advisory fees for the Clinton coffers? Or Vinod Gupta, whose InfoUSA database company threw off another $3.3 million as payment for Bill Clinton’s consultations? Gupta, by the way, has been sued by some of his shareholders for improper fees and jet travel related to the Clintons.

Maybe the Clintons are simply exploiting their fame and connections and have promised no political favors. I have seen no evidence that suggests otherwise. Then again, according to the Supreme Court, it’s not necessary to prove actual corruption to justify Congress’ campaign finance restrictions. The “appearance” of corruption is quite enough. That’s what the court held in McConnell v. Federal Election Commission in 2003. Essentially, said the court, preventing the appearance of corruption is a sufficiently important governmental interest for Congress to disregard First Amendment protections of political speech.

But instead of preventing either actual or apparent corruption, the real effect of the regulations upheld in McConnell has been to protect incumbents from upstart challengers. The careers of sitting politicians are more easily perpetuated if the speech of their opponents can be repressed. The architects of modern campaign finance laws have never produced any evidence either of corruption that allegedly results from privately financed campaigns or of wealthy individuals or companies “buying” elections.

Instead, reformers merely assert a litany of potential horribles to rationalize their opposition to the current system. They favor a managed system, one that is managed by their rules, according to their standards, and designed to achieve their ends, which do not include a vigorous and free marketplace for political expression.

As for money in political campaigns, it’s just a symptom of two larger problems: too much government power and too much government money that can be doled out to those whom politicians favor.

Overweening government has wormed its way into nearly every aspect of our lives, and our pervasive regulatory and redistributive state creates huge incentives for profiteering. If you want to minimize the influence of big money on officeholders and candidates, the answer is to cut the size and power of government. Until we do that, we need to restore free political speech by razing the ineffective and unconstitutional structure condoned by the Supreme Court in McConnell.

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