An August 7 court decision reveals the vapid reasoning behind the campaign finance regulation movement. By a 2‐to‐1 majority, a 2nd Circuit U.S. Court of Appeals panel ruled that a 1997 Vermont law limiting campaign spending is constitutional. That decision contravenes judicial precedent (notably the Supreme Court’s 1976 Buckley v. Valeo decision) that has found spending limits to be an unconstitutional violation of the First Amendment’s free speech guarantee. It also will ensure less political competition in Vermont, and, thus, less choice for Vermont voters.
As the Buckley decision established: “A restriction on the amount of money a person or group can spend on political communication during a campaign necessarily reduces the quantity of expression by restricting the number of issues discussed, the depth of their exploration, and the size of the audience reached. This is because virtually every means of communicating ideas in today’s mass society requires the expenditure of money.”
Nevertheless, campaign finance regulation activists, such as Paul Burns of the Vermont Public Interest Research Group, believe the Vermont ruling will send “shock waves across the country,” opening the door for spending limits in federal elections. In fact, the court’s decision is a case study in how badly our judicial and political elites evaluate the strengths and weaknesses of our campaign system. A few examples:
Political corruption. According to Circuit Judge Chester J. Straub’s majority opinion, the “corrupting influence of excessive fundraising and campaign spending” justifies spending limits. After all, says Straub, “Absent expenditure limitations, fundraising practices…will continue to impair the accessibility which is essential to any democratic political system.”
But the conventional wisdom regarding the extent of political corruption is plain wrong. Studies confirm that campaign finance regulators wildly overestimate the amount of actual corruption taking place in legislative offices and corridors. The importance accorded access to legislators is far too high. In practice, various points of public pressure on any given issue create a kind of political equilibrium. These competing interests are a good thing. As James Madison stressed, “Liberty is to faction what air is to fire.”
Political contributors follow legislators’ votes far more than votes follow campaign dollars. The unexciting reality is that most voting reflects the legislator’s ideology, his partisanship, and his perception of his constituents’ interests. Political competition. Our government suffers from the handicap of a largely uncompetitive political system. The advantages of incumbency are not only important, their importance has risen over time, especially since the passage of the first package of comprehensive campaign finance regulations in 1974. In the most recent congressional elections, the reelection rate for House incumbents was 98 percent.
Extensive political science scholarship reveals what politicians recognize at first glance: It is difficult for a challenger to oust an incumbent unless the former spends at least as much as, and probably more than, the latter during the campaign period. Only by spending large sums on television advertising, direct mail solicitations, and grassroots organization can a challenger develop the levels of name recognition, issue identification, and voter mobilization to catch up with the years (frequently decades) of subsidized campaigning and pork barrel spending that characterize an incumbent’s terms in office. Therefore, spending limits will minimize the opportunity for challengers to defeat incumbents thereby further diminishing political competition.
The role of government. The campaign finance regulatory cure, as commonly prescribed, is far worse than the disease. As the disease is misdiagnosed, the cure could be fatal. Contrary to conventional wisdom, the most important factor driving campaign spending upward is Big Government. Taxes and regulations have increased the size and scope of government at all levels. Increasing government activity leads to more efforts — including spending on campaigns — by private individuals, businesses, and organizations to avoid the negative fallout from political decision‐making.
As such, efforts to restrict campaign spending will be futile. The only sure way to lower campaign spending would be to restrict government to its constitutionally mandated role. Although writing laws that constrain the government behemoth are beyond the power of the judiciary, they are the mandate of the legislative branch in a country dedicated to both economic and political freedom. Sadly, the chances of our political class recognizing and accepting this challenge remain slender.