Taking the Campaign Reforms to Court

Wednesday, April 30, 2003

The Bipartisan Campaign Reform Act of 2002 is now before the federal courts on an expedited schedule. An initial decision had been expected months ago, but as of this writing (late April) the special three-judge panel hearing the matter has yet to publish its opinion. The Supreme Court is expected to take an appeal immediately, but will be hard-pressed to complete its work this session, even though that is the present plan.

Various plaintiffs argue that several provisions of the act are unconstitutional, particularly those that would inhibit the rights of “interest groups” to communicate the positions of candidates for office. But one plaintiff—Representative Ron Paul, a Texas Republican, and his associates—urges the court to throw out virtually the entire act, as well as the Federal Election Campaign Act of 1994, as constituting unconstitutional restraints on freedom of the press—the right of everyone to communicate their views on any subject, without prior government approval.

How would political campaigns proceed if laws against fraud, vote stealing, and such were maintained but restraints on freedom of the press and other provisions that suppress the competitive vigor of campaigns were abolished? Much more efficiently and effectively than at present and relatively free of the unsavory practices critics are likely to point to as the inevitable consequence of any freeing up of current legal and regulatory requirements.

The critics will say that with no limits on contributions, total expenditures on federal campaigns would be exorbitant. Judged by spending on the commercial market analogue—advertising—this is very unlikely. Current spending on federal campaigns per dollar of federal spending is at most only half of what is spent on advertising per dollar of sales in the commercial sector.

They will also say that without limits on contributions some groups in society would have “undue influence” on elected officials. Sure, interests could contribute more, but to some extent their contributions would cancel out, as others, with opposite interests, competed for favors. On the other hand, “interests” and others would have viable alternatives to “purchasing” influence with elected officials—supporting challengers.

Third, critics will say eliminating the limits on contributions would lead to more corruption in political contests. Yet the evidence suggests otherwise. Virginia and Texas have no limits on individual contributions in statewide elections, and there appears to be no more corruption in these political markets than in states having strict limits on contributions.

Without limits on contributions and restraints on how campaign money may be used (such as the form and content of messages), political markets would be much more competitive. Challengers would find it much easier to accumulate the resources necessary to mount effective campaigns. To a considerable extent, it really doesn’t matter how much money incumbents acquire, for what is critical is that challengers obtain enough money to communicate their messages.

The absence of a requirement for candidates, in effect, to obtain a federal license before running for office (establishing a committee, choosing a treasurer, making periodic filings, responding to inquiries, etc.), and the removal of threat of prosecution because of violations of highly technical laws with which few are familiar, would make it possible for more citizens to run for federal office. Also, with more resources with which to make a run, candidates would be better able to communicate their agendas and their qualifications.

In a more competitive political market, elected officials would be more accountable. Without the assurance of so many contrived advantages in election contests, incumbents would no longer have so much “freedom” to ignore the wishes of their constituents. They would have less room to maneuver and would be less responsive to interest groups.

For those who believe transparency with respect to contributions is highly prized, there would be a “market test”: Those seeking office might publish their contributors (and amounts) on the Internet, as Governor George W. Bush did when he ran for president. This could be a ready source of differentiation among candidates and an important selling point. Candidates could do other things, such as refuse to accept funds or limit contributions from business, labor, or other interest groups if they thought such tactics would increase their chances for election.

A system allowing full freedom of the press in which anticompetitive campaign laws and regulations were eliminated would not degenerate into “the law of the jungle.” To the contrary, political markets would be more orderly and far more responsive to the interests of the electorate.