In this Texas Law Review article, authors Samuel Issacharoff and Pamela S. Karlan explain how campaign finance “reform” proposals often go awry. According to Issacharoff and Karlan, it doesn’t take an Einstein to discern a First Law of Political Thermodynamics – the desire for political power cannot be destroyed, but at most, channeled into different forms – nor a Newton to identify a Third Law of Political Motion – every reform effort to constrain political actors produces a corresponding series of reactions by those with power to hold onto it.
According to the authors, no area, however, can top the aborted reform agenda of the Federal Election Campaign Act (FECA) Amendments of 1974, as truncated by Buckley v. Valeo, for their paradoxical ability to bring about perverse consequences. A quarter-century after FECA, the conventional view is that American politics is more vacuous, more money driven, and more locked up than ever. As a result of past regulatory efforts, campaign finance reform is now its own cottage industry with innumerable proposals for statutory and constitutional change and corresponding debates about how some immaculate vision of politics can be forged.
This article examines such proposals on a pragmatic level, asking where political money will go if the “reformers” succeed. Both logic and past experience provide reason to worry that, once the dust settles, the current proposals may increase, rather than dampen, the role of money in politics. Even worse, because the reforms may further undermine the capacity of candidates and political parties to shape the electoral agenda, they could exacerbate the very political pathologies they are designed to combat. Far from making politics more accountable to democratic control, they may make it less so. On a more fundamental level, the authors also assess how political money works its way through the system.
Ultimately, the authors conclude that political money, like water, has to go somewhere. It never really disappears into thin air. Second, they think political money, like water, is part of a broader ecosystem. Understanding why it flows where it does and what functions it serves when it gets there requires thinking about the system as a whole.