Nathan Koppel has an article in the Wall Street Journal today on so-called "pay to play" laws. A few key excerpts:
Should free speech be curbed in the name of good government? The debate, which has hovered over U.S. political campaigns for years, has taken on new fervor in the wake of recent political scandals.
Good-government advocates have stepped up their calls for states and the federal government to crack down on money in politics, particularly so-called pay-to-play practices in which businesses give favors or gifts to politicians in the hope of getting some benefit in return. State legislatures across the U.S. are considering laws curbing campaign contributions, efforts that civil-liberties proponents say could threaten free speech.
The push for reform has been fueled by high-profile allegations of corruption, including those against Gov. Rod Blagojevich of Illinois and former Sen. Ted Stevens of Alaska…
…the courts in recent years have rejected free-speech arguments in campaign-finance cases, saying that states have a compelling interest in imposing strict limits on spending…
…Craig Holman, a lobbyist for Public Citizen… says he has received requests in the last two weeks to work on possible play-to-play legislation in Georgia, Montana and Pennsylvania.
In New Mexico… state Senator-elect Tim Keller of Albuquerque says he plans to introduce pay-to-play legislation this month…[a]nd… Massachusetts state Senator Jamie Eldridge introduced legislation that would limit the ability of state contractors to contribute to politicians…
…Last month, U.S. District Judge Stefan Underhill of Connecticut considered a free-speech challenge to a 2005 state law banning campaign contributions from lobbyists and contractors, along with certain of their family members. The law came in the wake of a high-profile scandal that landed former Gov. John Rowland in jail. Judge Underhill upheld the spending limits, ruling that the state was justified in "eliminating contributions from individuals with the means and motive to exercise undue influence over elected officials."
The article is informative, and certainly gives those of us who value the First Amendment cause for concern – the story lists 5 states that are poised to strip citizens of their constitutional right to support the candidates or causes of their choice. But the article also leaves out a great deal (which news articles inevitably must due to space considerations).
May I suggest, however, that the question of "galvanized" popular support for more law in the area is much more a product of insider thinking and the well oiled press machine of the so-called campaign finance "reform" lobby than any real galvanizing of popular support. For example, this past August, Alaska voters – Alaska! Home of VECO, Ted Stevens, Don Young, and Frank Murkowski! – voted nearly two to one against a ballot initiative that would have curtailed private campaign donations and instituted a system of tax financed campaigns.
Similarly, in California in 2006 – just three years after deposing pay-to-play king Gray Davis – voters defeated a measure to end private campaign finance and replace it with tax funded campaigns by a margin of nearly three to one. And it is not just "public finance" laws that go down at the ballot box.
In 2005, in Ohio, over 60% of voters voted against a measure to implement stricter campaign finance laws – at a time when Ohio Congressman Bob Ney was under high profile public investigation than would lead to his conviction, a pay-to-play scandal was engulfing the Workers’ Compensation Fund, which had lost millions of dollars invested in no-bid contracts, and the Governor had just been convicted on misdemeanor charges for failing to report gifts from lobbyists.
Typically, when campaign finance measures are placed on the ballot, there is no organized opposition, with opponents either being disorganized individuals, groups intimidated by the press, the well-funded reform lobby, and members of government who favor these laws (often hoping to suppress political opposition), or organizations thinking of campaign finance as "someone else’s issue." Whenever any opposition appears, however, these measures tend to lose. In Alaska last year, for example, supporters outspent opponents by better than two to one, yet still lost by two to one.
A number of top quality researchers have studied public opinion on campaign finance – including David Primo at University of Rochester Political Science Department, Jeffrey Milyo at the University of Missouri Truman School of Government, Nate Persily at Univ. of Pennsylvania Law School, and Larry Sabato at the University of Virginia Center for Politics - and their result consistently show that voters rate campaign finance extremely low among their priorities, and moreover, have opinions that are much more complex than the folks at Common Cause and elsewhere in the reform lobby like to claim.
In a nutshell, substantial majorities think politics is corrupt, and they pretty much think that all the time everywhere. These same majorities vaguely favor campaign finance laws, in much the same way they might be in favor of a "sound economy." But at the same time, they have little faith that campaign finance laws in fact will make a difference; they do not believe campaign finance laws should apply to them; they favor substantial free speech rights, and they become less supportive of restrictions as they become better informed.
The other angle that never gets enough attention is whether the proposed "solution" fits the problem. For the so-called "reform" lobby, which sincerely believes that America would be better with less political speech, every government scandal leads to the same solution: more campaign finance laws. The pattern is repeated over and over: scandal; prison; calls for more "reform." But in fact, the question reporters should ask is: how would this proposed law, if enacted, have prevented this activity?
Connecticut’s new law, for example, would not have prevented the activities of Rowland, Blagojevich, Ney, Cunningham, Jefferson, Stevens, and Richardson, among others, who have been indicted, convicted, investigated, or forced to resign. Indeed, it is virtually impossible to find a correlation, let alone causation, between "strict" campaign finance laws and "good government."
This disconnect in thinking is found nowhere more than in the bowels of the Pew Charitable Trust. Since the early 1990s, Pew has thrown over $100 million into promoting "campaign finance reform."
But it also publishes a magazine, "Governing," which, among other things, rates state governments for performance. In recent years, the top two finishers have consistently been Utah and Virginia, two of the handful of states that actually have no limits at all on campaign finance.
Other states with few or no limits also are disproportionately clustered near the top of the "Governing" rankings. (In fairness, this is not uniformly true – largely unregulated Illinois, for example, scores very poorly. The point is that there is no correlation, let alone evidence of causation, that "strict" campaign finance laws promote better government). It has always struck me that this would be an interesting and different angle for an adventuresome journalist to take up.
Finally, these laws have not fared as well in the courts as the impression readers might gain from today’s article. Since 2006, the Supreme Court has heard three campaign finance cases, and in all three ruled in favor of speech, against regulation.
In Wisconsin Right to Life v. FEC (2006), it struck down the portion of McCain-Feingold that prohibited any broadcast ad paid for with corporate or union money and mentioning a candidate with 60 days of an election, at least as applied to most such ads.
In Randall v. Sorrell (2006), it struck down a Vermont law dramatically limiting campaign contributions, noting that the limits of the Vermont law were too low to withstand constitutional scrutiny.
And in Davis v. FEC (2008), it struck down a portion of the McCain-Feingold law that penalized candidates for spending their own money to campaign. While it is true, as noted in today’s story, that courts have generally upheld the right to limit contributions, the whole picture is much more complex, not just at the Supreme Court but also in lower courts, and at the present time I think it fair to say that supporters of regulation are on the defensive in the courts.
And that’s just where they ought to be.