There they go again...

Published on June 5, 2008
by Michael Schrimpf

File Under: Contributions & Limits, Faulty Assumptions, Lobbying Regulation

After efforts by former New York Governor Eliot Spitzer to impose campaign finance regulation were undone for various reasons, new Governor David Paterson unveiled his own campaign finance package yesterday.

The proposed legislation is comprised of the latest soup du jour of campaign finance regulations: lower contribution limits to candidates, lower contribution limits to political parties, lower limits for lobbyists, and the inclusion of a millionaires' amendment.

Two of these proposals - the millionaires' amendment and disparate limits for lobbyists - are of dubious constitutional merit.

The rest of the proposal, while at least constitutional, still manages to undermine First Amendment rights, while creating its own set of unintended consequences.

Contribution Limits

Gov. Paterson argues that "Existing contribution limits in New York State are some of the highest in the nation and for certain contributors, the highest. Too often, decisions in Albany are shaped by wealthy donors and special interests. We need to change that and restore New Yorkers’ confidence in how Albany does business."

Such a statement highlights a misunderstanding about the role that campaign contributions play in the political process. Academic studies reveal that campaign contributions follow ideology and legislators vote according to their own beliefs, the views of their constituents, and the positions of their party.

Former Supreme Court Justice Warren Burger wisely recognized:

We do little but engage in word games unless we recognize that people - candidates and contributors - spend money on political activity because they wish to communicate ideas, and their constitutional interest in doing so is precisely the same whether they or someone else utters the words... limiting contribution, as a practical matter, will limit expenditures and will put an effective ceiling on the amount of political activity and debate that the Government will permit to take place.

By limiting the ability of candidate's to raise money, contribution limits decrease electoral competitiveness, entrenching the status quo.

Higher levels of spending tend to benefit challengers more than the incumbent. Incumbents begin each election with significant advantages name recognition. They are able to attract press coverage because of their office, and they often receive assistance from their office staff and government-paid constituent mailings. Through constituent favors, incumbents can also add to their support.

To offset these advantages, challengers must spend money. By limiting the ability of challengers to raise and spend money, campaign finance laws lock into place the advantages of incumbency and disproportionately harm challengers.

One should also note that enacting contribution limits has no impact on the competency of government. In fact, a report card grading the 50 states on the competence of their government by the Pew Center on the States found that states with virtually no campaign finance restrictions - like Utah and Virginia - were among the best governed states in the nation.

If New Yorkers are unhappy with their state government, it is not because of the state's campaign finance system. Moreover, lowering contribution limits will only ensure that the status quo remains.

Last, lowering contribution limits will force individuals and organizations to turn to other means through which to support their preferred candidates. Expect an increase in the number of independent expenditure groups if this legislation is enacted.

Millionaires' Amendment

Gov. Paterson's proposal also includes a Millionaires Amendment to "level the playing when race includes a wealthy self-financed candidate."

This provision closely mirrors the federal so-called "Millionaires' Amendment" that is currently under review at the United States Supreme Court.

The Supreme Court heard oral arguments in the case, Davis v. FEC, challenging the Millionaires' Amendment in April and appeared amenable to overturning the federal provision when it issues its decision, expected later this month. 

It would therefore seem prudent to not enact a law of questionable Constitutional merit until after the Supreme Court's ruling. If not, it is quite possible that an enacted New York law would be subject to court review.

Additional restrictions on lobbyist contributions

Gov. Paterson's proposal imposes additional restrictions on the ability of lobbyists to contribute to political campaigns. This provision is similar to a recently enacted New York City law being challenged in court by prominent campaign finance attorney James Bopp.

It is wholly foreign to the First Amendment to allow the government to grant disparate political rights to its citizens based upon their occupation.