The emergence of super PACs shows once again that “campaign finance reform” has failed abysmally. After nearly four decades, it has achieved none of its goals. It has not purged politics of big donations, nor cured public cynicism about the influence of the rich, nor made elected leaders more trusted. What it has done is compromise basic First Amendment rights, clutter politics with baffling laws and regulations, and actually deepen cynicism.
Except for contribution disclosures, campaign finance laws should be scrapped. If there were no limits on individual contributions to candidates (the basic limit is $2,500 per candidate per election, meaning $5,000 for a primary and general election together), there would be few — if any — super PACs. The wealthy would give to candidates directly instead of resorting to some contorted alternative. Super PACs are merely the latest of many contortions born of a muddled Supreme Court.
On the one hand, the court has blessed limits on direct contributions to candidates and political parties. The rationale: to prevent corruption and its appearance — undue influence by big contributors. On the other, the court has also said that the First Amendment guarantees Americans the right to spend unlimited amounts to elect anyone they wish. It’s free speech. In Buckley v. Valeo (1976), the court tried to reconcile the contradictions by saying people could make unlimited “independent expenditures” not “coordinated” with the candidates or their campaigns.
The unsurprising result is that both parties searched for new ways to maximize spending without violating the letter of the law. These have included PACs (political action committees), so-called 527 groups, “soft money” and now super PACs, which can accept unlimited contributions and make “independent expenditures” (mainly media advertising). The trouble is that these various responses, though legally clever, seem ethically suspect to many Americans. The press generally adopts the same attitude.
The perception that political operatives and wealthy donors are skirting contribution limits — as they are — creates the aura of corruption and even criminality. Super PACs also seem to make candidates’ campaigns less accountable. The fact that all this is an exercise of First Amendment rights is simply ignored. The paradox is that campaign financial “reform,” far from allaying public suspicion of the political system, deepens it.
What started as an understandable reaction to Watergate abuses now imposes a tangle of rules on free speech and political activity. Go to the Federal Election Commission’s Web site and download its summary of regulations on “coordinated communications and independent expenditures.” It’s 11 single-spaced pages of legalese. This is not what the Founders imagined when they said Congress “shall make no law . . . abridging the freedom of speech” or the right “to petition the Government for a redress of grievances.”
Three myths buttress the status quo.
Myth One: The rich and corporate interests rule government through campaign contributions and lobbying.
This is absurd. In 2009, $2.1 trillion (60 percent) of federal spending went for “payments for individuals.” This included 52.5 million people receiving Social Security; 46.6 million on Medicare (many of the same people); 32.9 million on food stamps; 47.5 million on Medicaid; 3.9 million with veterans benefits. Almost all these benefits go to the poor and middle class. Meanwhile, the richest 5 percent of American pay 44 percent of federal taxes.
Does this look like government for the rich? Of course, businesses and wealthy individuals support candidates that share their interests. This is their right. But many super-rich contributors (George Soros and the like) are focused on political philosophies, not their net worth.
Myth Two: Political spending is out of control.
Not so. In 2008, spending for federal elections (the president, Congress) totaled $5.3 billion, up 27 percent from 2004. Over the same period, the economy grew 21 percent. By comparison, Americans spent $297 billion in 2008 on mobile and landline phones. Neither party has a permanent fundraising advantage over the other. In the past seven elections, Republicans raised more money in four, Democrats in three.
Myth Three: Spending isn’t speech.
Well, try “getting your message out” without spending. If money is necessary to disseminate campaign themes, then limits on spending (“independent” or otherwise) restrict speech.
The widespread belief in these myths makes campaign finance regulation seem respectable. It’s always convenient to blame the nation’s problems on moneyed “special interests” and to pretend that controlling them will advance obvious solutions. This is usually a delusion. Solutions aren’t always obvious, and the most powerful constituencies are not those with big bags of money but those with huge blocs of voters. AARP outguns the American Petroleum Institute.
The greater threat to our democracy arises from the well-intentioned effort to curb traditional First Amendment political freedoms under the guise of cleansing the system of the evils of money. There lies the true corruption of the Constitution.
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