Money troubles: Campaign-finance orthodoxy takes a hit

Wednesday, August 1, 2001

If government passed laws limiting how much money believers could
contribute to their places of worship or how much religious
institutions could spend on social and missionary work, the threat to
the First Amendment’s guarantee of religious freedom would be obvious
and the outcry deafening.

Yet, many cheer, rather than protest, when government, in the name of
campaign-finance “reform,” imposes precisely these kinds of
restrictions on another First Amendment guarantee, freedom of speech.

This is just one of dozens of telling points contained in Unfree
Speech: The Folly of Campaign Finance Reform,
by Bradley A. Smith,
Capital University law professor, constitutional scholar and now a
member of the Federal Election Commission, the agency that polices
federal elections.

The book’s call for a re-examination of the underlying assumptions of
the campaign-finance-reform movement is particularly timely. On
Thursday, an acrimonious parliamentary struggle in the U.S. House
over the Shays-Meehan campaign-finance bill appears to have torpedoed
a new wave of regulation that began to build in April with Senate
passage of the complementary McCain-Feingold bill.

The bills propose sweeping restrictions on political contributions to
parties and would have prohibited some groups from engaging in
political speech in the crucial final weeks of election campaigns.

In his book, Smith urged all sides in the campaign-finance debate to
stop and consider the damage current campaign-finance laws have done
and to re-examine the premises of these laws.

As in his previous writings, Smith argued that the nation’s attempt
to improve democracy by restricting campaign cash has had the
opposite effect. By limiting how much citizens can give to campaigns,
these laws have made it so difficult to raise money that candidates
have become more obsessed with fund raising, rather than less.

The resulting difficulty in raising money is particularly devastating
for political outsiders and grass-roots candidates. They simply
cannot raise enough cash to mount serious challenges to incumbents,
who enjoy the advantages of name recognition, the bully pulpit and
free media access provided by public office.

Instead of diversifying politics, these restrictive laws have caused
incumbent re-election rates to soar and have ensured that only those
who can afford to finance their own campaigns, candidates such as
Steve Forbes and Ross Perot, are able to mount serious challenges to
the status quo.

Because individuals face such unrealistically low giving limits for
candidates, they donate instead to independent advocacy
organizations, which are unregulated and run political ad campaigns
outside the control even of the candidate and party they support. One
consequence is the deluge of negative ads that now attend each

Finally, these laws have, if anything, led to more campaign-finance
scandals, rather than fewer, as candidates and parties dodge, bend
and simply break the rules.

One might expect these demonstrable failures to provoke a rethinking
of the entire rationale for such laws. But instead, advocates demand
more of the same.

Smith challenged the fundamental article of faith of campaign-finance
“reform” advocates: that political contributions corrupt the
democratic process. Among the assumptions Smith rejected is the idea
that too much money is spent on politics.

In fact, considering the number of voters that candidates must reach,
the amounts are quite modest, he argues. In the two years leading up
to the general election in 1998, congressional candidates nationwide
spent a total of $740 million, noted Smith, or about $4 per eligible

Adding local and state campaign spending for the same period gives a
total estimate of $1.5 billion to $2 billion, which ranges from $7.50
to $10 per eligible voter for all elections to all offices over those
two years. This hardly seems like too much to pay for democracy.

Smith also rejected the allegation that legislators are for sale to
the highest bidder.

This charge is based on little but anecdotal evidence and statistical
tricks employed by campaign-finance activists, he said.

Activists seize on statements by a handful of politicians — or
former politicians — claiming that money buys votes in Congress. But
for every legislator who will attest that legislators can be bought,
there is another who denies that this is a routine occurrence.

And there are reasons that some people want to exaggerate the
influence of money.

What is telling, Smith said, is that when someone wins on some issue
before Congress, he never attributes the victory to the campaign
contributions he made to sway congressional votes; the win occurred
because his ideas were better, he was on the side of the angels, etc.

But when someone loses on an issue before Congress, typically the
defeat is blamed on the campaign contributions made by the
opposition, which corrupted legislators and caused them to vote
against the public good.

“There is a human tendency to blame defeat on ‘unfair’ factors, such
as corruption, rather than to admit that our ideas were not strong
enough, our allies not numerous enough or our side not organized
enough to gain legislative victory,” Smith said.

Special-interest groups, among them professed public-interest
watchdog organizations, now routinely “prove” corruption by citing
campaign-contribution reports.

As an example, Smith cited a Common Cause report that in 1999
suggested the National Rifle Association’s influence in Congress was
the result of giving a total of $8.4 million to congressional
campaigns from 1989 to 1998.

That sounds impressive until one considers that this money was
divvied up over 10 years, in five different election cycles, to a
variety of candidates.

During that period, total spending by candidates and parties was $4
billion. So the NRA’s contribution, Smith said, amounted to “less
than two-tenths of 1 percent of the total. In this light,
contributions hardly seem to be a realistic explanation for the NRA’s
alleged power.”

The more obvious explanation of the NRA’s clout is that, with more
than 3 million members, the organization commands a bloc of votes
that most special interests envy and few can match. In many
congressional districts, Smith said, NRA members are capable of
shifting vote totals by as much as 5 percentage points: “Groups that
advocate gun control often complain that the NRA outspends them but
rarely mention that the NRA also outvotes them.”

He also pointed out that those who claim widespread corruption of
legislators seem unable to point to many specific examples. In fact,
said Smith, actual corruption is rare, which is why it is still so
shocking when it occurs.

It also is ironic that one of the relatively few current legislators
who has been accused of corruption is none other than Arizona
Republican Sen. John McCain, co-author of the McCain-Feingold bill
and darling of the campaign-finance reformers.

McCain was one of the “Keating Five” senators accused of improperly
pressuring federal regulators to go easy on Charles Keating and his
troubled savings and loan a decade ago. All five senators had
received large campaign contributions and personal favors from

Following an investigation by the Senate Ethics Committee, no action
was taken against McCain, though the panel cited him for poor

The relative rarity of true influence-buying is backed up by academic
studies of legislative voting behavior. These studies find that “the
influence of contributions is dwarfed by that of party agenda,
personal ideology and constituent desires,” Smith said.

This observation makes sense. Were legislators easy to buy, one
should be able to point to numerous instances in which lawmakers
voted against their own political beliefs and party. But examples of
such mercenary treason are rare.

If such sellouts were occurring on any significant scale, why is it
that the most frequent complaint about Congress is that it is
paralyzed by partisan gridlock, with members adhering so loyally to
party and ideology that they will not compromise even for the good of
the nation? Where are all the turncoats who have been bought off?

The corruption rationale just doesn’t hold up theoretically or in
reality, Smith argued in his book. But on the basis of such faulty
reasoning, campaign-finance restrictions are seriously eroding the
right of citizens to participate in democracy through campaign giving.

Worse, each time a new restriction is placed on campaign giving,
someone finds a way around it, legally or illegally. As restrictions
are tightened, more and more campaign cash is going to go
underground, increasing corruption rather than eliminating it.

As does The Dispatch, Smith believes that the way to maximize free
speech and minimize political corruption is simply to allow citizens
to give what they like to candidates and parties but to require full
and timely disclosure of those contributions.

The voters can be trusted to take it from there.