Cash or charged?

Today, former FEC Chairman Smith and Brookings Institution fellow Mann discuss the essential tension between political speech and campaign finance regulation. Previously they debated public financing of campaigns, broader campaign finance solutions, real or perceived dangers to the McCain-Feingold law and the quality of the Supreme Court’s ruling in the Wisconsin right-to-life case.

Two versions of the singularity
By Thomas E. Mann

Brad, for the final installment in our debate, let’s assume your policy preferences on campaign finance regulation are realized. By court action or legislation, laws regulating the contribution and expenditure of funds in federal elections are ruled unconstitutional or repealed. Corporations and unions are free to draw on their general treasury funds to participate in federal election campaigns. Individuals and PACs can make unlimited contributions to candidates and parties. Political parties can accept contributions from any source and of any size, and spend those resources as they see fit. The presidential public funding system dies of its own weight or by explicit repeal, and no other forms of public subsidies are enacted to replace it. The Federal Election Commission remains in place but with a vastly reduced jurisdiction, primarily to oversee whatever disclosure requirements are retained. Bribery and extortion statutes remain on the books and become the sole mechanisms for preventing and punishing corruption. I presume IRS restrictions on 501(c) organizations regarding political activity would also be retained (or would those be repealed as well?).

I expect you and other deregulation adherents would welcome the end of restrictions on political speech and the bureaucratic interference involved in policing those restrictions, the likely increase in funds available to enable that speech, the possible emergence of donors willing and able to generously finance challengers to entrenched incumbents and the development of a citizen-run marketplace to discipline the role of money in politics. Sounds pretty attractive.

Critics of deregulation (myself included) anticipate a different set of consequences. With no restrictions on what they can receive in political contributions (short of quid pro quo agreements), elected officials gain enormous power over those whose economic fates are influenced by public policy decisions. An informal “pay to play” system, once restrained by limitations on contributions and a ban on party soft money, flourishes in a deregulated system. Campaign money becomes even more the coin of the realm in Washington, D.C., the focus of enormous time and energy by politicians and the basis of leadership advancement and influence in Congress. Large economic interests invest heavily in one party or both, drowning the voices of those less well endowed. Electoral competition further erodes as incumbents seize the fundraising opportunities afforded those in charge of government, and no public subsidies are available to level the playing field. The discipline of the political marketplace fails as citizens find it too daunting to acquire the necessary information and to calculate a basis for differentiating between candidates or parties based on their contributors that would override other important motivations for their vote, and private interests hedge their bets by investing in both sides. The legitimacy of the democratic process is threatened by the free flow of unimaginable sums of money from private interests to public officials.

Whose scenario is more likely? My views and yours are certainly shaped by our broad philosophical views, which to some extent color our reading of the empirical evidence that can be brought to bear on this debate. At the same time, we both sincerely believe that we are making responsible judgments and forecasts based on the realities of money in politics. What do the readers think?

Thomas E. Mann, the W. Averell Harriman chair and senior fellow in governance studies at the Brookings Institution, was an expert witness in the constitutional defense of the McCain-Feingold campaign finance law. He is co-author of “The New Campaign Finance Sourcebook” and “The Broken Branch.”

Give speech a chance
By Bradley Smith

Tom,

You conclude by trotting out all the hoary old arguments against deregulation, as if we don’t have lots of real world experience to evaluate.

Prior to 1907, there was no regulation at the federal level (and virtually none in any state), yet our Republic survived. By the 1850s the same arguments about money we hear today were being made, yet we managed to come up with Abe Lincoln and later Grover Cleveland, weathering a momentous Civil War to became the most dynamic country on Earth — and one of the freest. We then elected Teddy Roosevelt on the strength of what today would be seven-figure contributions in inflation-adjusted dollars.

Even after 1907, campaign finance remained far less regulated than today — as a de facto matter, there was virtually no regulation until passage of the Federal Election Campaign Act amendments of 1974. It was a tough century, to be sure, with two world wars and a Great Depression, but we managed to elect Franklin Roosevelt, Harry Truman and Dwight Eisenhower and see it through, even managing the civil rights revolution along the way. How did we ever survive?

Today, we have laboratories all across the country: states such as Virginia and Utah with no limits on contributions; states that allow even — gasp! — unlimited corporate contributions. Yet these are growth states, states people are moving to, not fleeing from.

How real is your apocalyptic vision? I laughed, literally, to read about, “an informal ‘pay to play’ system, once constrained by a ban on soft money,” as if such a ban has always been in effect. There was no ban on soft money until 2002 — has there really been a constraint on “pay to play” since? I doubt many think so.

Politicians do indeed spend more time fundraising now — under contribution limits, it takes much longer to raise cash and demands much more personal involvement by the candidate. As Jack Kemp once said, contribution limits make funding a campaign like filling a swimming pool with a spoon, requiring much more of a candidate’s time. Incumbency reelection rates and funding advantages have risen under the regulatory regime introduced in 1974. What factual basis is there for your speculation that further regulation would solve the problems that past regulation seems to have exacerbated?

Of course, even if you lack my confidence that freedom works, we can and ought to deregulate. We’ve spent a century moving step by step in the direction of more regulation, and the alleged problems of money and politics seem to keep getting worse. It’s time to reverse course. You and I agree that parties should be allowed more flexibility to coordinate their activities with their candidates. Let’s start there. Next, if we merely raise contribution limits to the inflation-adjusted equivalent of where they were when enacted in 1974, we would roughly double individual giving limits and raise other limits by even more. Then, if your parade of horribles has not come to pass, we can deregulate more.

With apologies to John Lennon, all we are saying is, give speech a chance.

Bradley Smith served as commissioner on the Federal Election Commission from 2000 to 2005, and as chairman of the commission in 2004. Currently professor of law at Capital University Law School in Columbus, Ohio, and chairman of the Center for Competitive Politics, he is the author of “Unfree Speech: The Folly of Campaign Finance Reform” (Princeton University Press, 2001).