On Sept. 8, the U.S. Supreme Court heard oral arguments in the heated battle over campaign finance reform legislation — the so-called Bipartisan Campaign Reform Act.
I won’t offer any prediction as to how the court will rule. Especially in the wake of this summer’s decision in the University of Michigan case, where a majority of the court invented out of thin air a “compelling state interest” in “diversity” that allows schools to ignore the 14th Amendment’s requirement that all citizens be treated equally under the law, it’s impossible to say how the court will decide, since the language of the Constitution is so easily evaded.
But I will offer some thoughts on how the court ought to rule. It ought to declare the BCRA unconstitutional and should do so in language that doesn’t encourage Congress to go back to the drawing board. The whole enterprise of campaign finance regulation is not only a violation of the Constitution, but logically misconceived as well.
The constitutional issue is simple. “Congress shall make no law abridging the freedom of speech or of the press,” says the First Amendment. In limiting political contributions, which are instrumental in campaign communications, and in restricting political ads, BCRA abridges both. Backers of the legislation say that there are good reasons for it. I disagree, but even if it did, the Constitution doesn’t say, “no law unless it’s really needed.”
The central idea of campaign finance reform is also flawed. Money, at least money from the wrong sources, or too much of it, supposedly corrupts our otherwise pure democratic system. Bad bills get passed just because of donations from well-heeled interest groups to politicians whose support is up for sale, and good bills are blocked for the same reason. The rich have undue influence in the political arena, while “the little guy” is ignored. So what could be fairer than to (sorry, but here comes another cliché) “level the playing field?”
That central idea, however, gets it completely backward. Money does not corrupt politics. Politics corrupts money — that is to say, individuals with money.
Seventy years ago, sociologist Franz Oppenheimer pointed out that there are fundamentally only two ways of getting what you want in life. He called them “the economic means” and “the political means.” By economic means, Oppenheimer meant producing and trading. By political means, he meant the use of force, particularly force as organized and used by government.
If government sticks to its proper role as a neutral enforcer of laws that protect life, liberty, and property, people have to use the economic means to achieve their goals. They have to work to produce goods or services, which they then sell to get money so they can buy other things. That regime channels human energy into useful endeavors.
On the other hand, if government starts allowing its powers to be used so that some people can dictate to and live at the expense of others, society will change dramatically as the political means becomes increasingly prevalent. Human energy, resources, and money will go into scheming for the passage of laws and regulations that benefit a few at the expense of many.
Therefore, the temptation of politics corrupts people into using their money for all sorts of nefarious purposes. Companies try to buy governmental subsidies. Unions try to buy protection against competition. Various citizen lobbies try to buy “free” medical care or more “protected wilderness” or increased student aid or hundreds of other governmental goodies.
But at the same time, individuals and organizations that don’t want those things foisted on them spend their resources on politics to oppose them. Money in politics is not only spent trying to bring about the enactment of bad laws and policies, but also to stop their enactment.
The proponents of campaign finance reform evidently believe that with their cleansing reforms in place, there will be much less support for the political “bads,” even though there is no agreement as to what constitutes a political bad. I submit, however, that it is at least as if not more likely that campaign finance regulations will do more to impede those who oppose the political bads than to impede those who promote them.
The interest groups that push politicians to give them goodies will not be deterred merely because we pass laws regulating campaign spending.They will find ways to influence politicians anyway. Regulations are apt to have far more impact on “leave us alone” groups, making it hard for them to raise issues with the public, as with the ban on “issue ads” during campaigns.
If you’re serious about cleaner politics, forget about trying to take out the influence of money. Instead, think about removing the temptation to use government power.