A Better Way on Campaign Finance

Posted June 24, 2005 at 6:06pm

Trevor Potter dismisses concerns about the complexity of our country’s campaign finance laws by comparing them to antitrust and patent laws that, while complex, serve important public interests. Other reform proponents have made similar analogies to other laws impacting commercial activity, such as the tax code. Laws such as these, they argue, need to be periodically revised to close “loopholes” exploited by persons seeking to evade taxation, operate like a monopoly, and so on. So, the thinking goes, if these laws need to be occasionally rewritten to prevent people from thwarting their intent, why should anyone be surprised that the same is true of campaign finance laws?

There is, of course, a profound difference between laws regulating political activity and those regulating commercial activity of this sort. The Constitution, in Article 1 Section 8, explicitly grants Congress the power to regulate commerce and levy taxes. The same Constitution, in the First Amendment, also explicitly forbids Congress from passing laws restricting speech and association. The political activities that reformers make a living trying to restrict are therefore wholly unlike the commercial and economic activities they would compare them to.

Anyone familiar with the literature and rhetoric of the reform community might get the impression that their defining characteristic is self righteousness, but they are even more distinguished by their hubris. Their particular hubris is their firm belief that they know better than the Founding Founders did about how to preserve American democracy.

While the founders believed that liberty was best preserved by preventing Congress from interfering with the right to speak and associate freely, the reformers believe that they know better and that only by restricting and regulating these activities can we keep our system healthy.

The result has been the creation of a system accurately described by Marc Elias as so complex that political actors are forced to consult with attorneys before engaging in any activity within the scope of the law. (Mr. Potter, of course, does not see this as a problem since he makes a very good living on such consultations.)

Those wishing to be heard in political campaigns must first engage in a game of “Mother May I” with a federal agency, the Federal Election Commission, wherein they report what, how and where they would like to do or say something and then await approval. Approval may come in the form of an advisory opinion approving the activity. If it is not approved, it better not be done, because fines and/or jail could await the actor.

Of course, a separate opinion is not required for every action. If someone else has already sought and received permission for the same activity, that can be relied on instead. Misreading or misinterpreting an AO can, however, still result in serious problems if the activity differs in any way from what was authorized. A lawyer can give guidance, but calling more than one could result in conflicting opinions.

The consequence of all this complexity is a chilling effect. People either withdraw from the process entirely, or avoid any activity that could possibly run afoul of the myriad laws and regulations that have been imposed. This is an ironic but undeniable consequence of the “reforms” that proponents argued would expand political participation.

Reform proponents began the year calling for legislation to expand the Bipartisan Campaign Reform Act to regulate the activity of 527 organizations, which raised and spent large sums to influence the last election. Displeased by the provisions of the legislation sponsored by Reps. Mike Pence (R-Ind.) and Albert Wynn (D-Md.) that was reported by the House Administration Committee last week, they are now opposing new legislation in this area.

The Pence-Wynn bill would begin the process of simplification endorsed by Elias. For example, it would exempt the Internet from regulation. This exemption was included in a bill introduced by Senate Minority Leader Harry Reid (D-Nev.) and was endorsed by Rep. John Conyers (D-Mich.) and 14 of his colleagues in a letter to the FEC. Democracy 21’s Fred Wertheimer, forever convinced of the virtue of regulation, has denounced the exemption.

Another simple idea included in the bill is to allow federal office holders to speak at state-party fundraising events without restriction or limitation. This would allow them to speak freely without having to worry if a statement such as “please support your state party” crosses a line and amounts to an impermissible solicitation of funds that exceed the source and amount limitations of the federal law. Wertheimer has denounced this provision as well.

Since the Pence-Wynn bill rejects the premise that more regulation is the answer to the problems in our system, it comes as no surprise that the reform community has attacked it. Unfortunately, it has also been criticized by the Democratic leadership in the House. Perhaps those leaders should reconsider, take Elias’ counsel and embrace this opportunity to simplify the laws that have made our political system worse, not better.

If they do, we might get back to a system where people could engage in political activity without first having to consult a lawyer. If we can pass a bill that requires Elias and Potter to find another line of work, then we will really be making progress.

Paul Vinovich is staff director of the House Administration Committee.