Thomas Mann joined former FEC chairman Brad Smith to discuss the real or perceived danger to the McCain-Feingold law, alternative methods of finance reform and more, in a week long debate for the Los Angeles Times. Read the Entire Debate
A free flow of information among citizens, groups, candidates for public office and political parties is vital for healthy democratic politics. The right to speak diminishes in significance without the financial resources needed to be heard. Ensuring that parties and candidates have adequate resources to compete effectively in elections is problematic given the inevitable tension between the ideal of political equality and the reality of economic inequality. Efforts to prevent concentrations of wealth from undermining political equality may conflict with bedrock freedoms of speech and association. Every democracy struggles to reconcile the need for political money with the problems it begets. Policy makers across the globe work with the same set of political finance tools — public subsidies, limits on contributions, expenditure controls, disclosure, and regulation of campaign activity — to grapple with these problems but they often arrive at very different solutions.
The United States is an outlier in this comparative world of campaign finance, in that its powerful 1st Amendment speech guarantee precludes tools routinely used in other democracies. For example, many countries prohibit paid campaign broadcast ads, limit expenditures by parties and candidates, and ban independent spending by outside groups. None are possible in this country. In fact, cries of speech suppression in America as a result of campaign finance regulation must utterly bewilder the citizens of the United Kingdom, France and scores of other democracies. By virtually every indicator available, political speech is alive and well after the enactment of McCain-Feingold, richly registering the values, beliefs and interests of a very large and heterogeneous society.
As applied by the courts to campaign finance regulation, the 1st Amendment has limited reformers primarily to disclosure, restrictions on the size and source of political contributions, and various forms of public subsidies, alone or as part of a voluntary system to entice candidates to accept caps on expenditures. But even these regulatory approaches have attracted constitutional challenges. For example, some critics believe disclosure may not be required of outside groups unless they engage in express advocacy. Campaign finance reform efforts since the passage of the Federal Election Campaign Act Amendments of 1974 (FECA) have been devoted almost entirely to maintaining or recovering the credibility and effectiveness of laws already on the books. It has been largely a defensive strategy, one with a mixed record of success and failure. Party soft money is gone, but so too in most respects is the presidential public financing system.
Approaches to reform least vulnerable to 1st Amendment challenges include diversifying the sources of political contributions and lowering the costs of campaigning. Small donor contributions have increased markedly in recent years, thanks to the Internet and initiatives taken by political parties and presidential candidates. Matching small donations with public funds could play a constructive role. More ambitious forms of public financing now being tested in cities and states around the country also offer a route around 1st Amendment obstacles to campaign finance regulation. The costs of campaigning may be reduced by free air time for candidates and parties as well as by successful private efforts to harness various inexpensive forms of digital communications. If we are lucky, the latter could one day substantially reduce the problems of money and politics.