Eminent Domain

Imagine my shock to find something worth reading in the New York Times. Election lawyers Jan Witold Baran and Robert F. Bauer take a look at many aspects of election law, including its past, present, and future.

After Nixon's re-election and Watergate, campaign finance reform was on the minds of many people. The country saw the creation of the FEC, the FECA law, and eventually the maddening Supreme Court decision, Buckley v Valeo. Baran and Bauer note that the regulation has grown and grown, with the passing of BCRA and the talk of abolishing the FEC. Unfortunately, the FEC would be replaced by the FEA...

In legislation designed by the irrepressible architects of McCain-Feingold, the proposed Federal Election Administration would be equipped to mete out swift justice, including hefty fines and "cease and desist" orders to wayward campaigns.

The new agency would shrink the F.E.C.'s six seats to a more nimble three, including a vastly more powerful chairman appointed by the president for a 10-year term. For good measure, nominees for the three seats would have to be unsullied by timely, real-world political experience; no recent candidates, party officials or - ouch! - election lawyers need apply.

That's exactly what we need, a more powerful federal regulatory agency. That'll fix everything, right?

Why has campaign finance regulation grown so much? Why have legislators been so quick to embrace this practice? Baran and Bauer recognize the self-serving interests that I have in the past (today even)...

Some reformers genuinely believe that it is possible to drive money out of politics and still observe the command of the First Amendment. Others see practical advantages. Many politicians favored McCain-Feingold because it prohibited certain advertising that mentioned opponents' names, or because it authorized them to raise more money if they were challenged by wealthy, free-spending opponents. The bill also attempted to strike at "negative" political speech - known to ordinary Americans by its other name, "criticism" - by requiring candidates to publicly approve their ad content.

I love that last line. It shows the twisted nature of these laws.

This may surprise many people, but there are some places that do not have strict campaign finance regulation. What kind of backwards, Third World region would be so lawless? Virginia...

Meanwhile, there are states where campaign finance remains largely unregulated. Virginia, for example, has no contribution limits, no public financing, no prohibitions on corporate or union giving; it simply requires prompt disclosure of campaign income and spending. It does not appear that relatively laissez-faire campaign finance has left Virginia with a dysfunctional and corrupt government, certainly not of the kind alleged to be rampant in Washington.

But surely we must have complex election reforms in place or else the entire nation will degenerate into some kind of neo-Tammany Hall era of corrupt politics. We're corrupt enough as it is with the laws restricting election-related speech.

What does the future hold...

Partisans will continue to demand restrictions calculated to hurt their opponents or help themselves; the press will inveigh against the nefarious role of money in politics (without explaining how candidates are supposed to communicate, cost-free, with millions of voters); and "good government" groups will explain that we are just one or two reforms away from cleaner, brighter, more wholesome politics.

In other words, business as usual. I think it will take some extreme campaign finance laws to turn the general public against the whole practice. Unfortunately, it's going to take a long, long time for us to get there.