With another election cycle nearing its end, the debate over regulating campaign finance is far from over. Last week, Professor Bradley Smith ’90 of Capital University Law School and Visiting Professor Daniel Tokaji of The Ohio State University Law School shared their views about the underlying values and the future course of campaign finance regulation with a packed house in Austin Hall. The event was sponsored by The Harvard Law Federalist Society.
Professor Smith, a former Chairman of the Federal Election Commission (FEC), argued that the post-Watergate system of federal regulation over campaign finance, ushered in by the Federal Election Campaign Act (FECA), “has simply not worked all that well.”
FECA aims to remove corruption and the appearance of corruption from federal election campaigns by limiting contributions to and spending by campaigns. Smith claimed that while the regulatory scheme “moves money around, . . . I don’t think we have much to show for it.” Smith cited so-called “issue ads” which cannot explicitly advocate the defeat or election of any candidate but can encourage viewers to “call” a lawmaker and express their views about an issue as an example of the regulation’s inconsistent approach.
Smith also claimed that the Bipartisan Campaign Reform Act of 2002, more commonly known as the McCain-Feingold bill, “has failed to accomplish any meaningful agenda” and that most observers would not say that our current regulated system allows “more equal” political participation.Smith then shifted the conversation to the future of campaign finance regulation, arguing that the answer moving forward is not more regulation. Smith cited the transformation of the media as an important factor to consider: “[today,] the idea of the non-partisan, objective journalist . . . is a strange one. . . . Advocacy journalism is [now] much more popular.”
Such a shift poses a challenge for which media outlets receive FECA protection. “[It would be] a strange world where we say the Washington Post website is [exempt] but not bloggers,” posited Smith. Such an application would favor protections of corporately-disseminated speech at the expense of individuals and the electoral process as a whole.
Changes in technology have also changed the political landscape, even since the time of the McCain-Feingold legislation. Websites like SaysMe.tv, which allows individuals to select pre-produced political advertisements or upload self-produced videos and pay for their airing on user-selected cable channels, have challenged the definition of political contributions. The same can be said about major-motion picture releases like Michael Moore’s “Fahrenheit 9/11” and Oliver Stone’s “W.” Smith questioned whether allowing corporate films to have political speech impacts while restricting individuals “seems to get backwards” the democratic aspirations of our political system.
Societal changes have also contributed to a political landscape no longer suited by the current set of campaign finance regulations. Current regulations, some of which stem from the turn of the last century, are “based on a dichotomy of business and labor which doesn’t really exist anymore,” according to Smith.
Regulators must also strive for improving enforcement of any modified system. The need for adequate due process to resolve the tough issues raised by FEC complaints make it almost impossible for the adequate resolution of claims before an election. Curtailing the process could foster distrust in the system and lead voters to “think people are cutting corners, which they probably are.” The alternative of overturning the results of a race for a fundraising violation also seems equally problematic: “courts have been reluctant to . . . pull candidates out of office [for a violation].”
The current state of affairs leads to the conclusion that “we’ve hit the endgame of campaign finance reform,” Smith said, ending his portion of the discussion with his ideal solution: “the answer to speech is more speech.”
Professor Tokaji, stated that he “studiously tried to avoid writing on campaign finance [regulation because it] seems like such a quagmire.”
“People are really quite bitterly divided over what . . . seem to be pretty arcane issues [and] positions tend to be really hardened,” noted Tokaji. What differentiates this debate from others, such as the debate surrounding abortion, is that the opposing viewpoints do not clearly overlap with political affiliation.
Tokaji then shifted the conversation in an attempt to “think about the big-picture values at stake with campaign finance reform . . . that ought to be taken into consideration in the debate.
Tokaji forwarded four essential values, the first of which was liberty. This value is often overshadowed by “the longstanding and often distracting debate over whether money is speech.” Such a debate misses the point, according to Tokaji, as it is well established that one “need[s] money to get your speech out and make it effectual.”
The second important value to consider is the avoidance of corruption or the appearance of corruption. Cited by the courts in cases ranging from Buckley v. Valeo to present-day challenges to the McCain-Feingold legislation, the avoidance of corruption or the appearance of corruption is “the [main] ground on which campaign finance reforms have been upheld,” according to Tokaji.
“I’m really not a big fan of the appearance of corruption rationale,” said Tokaji. He likens the reasoning behind this value to that of “enhancing public confidence,” which is often used to forward voter identification laws which Tokaji feels pose equal protection problems.
Tokaji’s third value, equality, was admittedly taken off of the table in Buckley as “wholly foreign,” according to the Court. Despite this, Tokaji argued that equality has a place in the campaign finance debate and should be the strongest value of the four: assuming that money does equal speech, “those who don’t have the money don’t have the power to make their speech effectual.” Tokaji also claimed that the Court is “smuggling in an equality rationale under the appearance of the prevention of corruption in McConnell v. Federal Election Commission, where the Court substantially upheld the McCain-Feingold regulations against a facial challenge.
The final value is entrenchment or competition: “incumbents often pass laws to preserve their own power,” according to Tokaji. Courts should play an active role in blocking “this type of campaign finance regulation.”