Campaign finance laws clean up politics. Or so we’re told. Lawrence Lessig, professor at Harvard Law School, has yet another article decrying campaign money as the source of “all that’s wrong with Washington.” Rather longwindedly, Lessig laments that politics is dirty. Lessig concedes that money is not actually all that’s wrong with Washington but concludes (without getting into specifics) that “[m]oney is the part we could fix.”
Following two large federal “reform” efforts—the Federal Election Campaign Act in the 1970s and the Bipartisan Campaign Reform Act in the early 2000s (better known as McCain-Feingold)—pundits aim for new reform to close the “loopholes” in current laws and to perhaps replace the numerous provisions overturned by the Supreme Court for violating the First Amendment.
But, no matter the latest “reform,” campaign finance laws will continue to serve as an additional tool of dirty politics, not a cure. In fact, because the consequences of violating the law are dire compared to simply losing face or losing an election, we can accurately call campaign finance laws the dirtiest political tool.
A case that the United States Supreme Court will discuss in conference on November 1 and possibly decide to hear in court proves the point. In Worley v. Detzner, a group of citizens in Florida sued the Florida Secretary of State over vague and burdensome campaign finance laws that will choke them in red tape if they choose to speak out about a ballot initiative. In their brief for certiorari to the Supreme Court (represented by our friends at Institute for Justice), they argue: “Telling such groups . . . that they may speak only if they decipher and comply with hundreds of pages of campaign-finance rules, regulations, and advisory opinions is, in practical effect, telling them that they may not speak at all.” Sound familiar?
The Worley brief makes a very important argument: these Florida citizens are not just fearful of government cracking down on them for violating laws they cannot understand, but of citizens who don’t agree with their views complaining to the government in the first place:
Petitioners’ fears that they would have been subject to civil liability for an inadvertent violation of the law were compounded by the fact that, under Florida law, the Secretary of State or any other person may file a sworn complaint with the Florida Elections Commission alleging a violation of the campaign finance laws . . . . The Florida Elections Commission estimates that 98% of the complaints it receives are “politically motivated.” . . . . David Flagg, the investigations manager for the Florida Elections Commission . . . testified that “many times” complaints are filed by individuals seeking “to punish their political opponent” or to “harass that person or otherwise divert their attention from their campaign.”
Ninety eight percent of complaints in Florida are not from citizens or groups who seek to keep politics clean, but who want to distract or punish their political opposition. Florida is not the exception: anyone may file a complaint with the Federal Election Commission, and political opponents often do just that. Grassroots groups and novice political challengers get tripped up, and so do experienced incumbents. Just recently, we helped turn the tide in one of the most heinous examples with Tom DeLay’s prosecution in Texas.
Politics is dirty, because people are dirty. This is the very reason we set up a system of separated powers in the Constitution, not to achieve something as lofty as clean government, but merely to prevent tyranny by pitting the ambition of one branch of government against another. Current campaign finance laws have not alleviated the worst outbreaks within this structure, but have instead isolated, distracted or punished certain voices.
If we call it a “fix,” campaign finance reform is but another support for this adage of government: “if you think the problems are bad, wait until you see our solutions!”