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Time For Real Campaign Finance Reform

Monday’s debate in South Carolina spent what I thought was an inordinate amount of time focusing on the details of SuperPAC ads and who was responsible for what, which at one point led Mitt Romney to make this comment:

ROMNEY: We all would like to have Super PACs disappear, to tell you the truth. Wouldn’t it nice to have people give what they would like to to campaigns and campaigns could run their own ads and take responsibility for them. But you know what, this campaign is not about ads, it’s about issues.

BAIER: So governor Romney, in the general election, if you are the nominee you would like to see Super PACs ended?

ROMNEY: Oh, I would like to get rid of the campaign finance laws that were put in place McCain-Feingold is a disaster, get rid of it. Let people make contributions they want to make to campaigns, let campaigns then take responsibility for their own words and not have this strange situation we have people out there who support us, who run ads we don’t like, we would like to take off the air, they are outrageous and yet they are out there supporting us and by law we aren’t allows to talk to them.

I haven’t spoken to any of the people involved in my Super PAC in months and this is outrageous. Candidates should have the responsibility and the right to manage the ads that are being run on their behalf. I think this has to change.

Romney made a similar comment yesterday, and he has received unlikely support from Washington Post columnist Richard Cohen, who is by no means either a conservative or a Republican:

Sheldon Adelson is supposedly a bad man. The gambling mogul gave $5 million to a Newt Gingrich-loving super PAC and this enabled Gingrich to maul Mitt Romney — a touch of opinion here — who had it coming anyway. Adelson is a good friend of Gingrich and a major player in Israeli politics. He owns a newspaper in Israel and supports politicians so far to the right I have to wonder if they are even Jewish. This is Sheldon Adelson, supposedly a bad man. But what about Howard Stein?

The late chairman of the Dreyfus Corp. was a wealthy man but, unlike Adelson, a liberal Democrat. Stein joined with some other rich men — including Martin Peretz, the one-time publisher of the New Republic; Stewart Mott, a GM heir; and Arnold Hiatt of Stride Rite Shoes — to provide about $1.5 million for Eugene McCarthy’s 1968 challenge to Lyndon Johnson. Stein and his colleagues did not raise this money in itsy-bitsy donations but by chipping in large amounts themselves. Peretz told me he kicked in $30,000. That was a huge amount of money at the time.

That sort of donation would now be illegal — unless it was given to a super PAC that swore not to coordinate with the candidate. And until quite recently, even that would have been illegal — the limit being something like $2,400. Many people bemoan that the limit is no more, asserting that elections are now up for sale, as if this was something new. They point to the Adelson contribution and unload invective on the poor right-wing gambling tycoon. I understand, but I do not agree.

Back in 1967, a small group of men gave McCarthy the wherewithal to challenge a sitting president of the United States. The money enabled McCarthy to swiftly set up a New Hampshire operation and — lo and behold — he got 42 percent of the popular vote, an astounding figure. Johnson was rocked. Four days later, Robert F. Kennedy, who at first had declined to do what McCarthy did, jumped in himself. By the end of March 1968, Johnson was on TV, announcing he would not seek a second term.

My guess is that a lot of the people who decry what Adelson has done loved what Stein, Peretz and the others did. My guess is that they cheered Johnson’s defeat because they loathed the Vietnam War and wanted it ended. My guess is that while they pooh-pooh the argument that money is speech, they cannot deny that when McCarthy talked — when he had the cash for TV time or to set up storefront headquarters — that was political speech at the highest decibel.

(…)

History was changed by the sort of political donations that are now derided. Lyndon Johnson stepped down. The Democratic Party was ripped right up the middle. Bobby Kennedy joined the race (and was assassinated in June), and nothing — but nothing — was the same afterward. McCarthy’s quixotic campaign became so real that Paul Newman came up to New Hampshire, and so did throngs of kids with long hair and incredible energy. I was there, a graduate student-cum-cub reporter, eating off the expense accounts of soon-to-be Washington Post colleagues (My God, what a life!). So when the Supreme Court says that money is speech and ought to be protected, I nod because I was in New Hampshire in 1968 and I know.

Sheldon Adelson is not my type of guy. I don’t like his politics. But he has no less right to try his own hand at history than did that band of rich men who were convinced the war was a travesty-tragedy — and they were right. Since 1968, my views have changed on many matters. But my bottom line remains a fervent belief in the beauty and utility of free speech and of the widest exchange of ideas. I am comfortable with dirty politics. I fear living with less free speech.

In today’s world, the most that Stein would have been able to do for McCarthy would be to give money to a pro-McCarthy SuperPAC that would run ads against the an incumbent President in New Hampshire. Perhaps helpful, but not nearly as helpful as the direct campaign cash that McCarthy got in 1967 that allowed him to set up a campaign organization that was able to take advantage of the grassroots support he had in the Granite State and, to the surprise of everyone, bring down a President and change the course of history irrevocably. For all the talk about SuperPAC money today, it’s worth noting that none it helped Newt Gingrich or Rick Perry or Rick Santorum accomplish something as simple as getting on the ballot in Virginia (indeed, it would have been illegal for a SuperPAC to fund a petitioning effort by the campaign). As Cohen notes, with that donation from Stein, there would have been no McCarthy campaign and there was little that a bunch of SuperPAC ads would have been able to do to make up for that simple fact.

Cohen correctly goes on to point out that the 1968 and 1972 elections did reveal the need for at least some form of campaign finance regulation. The Nixon campaign in both years in particular engaged in practices that were at the very least sleazy if not borderline criminal even in an era where there were very few laws relating to donations to politicians. Additionally, it was campaign finance issues that were, in part, behind the Watergate break-in and subsequent cover-up.

It was in response to these events that our modern campaign finance laws came into being and, in at least some respects, the laws were motivated by good intentions. For example, the disclosure of the identity of campaign contributors and the recipients of campaign expenditures strikes me as a good idea. The public good is served when voters are able to discover who donates to their leaders, and who receives campaign contributions. Additionally, laws that bar campaign dollars being used for non-campaign purposes protect people who do donate to campaigns from being defrauded. Additionally, if I donate to a political campaign, I’d want to know if the campaign was spending unusual amounts of money on services provided by companies owned by friends or relatives of the candidates. Each of these, along with other regulations designed to ensure the financial integrity of political campaigns serve legitimate public purposes.

Where the initial post-Watergate attempt at campaign finance reform, and all of the efforts that followed it, when wrong, though, was in placing limits on the amount someone could contribute to a campaign. The logic for these restrictions is probably best summed up in a Washington Post Editorial published today in response to the suggestions that Romney made on Monday. Ultimately though, I think those arguments are entirely unpersuasive. If there is a lack of confidence in “the system” as the Post claims, it’s because the system itself has created a situation where the kind of back-door donations exemplified by the SuperPACs come into existence.

The only thing that four decades of laws restricting the amount of campaign contributions has accomplished is to create a system where donations come in the back door. It was the restrictions themselves that led to the creation of the myriad different forms of political action committees that now exist in this country, including SuperPACs. If individuals were free to donate as much as they wanted to a candidate there would be almost no need for political actions committees to being with, and at the very least these types of groups would play a much smaller role in campaigns than they do today. Instead of spending an inordinate amount of time in at least two debates now arguing over who is responsible for which SuperPAC ad, there would be no question who was responsible because the messaging would be coming directly from the campaigns themselves. Candidates wouldn’t be able to say “Hey, that’s not my, that’s a SuperPAC and I can’t legally tell them what to do,” they’d have to take responsibility for the ad whether it was positive or negative. Isn’t that the better way do things?

It’s also worth noting that the individual donations themselves become something of a joke because they are so easy to evade. Examine the campaign finance report of your average candidate for Federal office and you’ll eventually notices something very interesting. There will be multiple donations for the exact amount of the limit by people with the same last name living at the same address. Since individuals can each make their own contribution, a donation in the name of a father, mother, and any number of children is each subject to its own limit and it’s perfectly legal to send in four or five different checks to the same candidates in each of their names. Everyone knows that this money typically only comes from one person, but the law allows it. Again, the law creates the ability to evade it and there’s really no way that the law could be written that would make this particular form of “evasion” illegal.

We’d still need laws requiring disclosure, of course. In fact, I would suggest that our current system, where contributions only become part of a searchable public record every three months isn’t strict enough. Perhaps it made sense in the 1970s and 80s when everything was done on paper, but in today’s world even the most bare-bones Presidential campaign uses technology to track its finances, and even campaigns for the House or Senate have at least one employee or contractor whose sole responsibility is campaign finance law compliance. Given that, there’s no reason that disclosure cannot be done on a more frequently basis. Monthly disclosures of at least the identity and amount of contributions seems entirely reasonable to me, but that’s probably an issue that people who actually run campaigns for a living should be consulted on before we change the law. A phase-in period may be advisable, for example, to allow campaigns to get used to disclosure requirements that are more strict than what they’ve been used to. In any case, voters should be able to go online on a regular basis and find out who is giving money to the people seeking their votes, and how that money is being spent, and that information should be up-to-date.

Our current campaign finance system is broken. The solution, though, isn’t more laws, or public financing,  or any of the other myriad of proposals you’ll hear from the “good government” crowd. It’s to admit that the central part of the campaign finance laws we passed after Watergate was a mistake, and to start over again.

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About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May, 2010 and also writes at Below The Beltway. Follow Doug on Twitter | Facebook

Comments

  1. Franklin says:

    Since individuals can each make their own contribution, a donation in the name of a father, mother, and any number of children is each subject to its own limit and it’s perfectly legal to send in four or five different checks to the same candidates in each of their names.

    I doubt anybody has a problem with this. What people are rightly worried about is elections bought by rich folks or “corporations are people” for hundreds of thousands of dollars, completely negating the concept of one person, one vote.

    Like or Dislike: Thumb up 10 Thumb down 0

  2. Dave Schuler says:

    My campaign finance reform is even simpler: ban political advertising on television, amending the Constitution if necessary to do it. That accounts for the majority of spending by campaigns.

    Political advertising is either banned outright or severely restricted in almost all OECD countries. The UK, France, and Germany aren’t exactly slave states.

    Like or Dislike: Thumb up 11 Thumb down 0

  3. legion says:

    Let people make contributions they want to make to campaigns, let campaigns then take responsibility for their own words and not have this strange situation we have people out there who support us, who run ads we don’t like, we would like to take off the air, they are outrageous and yet they are out there supporting us and by law we aren’t allows to talk to them.

    Here’s the head-fake: Even if the rules were re-written exactly like Mitt said, that wouldn’t _prevent_ any non-affiliated group from running an ad the candidate “didn’t like” – even if it was just so nasty he just wanted to be able to claim he didn’t make the ad himself. The _only_ thing these so-called “reforms” would do is let megacorps stop worrying about getting _caught_ buying politicians.

    Like or Dislike: Thumb up 6 Thumb down 0

  4. @Dave Schuler:

    Hence one of the reasons I’m glad we have a First Amendment.

    Like or Dislike: Thumb up 0 Thumb down 1

  5. Dave Schuler says:

    @Franklin:

    I’m not so sure. As I understand what Doug is suggesting he’s advocating unlimited campaign contributions by individuals, nothing by organizations. Since labor unions are the backbone of Democratic Party financial support, that would give Republicans a substantial advantage.

    If he’s not suggesting that, then I guess he’s just suggesting a sunshine law. I dunno.

    Like or Dislike: Thumb up 0 Thumb down 0

  6. ponce says:

    We just have to wait for both parties to form effective boycott lists of companies that have given money to their political enemies to stop them from funding candidates and causes.

    I’ve already stopped shopping at Target, Home Depot and Costco, plus I refuse to buy anything the Koch Bros.’ sweat shops pump out.

    Like or Dislike: Thumb up 0 Thumb down 0

  7. @Franklin:

    If the source of the contributions is fully disclosed then I guess I don’t see the problem.

    Like or Dislike: Thumb up 0 Thumb down 0

  8. PJ says:

    @Doug Mataconis:

    Hence one of the reasons I’m glad we have a First Amendment.

    There’s already restrictions on what’s allowed on public airways.

    It’s rather simple, just define political ads as obscene speech.

    Like or Dislike: Thumb up 0 Thumb down 0

  9. @PJ:

    There’s already restrictions on what’s allowed on public airways.

    The vast majority of which are inappropriate and unnecessary. It is not the government’s job to be the nation’s nanny

    Like or Dislike: Thumb up 2 Thumb down 0

  10. I think this is exactly backwards. It protects the least defensible form of advocacy (just giving a pile of money to a candidate), while removing all rights to the one with the biggest first ammendment nexus (a group of people who want to get out a message that’s important to them, regardless of what any particular candidate thinks about it). It also extends the elitist idea that particular politicians own particular issues and that anyone who wants to discuss that issue somehow “belongs” to that politician and can only due so under their direction.

    Like or Dislike: Thumb up 0 Thumb down 0

  11. Rob in CT says:

    Cool, a good idea for campaign finance reform you say? Sweet, let’s see what it is…

    Repeal McCain-Feingold. Ok, and?

    Oh, and nothing. Yeah, that totally solves the problem.

    I’m open to the possibility that M-F is a failure. It certainly seems that is the case.

    The core problem is money = speech. Thus, if you are wealthy, you get to speak louder. I really don’t know how to deal with that in a way that ensures the cure isn’t worse than the disease.

    And of course even if you deal with that there is still the access and “revolving door” issues, which I think might be more corrosive.

    Like or Dislike: Thumb up 0 Thumb down 0

  12. William White says:

    Campaign finance reform is very easy:
    1. Allow only registered voters to contribute to political campaigns
    2. Allow only candidates to accept contributions
    3. Provide a schedule A tax deduction for the first $1,000.
    4. Require identification of all political advertising.

    I know something this simple is beyond the lawmaking capability of congress, primarily because it reduces the money in the game. Without big money, politics is real work.

    Like or Dislike: Thumb up 2 Thumb down 1

  13. john personna says:

    I’d do “flesh and blood people only, $5000 cap.”

    That would seriously favor the wealthy, but not enough for them to be happy, unfortunately.

    Like or Dislike: Thumb up 4 Thumb down 0

  14. Vast Variety says:

    @Doug Mataconis: The problem becomes that when people want to hide their identity they will just funnel their contributions through the corporation.

    While not entirely accepting of the idea of unlimited contributions I would be able to live with it as long as there was full disclosure and it only came from individuals. Corporations and organizations of any kind should not be donating to political campaigns for candidates or issues. Now if you could find a way to ensure that Organizations and Corporations who donate to campaigns are required to disclose the names of every individual who donates money through them then I could probably even live with that.

    Like or Dislike: Thumb up 1 Thumb down 0

  15. @William White:

    2. Allow only candidates to accept contributions

    What if there’s no candidate backing my position? e.g. if I believe in non-interventionism, when interventionist Romney and interventionist Obama are running this fall am I completely blocked from making my argument?

    My right to advocate politically shouldn’t be limited to only those issues that the major parties are willing to allow discussion of.

    Like or Dislike: Thumb up 1 Thumb down 0

  16. john personna says:

    @Vast Variety:

    Yet another reason to end corporate donations of all kinds, inc. unions and etc.

    It’s not like these pseudo people ever got the vote. IBM is not registered at a township in New Jersey or whatever.

    Like or Dislike: Thumb up 1 Thumb down 0

  17. Jib says:

    @PJ: I can accomplish the same thing much more simply. Just tax all TV ad revenues for political campaigns at 90%.

    If you are a registered PAC or campaign, then any money you pay for TV ads is taxed at 90%. Basically make it so TV stations make no money from political ads. If they can not make any money, they wont take the ads. Requires no constitutional amendment because federal taxing authority is already granted under a constitutional amendment.

    It will never happen of course. Politicians love running TV ads. They are never going to vote for anything that limits them.

    Like or Dislike: Thumb up 0 Thumb down 0

  18. PD Shaw says:

    @Dave Schuler: “ban political advertising on television, amending the Constitution if necessary”

    I have to wonder if that technology would be largely obsolete by the time it was ratified. There appears to me to be some diminishing returns on the t.v. spending, particularly in the Presidential general elections.

    @Franklin: How do you see rich folks and corporations “buying” elections? I personally don’t see a lot of value in much of the advertising I see.

    Like or Dislike: Thumb up 0 Thumb down 0

  19. Hey Norm says:

    Money is speech, and corporations are people.
    In the meantime Gingrich is now on the Gold Standard bandwagon.
    The human race is f’ing hopeless.
    All we can do is increase AGW exponentially and pray to God she ends it all for us sooner than later.

    Like or Dislike: Thumb up 1 Thumb down 0

  20. Eric says:

    @Doug Mataconis:

    I got to say, this is a very interesting look into fixing this mess we have. I love the perspective of making the campaign finance system more accountable to the politicians and campaigns and have them more responsible. However, I just find one problem.

    The Citizens United still set the bar that money is free speech. This would technically allow SuperPACs to still form and it still would not be able to coordinate ads, ideas, and such with the person running for office. I’m not sure if there are any solutions to solving that kind of problem (there probably isn’t).

    But I got to say, this proposal you have is a start to reforming campaign finance for the better (and all just taking away the laws)

    Like or Dislike: Thumb up 0 Thumb down 0

  21. Jay Dubbs says:

    @Doug Mataconis: One thing missing from you idea of reform (or more accurately the removal of current restrictions)is the penalty for failure to abide by the law. Right now we have a politicied FEC that is still dealing with issues from the 2008 campaign. And even then not handing out any punishment of consequence. If you are going to change the system there has to be some sort of substantial (and quick) punishment for breaking the rules.

    Having been in the political money business, I prefer that there be restrictions on donations and immediate disclosure. But if the SC is going to allow some parties to have more speech than other (which I think is both wrong on the Constitution and the policy), then remove the limits and require immediate disclosure. But either way, you have to have a mechanism for punishing those who break the law, and not just four years later.

    Like or Dislike: Thumb up 1 Thumb down 0

  22. Moosebreath says:

    As soon as I saw the title, I predicted it was going to be yet another Mataconis post advocating giving more power to the wealthy. And he never disappoints.

    Like or Dislike: Thumb up 5 Thumb down 2

  23. David M says:

    How about only minimal political donations by individuals, none by corporations, no TV advertising and publicly financed elections? No need to make things more complicated than they need to be.

    Like or Dislike: Thumb up 1 Thumb down 0

  24. Franklin says:

    @Dave Schuler:

    OK, all I saw was repeal M-F, nothing else. The TV idea is interesting, but I think it would have to include Internet advertising videos as well.

    @PD Shaw:

    You know, I would agree with you except for the fact that they demonstrably work. I don’t feel like I’m influenced by McDonald’s commercials, either, because I never go to McDonald’s, but I still wonder if I snack more after seeing one (which studies show to be the case).

    Like or Dislike: Thumb up 0 Thumb down 0

  25. @David M:

    publicly financed elections

    There’s two problematic alternatives with publically financed elections: either you finance everyone who wants to run, in which case you waste billions of dollars (If I run for president, do I get as much as the Republican nominee?) or you have incumbent politicians drawing up rules on who is allowed to challenge them in office.

    Neither of these is a good tradeoff.

    Like or Dislike: Thumb up 1 Thumb down 0

  26. Franklin says:

    By the way, I think we’re treading on the number one problem with politics, I just don’t know how to solve it. If I could wave my magic wand, I’d probably come up with something closer to public-financed campaigns, although that has its own problems.

    Like or Dislike: Thumb up 0 Thumb down 0

  27. OzarkHillbilly says:

    Doug, I rest my case. Corporations are not people. You have now been “bitch-slapped”. Try again.

    Like or Dislike: Thumb up 1 Thumb down 0

  28. Dazedandconfused says:

    I believe your points are well taken Doug, but I believe that the subject of campaign contributions and money in politics has to include how that works in Congress and the Senate an not be strictly focused on Presidential elections.

    Citing from memory here, from Fritz Hollings “Making Government Work”, where he proposed a constitutional amendment giving the Congress power to regulate their campaign spending. His spiel ran something like this:

    A typical Senate race was running about $6 million. Do the math, and that means a Senator has to average about $20,000 a week, and that was a couple of decades ago. That’s a lot to ass kissing. I think Rahm told some Congressman in the shower he needed to raise about $30,000 a week to stay in the game.

    Like or Dislike: Thumb up 0 Thumb down 0

  29. Just nutha ig'rant cracker says:

    Personally, I have no problem with acknowledging that our government is essentially an aristocracy (though mostly non-hereditary) with the rich having the loudest voices and the most influence. Eventually, their greed will bring the whole house of cards down on top of us because economics is eventually self-correcting. When you elect greedy, self-serving, and inflexibly idological loons, you get this conversation, Laissez the bon temps roullez!

    Like or Dislike: Thumb up 0 Thumb down 0

  30. superdestroyer says:

    @William White:

    Such a plan would be incumbent protection and would reward certain organized groups such as MSM, labor unions, and the public sector. Couple limiting money with gerrymandering and there would be almost to turnover in politics.

    Like or Dislike: Thumb up 0 Thumb down 0

  31. superdestroyer says:

    @Jib:

    There is no way such a law could work. How do you define a poltical ad versus an advocacy ad? Such a tax law would be done with the intent of restricting speech and most courts would rule it unconstitutional.

    Like or Dislike: Thumb up 0 Thumb down 0

  32. TheColourfield says:

    “Romney made a similar comment yesterday, and he has received unlikely support from Washington Post columnist Richard Cohen, who is by no means either a conservative or a Republican:”

    I stopped reading there. Anyone who cites Cohen in a positive manner is silly.

    Like or Dislike: Thumb up 0 Thumb down 0