Shame on You: Campaign Finance Reform through Social Norms

Article excerpt

I. INTRODUCTION

In 1998, Senator Russell Feingold squared off against Representative Mark Neumann in a heated contest for a Wisconsin Senate seat. During the campaign, Representative Neumann and Senator Feingold voluntarily entered into a number of campaign finance restrictions.1 Representative Neumann, despite losing the race to Senator Feingold, asserted that those restrictions "showed that campaign finance reform didn't require changes in law and was best handled on a voluntary basis."2 In the 2000 New York Senate race, Representative Rick Lazio echoed Representative Neumann's sentiment and declared that it was he and "Mrs. Clinton's opportunity, to make a statement about our commitment to campaignfinance reform, to demonstrate that we don't need a law to do the right thing."3 Soon thereafter, Representative Lazio and Mrs. Clinton agreed to several voluntary campaign finance restrictions that, among other things, banned soft money expenditures by political parties and numerous interest groups.4 Ironically, Senator Feingold, who is now an avid supporter of increased government regulation of campaign IMAGE FORMULA5

finance, originally proposed the voluntary restrictions, praised by Representative Neumann and used effectively in the 2000 New York Senate campaign.5

Historically, political scandal and public outcry have prompted new regulations and restrictions on political expression and freedom of speech. For instance, the Federal Elections and Campaign Act ("FECA") of 1971 was passed in response to allegedly large and questionable contributions to President Nixon's successful presidential campaign, and the subsequent regulations of 1974 sprung from the Watergate crisis.6 Unlike in the early 1970s, recent campaign finance reform legislation has preceded public outcry and political scandal.7 For example, polls suggest that campaign finance reform has and continues to trail significantly in importance to other issues such as social security, combating terrorism, and education.8 Nonetheless, for several years, Senators John McCain and Feingold have trumpeted the corruptive influence of "soft money"9 in politics to generate support for campaign finance reform.10 On March 20, 2002, their tireless IMAGE FORMULA7

efforts prevailed as the Senate passed the most comprehensive campaign finance legislation in nearly three decades-the Bipartisan Campaign Reform Act of 2002 ("the Act").11

Unlike other public policy issues, campaign finance reform is unique because corrective legislation represents efforts by legislators to regulate their own actions. While Senators McCain and Feingold should be applauded for overcoming significant opposition and waning public interest to pass campaign finance legislation, we should be wary of the motives behind such legislation. For instance, legislators are plausibly seen as largely motivated by self-interest.12 In the name of the public interest, they often advocate views and vote for propositions that further their individual interests.13 The behavior of the legislature is no different regarding the issue of campaign finance reform. For example, incumbents have an incentive to regulate themselves to the disadvantage of would-be challengers.14 In addition, the legislators of the majority race and gender may appear to implement regulations to assure they remain in the majority.15 Legislators are also driven by a desire for uniformity and control at the expense of flexibility and freedom. The effectuation of these perverse incentives is a prime example of how self-interested legislators undermine the public purpose of legislation, thereby creating inefficiencies and additional transaction costs within the campaign finance system.16

This Note has three primary objectives. First, it will show that public choice theory, particularly interest group competition, when applied to campaign finance reform demonstrates the inherent and unavoidable flaws of government-imposed campaign finance IMAGE FORMULA9

regulation. …