Campaign Finance Reform Myths
Byline: Bruce Fein, SPECIAL TO THE WASHINGTON TIMES
Last month, the U.S. 9th Circuit Court of Appeals offered a preview in Jacobus vs. State of Alaska (Aug. 12, 2003) of the pivotal elements that will inform the United States Supreme Court in deciding the constitutionality of the McCain-Feingold federal campaign finance reform legislation. Four hours of oral argument were held by the high court in a case attacking the federal law in McConnell vs. Federal Election Commission on Sept. 8, and a ruling may be forthcoming as early as the first Monday in October.
In Jacobus, a three-member circuit court panel generally sustained an Alaskan edition of McCain-Feingold as applied to cripple soft money contributions in state campaigns, i.e., donations not intended to influence particular elections. Writing for the panel, Judge Richard A. Paez endorsed the counterfactual although politically correct speculation that soft money plunges voter turnout and engenders public disillusionment with the electoral system. The flabby Jacobus rationale underscores the centrality of judicial philosophy and prejudices to constitutional campaign finance edicts.
In 1996, the Alaska legislature revamped its campaign finance system in accord with crusading scourges who blame the lion's share of all political ills to private money in elections. Among other things, corporations and labor unions were prohibited from soft-money contributions to any political party to expand the party base, to support or oppose referenda, initiatives, or recalls, to influence the nomination or election of candidates, or otherwise promote the party's fortunes. Individual soft money contributions were capped at $5,000. But the justifications for Alaska's anathema of soft money were trifles light as air.
The 1996 Act's professed reforming purpose was "to restore the public's trust in the electoral process and to foster good government." The Josephson Institute, in a report commissioned by the Alaska State Senate, fretted that "the level of trust and confidence in the integrity of the legislature is disturbingly low." Popular blather bemoaned that corruption and the appearance of corruption were rife in Alaska politics.
What speaks volumes, however, is that Alaska was unable to demonstrate soft money had ever been employed to bribe or otherwise criminally corrupt a government official. The state was unable to show a soft money ban would raise voter turnout or boost public confidence in the legislature or the electoral process. Indeed, during the seven years postdating the ban, no legislative or other study has found a sustaining jump in Alaska voter participation or a climb in the public confidence scale.
That conspicuous gap in proving a nexus between soft money and voter apathy or political alienation or despair is unsurprising. States and the federal government sport a widely discrepant array of campaign finance restrictions on private contributions or expenditures. …