The Lonely Death of Public Campaign Financing

By Esenberg, Richard M. | Harvard Journal of Law & Public Policy, Winter 2010 | Go to article overview

The Lonely Death of Public Campaign Financing


Esenberg, Richard M., Harvard Journal of Law & Public Policy


INTRODUCTION

I.   SPEND IT YOURSELF: THE DISTINCTION BETWEEN
     EXPENDITURES AND CONTRIBUTIONS
     A. Origin of the Distinction
     B. Persistence of the Distinction
     C. The Nature of Corruption: Setting
        Expenditures and Contributions Apart

II.  WHACKING THE MOLE: EXPENDITURES
     SURVIVE
     A. An Attempt to Limit Independent
        Expenditures
     B. The Protection of Issue Advocacy
        1. The Continued Viability of
           Issue Ads
        2. WRTL II Suggests a Narrow View
           of the Corruption Interest

III. THE PLAYING FIELD IS NOT FLAT: WILL PUBLIC
     FINANCING FADE AWAY?
     A. Davis v. FEC: Helping One Side
        Burdens the Other
     B. The Implications of Davis and WRTL II

IV. LETTING THE MOLES GO: WRTL II AND
    DAVIS AS CAUSE FOR RELIEF

CONCLUSION

INTRODUCTION

It may be a cliche to observe that campaign finance reform has proved conclusively that the road to perdition is paved with good intentions and that unforeseen consequences plague the human condition. (1) Perhaps all areas of the law are, to a greater or lesser degree, evidence of these sad truths. (2) Nevertheless, our continuing quest for "clean" elections and cosmic justice in the realm of campaign finance brings to mind Albert Einstein's reflections on insanity: "doing the same thing over and over again and expecting different results." Remarking on the inability of years--actually decades--of reform to wring "excess" money out of the process, Chief Justice John Roberts declared that "[e]nough is enough." (3) Perhaps he is right.

Much of the problem with reform arises from constitutional stumbling blocks. Although the Supreme Court's guidance has been rather fluid, (4) the core of the problem has been the idea that there is a constitutional distinction between the regulation of expenditures and contributions. (5) Restrictions on the latter are often claimed to serve more directly the interest in avoiding the apparent or actual quid pro quo corruption that the Court has sometimes, (6) but not always, (7) claimed is the only justification for regulation. The Court has said restriction of the former more substantially impairs First Amendment values because it directly limits the message chosen by the speaker and his ability to disseminate it. (8)

By permitting virtually no restrictions on expenditures by a candidate (9) and relatively robust regulation of contributions to a candidate, (10) the Court's interpretation of the First Amendment has created the modern phenomenon of the self-funded millionaire politician for whom public office is a prerogative of family wealth or a nice coda to a successful business career. (11) In 1972, General Motors heir Stewart Mott financed an experienced public servant, George McGovern. (12) In 1992, H. Ross Perot and Steve Forbes ran for public office themselves.

There has been more room for regulation of expenditures on behalf of a candidate, (13) but statutory interpretation, (14) regulatory omissions, (15) and constitutional limitations (16) have left room for a brisk business in independent expenditures that, rather than promote a favored candidate, criticize the positions of his opponent. This structure has given us the current phenomenon of sepia-toned advertisements urging us to call Senator Foghorn and tell him to stop starving children (17) and destroying the Republic. Although negative campaigning is not a current phenomenon or the product of regulation, (18) the modern independent ad--attacking in the guise of attempting to persuade--is certainly encouraged by regulation and the desire to avoid its limitations. (19)

Regulatory responses have ensued, but money has proven to be difficult to tame. What cannot be done through contribution can be done with expenditure. Dollars that can no longer be given to a candidate are given to a political party. Money that cannot be contributed to a party is given to an independent organization. …

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