The Futility of Campaign Finance Restrictions
by Ari Armstrong
[This column first appeared in the January 29 edition of the Rocky Mountain News. It was reproduced in the March/April edition of Colorado Liberty.]
It's a classic case of the cure being worse than the disease, like the doctors of old who would leech the blood out of their patients. No member of the general public wants to see moneyed interests buying special favors from government officials. However, moves to restrict campaign financing don't solve the problem: they make the problem worse.
Colorado's recent experiences prove the point. After the courts threw out a 1996 initiative limiting campaign finance, state legislators passed their own limits on political donations. What happened? In the 2000 elections, Democratic Senator Mike Feeley created a number of front groups to siphon money from millionaire Jared Polis into tight senate races. (Polis also spent large sums of money to win a spot on the State Board of Education.) Feeley's move is largely responsible for tipping the senate to the Democrats for the first time in many years.
Now State Rep. Dan Grossman wants to close the "loophole" that allows multiple donations to a political party like the ones Polis made. However, the only effect of the new law would be to create additional "loopholes."
Another increasingly popular way to circumvent campaign finance restrictions is to create nonprofit "educational" groups. By law, such groups may not endorse particular candidates. They may, however, provide "information" about candidates. Information along the lines of, "We're not telling you whom to vote for, but Candidate X is a lying jerk who wants to drug your son, rape your daughter, ruin your schools and let criminals rule the world." (Such language is barely an exaggeration of what actually went out in the 2000 elections.) So let's close the "education group loophole" as well!
But hold on to those leeches, just for a moment. The first item of the Bill of Rights enshrines into law a fundamental principle of civil liberties: "Congress shall make no law... abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." The Fourteenth Amendment further guarantees these rights.
It is impossible to restrict the spending of those nasty "special interests" without infringing the rights of free speech. Besides, one person's nasty special interest group is another person's champion of good government. Thus we witness the spectacle of many who support campaign finance restrictions cheering on the Democrats' senate victories.
True, some individuals and corporations invest money in political campaigns in order to reap specific paybacks, such as subsidies or protectionism. But other funds are spent by groups that genuinely care about the issues. If someone strongly favors or disfavors abortion, for instance, that person has every right spend money advocating that issue.
If anything, campaign restrictions further entrench the current political powers. Large, well-funded organizations like the Democratic and Republican parties are adept at threading money through the inevitable "loopholes." The grassroots activists and the minor parties, meanwhile, lack the legal expertise to circumvent the law, and they run the greatest risk of unintentionally violating the complicated provisions.
The only ultimate solution to the campaign finance problem would be to absolutely prevent political speech, except by the official campaigns. For example, newspapers regularly endorse particular candidates. If campaign restriction laws are pushed far enough, interest groups will create their own newspapers for political advocacy. Another "loophole."
The alternative is to repeal existing campaign restriction laws. At least then donations would usually be direct and easily observed. Such an approach relies on voters to see through high-expense campaigns and vote on the issues.
That doesn't mean the problems of campaign finance are beyond fixing. Usually, those who advocate campaign restriction laws also support a big government. Those of a more libertarian bent envision government as a "night watchman" to protect person and property. They point out that, if the levers of power didn't control so much of our lives, there wouldn't be the incentive to buy access to those levers. Perhaps reducing the size and scope of government activity would naturally limit the problems of money in politics.
The supporters of campaign finance restrictions rightly diagnose the disease: special interests buy undue power. But if they proceed with their cure, they will find they've drained away the lifeblood of our constitutional republic: free speech.