Constitutionality of Campaign Finance Reform:

[tombogan03884]

Posted by Orin Kerr:
Political Ideology and the Constitutionality of Campaign Finance Reform:
http://volokh.com/archives/archive_2009_09_06-2009_09_12.shtml#1252541227


   One of the interesting aspects about the constitutional debate over
   campaign finance reform is that conservatives tend to think it's
   unconstitutional while liberals tend to think it's lawful. It's
   interesting to step back and ask, why is that?
     As best I can tell, constitutional theory doesn't provide an answer.
   Both sides seem to make their arguments using modern cases and policy
   arguments. Even when self-proclaimed originalist like Justice Scalia
   and Justice Thomas write opinions explaining votes to strike down
   campaign finance laws, they generally gloss over the history pretty
   quickly before focusing on modern court-made legal doctrine (see,
   e.g., [1]here and [2]here).
     My best guess is that the legal positions polarize as they do for
   two reasons. The first is that the constitutional questions are
   genuinely hard. The doctrine as it comes to us is unusually murky, and
   there are reasonable arguments on both sides. Murky precedents and
   good arguments on both sides tend to trigger ideological divisions:
   The less traditional legal arguments provide clear answers, the more
   judges are likely to gravitate to their political views.
     That brings me to the second point, that the politics of campaign
   finance are pretty polarized. For the most part, conservatives have
   opposed campaign finance reform on policy grounds and liberals have
   favored it. If you look at the [3]vote on McCain-Feingold in the
   Senate, for example, 48 of the 59 "yes" votes were Democrats, with
   most of the 11 GOP Yes votes coming from moderates like Specter,
   Chafee, Collins and Snowe. In contrast, 38 of the 41 "no" votes were
   Republican, with the three Demoratics voting "no" being moderates like
   Ben Nelson.
     So for the most part, I think the votes in campaign finance cases
   pretty much just track the Justices' political views, without much
   more explanation required. An interesting exception is Justice
   Kennedy, who is a very strong opponent of campaign finance laws. I
   tend to think his opposition is not a result of his policy views or
   political commitments as much as a result of his [4]consistently
   robust view of the First Amendment.

References

   1. http://www.law.cornell.edu/supct/html/02-1674.ZX.html
   2. http://www.law.cornell.edu/supct/html/02-1674.ZX1.html
   3. http://mentata.com/ds/retrieve/congress/vote/VC107S22
   4. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=994604
  What are your thoughts on this ? It seems to me that most modern attempts at reform are aimed at stifling debate, while the REAL issue of candidates buying their wins by outspending their opponent goes unaddressed.
How would YOU reform campaign finance ?
Off the top of my head I think that Federal election box on the tax form should be divided up among all candidates evenly, if you spend more than that you are disqualified, no donations, discounts or sponsorships allowed.

[fightingquaker13]

That was a good post Tom, and I agree 100%, well 99% anyway, with the author. The question of HOW to reform campaign finance begs the question. The question is WHY do we need to reform it? The answer is that it takes money to get votes which you need to get elected. The problem is that those who give the money often have interests at cross purposes to those who vote. Assuming for a moment that politicians are purely utility maximizing, self interested actors whose goal is to gain and maintain office, this presents a quandry. Do they go with the interests of their constituents and reject outside money? Or, do they realize that unless they are Ross Perot rich, that without that money, they will never be able to reach out to their constituents and make their case in the first place?
Add to this that the 1A protects political speech and money IS speech for all intents and purposes with a privately owned media which can charge for adds.

The solution? Publically funded elections. Take the average cost of the past race and offer it free of charge to the winners of the primaries (or any other candidate who can get say 20% of the total primary vote) for the general campaign. Let a candidate opt out if they choose. Doing so will cost tens of millions. However, the failure to do so has cost tens of billions in wasteful sweetheart deals. We sort of, kind of, do this for the Presidency. This is misdirected. Where it matters is in Congress. This isn't a panacea and it does come with a price tag. However, I'd rather buy an ounce of prevention than a pound of cure. Let politicians be free of moneyed interests and merely responsible to the voters and you will see change. Those are tax dollars I will willingly spend. As a bonus, this does not effect the 1A at all. Take the public money, or raise you own, your call. No one's speech is curtailed.
FQ13

[tombogan03884]

That was a good post Tom, and I agree 100%, well 99% anyway, with the author. The question of HOW to reform campaign finance begs the question. The question is WHY do we need to reform it? The answer is that it takes money to get votes which you need to get elected. The problem is that those who give the money often have interests at cross purposes to those who vote. Assuming for a moment that politicians are purely utility maximizing, self interested actors whose goal is to gain and maintain office, this presents a quandry. Do they go with the interests of their constituents and reject outside money? Or, do they realize that unless they are Ross Perot rich, that without that money, they will never be able to reach out to their constituents and make their case in the first place?
Add to this that the 1A protects political speech and money IS speech for all intents and purposes with a privately owned media which can charge for adds.

The solution? Publically funded elections. Take the average cost of the past race and offer it free of charge to the winners of the primaries (or any other candidate who can get say 20% of the total primary vote) for the general campaign. Let a candidate opt out if they choose. Doing so will cost tens of millions. However, the failure to do so has cost tens of billions in wasteful sweetheart deals. We sort of, kind of, do this for the Presidency. This is misdirected. Where it matters is in Congress. This isn't a panacea and it does come with a price tag. However, I'd rather buy an ounce of prevention than a pound of cure. Let politicians be free of moneyed interests and merely responsible to the voters and you will see change. Those are tax dollars I will willingly spend. As a bonus, this does not effect the 1A at all. Take the public money, or raise you own, your call. No one's speech is curtailed.
FQ13

The areas I high lighted is where I disagree, It should take a sound policy to get votes, not money. Obama is the classic reason that opting out of public funding should NOT be an option. BO did NOT win because he had a better message, most of what he said angered a large number of voters, He won because he spent more than any 3 candidates in US history Basically he paid $25 for every $1 he will (legitimately) earn during his term. Who were his donors ? Nobody really knows because he did not accept the federal matching funds that would have required him to make that information available.
I think we should increase the deduction from taxes to $10 per person, split that up between ALL serious candidates for Federal Office (Pres, Sen. and Cong. )And that is all they can spend, no opting out, no exceptions. What they are saying has nothing to do with How they are paying for it, 1st Amendment should have no place in a debate on FINANCE reform

[fightingquaker13]

The areas I high lighted is where I disagree, It should take a sound policy to get votes, not money. Obama is the classic reason that opting out of public funding should NOT be an option. BO did NOT win because he had a better message, most of what he said angered a large number of voters, He won because he spent more than any 3 candidates in US history Basically he paid $25 for every $1 he will (legitimately) earn during his term. Who were his donors ? Nobody really knows because he did not accept the federal matching funds that would have required him to make that information available.
I think we should increase the deduction from taxes to $10 per person, split that up between ALL serious candidates for Federal Office (Pres, Sen. and Cong. )And that is all they can spend, no opting out, no exceptions. What they are saying has nothing to do with How they are paying for it, 1st Amendment should have no place in a debate on FINANCE reform

I want to focus on your first and last points. IT SHOULD TAKE SOUND POLICY TO GET VOTES. And you should be attracted to women based on character not looks and eat your spinach and not sit too close to the TV. The fact is that sound policy ideas that no one gets to hear will be drowned out by the noice of smoothly marketed BS (insert your least favorite product or politician here). People come to belive what they hear. Its why internet hoaxes have legs.
As far as your last point: 1A SHOULD HAVE NO PLACE IN CAMPAIGN FINANCE REFORM, well that's MCain's view. The Court disagees. The whole "Congress shall make no law.." part is hard to get around. Short of ammending the 1A (a can of worms NO ONE wishs to open) the only way out is to provide a serious incentive to forgo private funds. As I said, it ain't perfect, it ain't cheap, but it does pass Constitutional muster.
FQ13

[tombogan03884]

I want to focus on your first and last points. IT SHOULD TAKE SOUND POLICY TO GET VOTES. And you should be attracted to women based on character not looks and eat your spinach and not sit too close to the TV. The fact is that sound policy ideas that no one gets to hear will be drowned out by the noice of smoothly marketed BS (insert your least favorite product or politician here). People come to belive what they hear. Its why internet hoaxes have legs.
As far as your last point: 1A SHOULD HAVE NO PLACE IN CAMPAIGN FINANCE REFORM, well that's MCain's view. The Court disagees. The whole "Congress shall make no law.." part is hard to get around. Short of ammending the 1A (a can of worms NO ONE wishs to open) the only way out is to provide a serious incentive to forgo private funds. As I said, it ain't perfect, it ain't cheap, but it does pass Constitutional muster.
FQ13

That's BS. There is no reason at all to involve the First Amendment in the control of how much money is spent to buy a job.
As to your first point, If each candidate has an equal, limited amount of funding there is no margin for the BS that you so PCishly refer to as "noise"money must be used efficiently to get the MESSAGE out or else you run out and fizzle. Heres another thought, If a candidate can not function on a limited CAMPAIGN budget how can he be qualified to comment on a GOVERNMENT budget ?

[Sponsor]

[fightingquaker13]

That's BS. There is no reason at all to involve the First Amendment in the control of how much money is spent to buy a job.
As to your first point, If each candidate has an equal, limited amount of funding there is no margin for the BS that you so PCishly refer to as "noise"money must be used efficiently to get the MESSAGE out or else you run out and fizzle. Heres another thought, If a candidate can not function on a limited CAMPAIGN budget how can he be qualified to comment on a GOVERNMENT budget ?

Tom I agree with you in principle. The problem is that free speech isn't free. It costs money to get your message out. The Court has ruled that if you limit how much you can raise or spend you are by implication limiting how much you can speak. I don't disagree with your point, I just do have a hard time squaring a government "thou shalt not" prohibition on me being able raise cash to buy TV time to spread my message. That being said, everyone who gives wants something. The question is how do you balance two competing public interests? I find this to be tough issue as the intent behind campaign finance reform is good. Its the implications of the HOW that are troubling.
FQ13

[tombogan03884]

 OK, now I see where you get the 1A connection. And we know SCOTUS is infallible, like with the Dred Scot decision. The EFFICIENT use of the funding would be part of what separates a REAL candidate from the current popularity contest we have now. Funds would have to be controlled by an impartial source The one that pops off the top of my head would be some one at the treasury Dept. or FEC. This would in fact constitute another "Test" aspect, If the candidate can not abide by the Election rules he is not fit to be President, (for example the recent arrests of ACORN workers in Fl. ) As it is now, any candidate who outspends his opponent 3 to 1 should be barred from public office just on principle.