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Is money in politics an intractable problem?

Courtesy of my Aunt Mikki, I read a fascinating article today about Lawrence Lessig’s Quixotic quest to bring about an “atomic” change to campaign finance law.  His approach is to help elect candidates pledging to support reform, but as even he concedes, any laws restricting spending are likely to be struck down as unconstitutional.

In my view, the Supreme Court has truly made this an intractable problem.  The issue is very real: in order to secure election, a candidate needs to raise hundreds of thousands of dollars for every office.  Senate campaigns require millions.  Presidential races will soon be billion dollar enterprises.

This means, in practical terms, that our representatives are really only part-time public servants.  A large portion of their time must be spent courting donors and dialing for dollars.  This is an acknowledged problem, and a vast majority of us think it should be fixed.  A vast majority of us are also convinced that it won’t be.

Lessig is a great thinker; I most admire his effort to establish Creative Commons to address draconian copyright laws.  He is not a very savvy political operator, and from the narrative it appears the he reached too far, too fast.  Whether his efforts are ever met with success on the electoral front remains to be seen.

I want to address a more fundamental question: if we were able to reform campaign finance, what would the result look like?

After considering the problems and the extreme limitations on any effort at reform, I am most intrigued by a set of rules that would dramatically impair the right to use money on races outside one’s district or state of residence.  It would look something like this:

Only individuals (read: people, with flesh and blood, corporations and other entities excluded) can contribute to political campaigns.  There is no maximum limit on such contributions.  However, individuals can only contribute to races for seats that directly represent them in government, based on their actual residence.  All donations will be a matter of public record.  So-called “issue ads” are entirely permissible, but for nine months preceding an election, they may not use the name or likeness of a candidate.

Here is my reasoning: if we start from the premise that the Supreme Court treats monetary donations as a form of speech, we have to be very careful about restricting it.  Hence, no limit on individual expenditures.  The protections usually afforded by the option of anonymity in speech is in this case trumped by the compelling governmental interest in election transparency.

There is also legal precedent for restricting money-as-speech rights for outsiders.  We already restrict foreign citizens from contributing to our elections.  A restriction barring a Nevada resident from giving money to a Delaware senate race is a reasonable restriction to prevent Sheldon…ahem…said Nevada resident from exercising an undue amount of influence on an election for an office that does not represent him, er, them.

Similarly, these rules address the farcical distinction drawn by the Citizens United decision regarding “coordination” or “direct electoral appeals.”  First of all, I believe the constitutional concerns regarding association and speech are equally present in a rule forbidding “coordination,” if that rule has any real substance at all.  Isn’t engagement and association the backbone of democratic government?  Additionally, permitting ads saying “Senator Such and Such is a terrible human being, let him know!” while prohibiting ads saying “Vote against Senator Such and Such” makes little sense.  Both ads have comparable effects.

Prohibiting candidate names and likenesses while permitting issue ads means that only voters who actually know the issues on some level can be persuaded/manipulated by a high-dollar ad campaign.  The more aware a voter is, the less likely they are to be persuaded by crappy political advertisements.

There are, of course, several downsides to this approach. A billionaire activist could simply overwhelm his local house race under this rule, giving an unlimited amount of money directly to the campaign.  This concern is somewhat mitigated by the transparency rule.  Since the identity of the donor and the amount of the contributions are public, both the media and other concerned citizens could scrutinize these contributions and factor them in when casting their ballots.  “We all hate Mr. Moneybags, he has been a blight on our community, and he’s given a half million dollars to Senator Such and Such” would be an available line of attack, especially on a local level where the big contributors can be quickly identified and assessed.

In large statewide elections, the benefits are limited, and for the presidential election, they are virtually non-existent.  Electoral college reform merits its own full-length article, and would somewhat mitigate that problem.  The biggest impact would be felt in house races, which are already reaching monetary levels that seemed improbable even a decade ago.  This is crucial, because the House is designed to be a representative body for the people.

As I have previously discussed, our districts are too large, and should be made smaller and more responsive to constituent demands.  Fair and transparent elections, and our methods of funding and conducting them, are the foremost constituent demand.

Finally, prohibitions on corporate and entity-level contributions are currently held unconstitutional by the Supreme Court, but these donations are anathema to fair elections.  They permit an end-run around transparency laws, and allow the wealthy to funnel donations on a large and pervasive scale.  Simply put, this is a problem and needs to stop.  My hope is that the reforms described above, when considered as a whole, would pass constitutional muster.

I should probably conclude by cynically acknowledging that the likelihood of bringing this type of reform is almost zero.  The reason is that elected officials, with the powers and influence of incumbency, rely heavily on out-of-district and organizational/corporate donations to secure re-election. They are afraid to rely solely on the actual citizens they represent.

Which, when you consider it, is really the core of the problem.

-AG