Campaign Finance, Enforceability, and Free Speech

It has become fairly well established in current law, as I understand it, that election financing can be regulated quite substantially without violating free speech. Some of the boundary areas are not so well defined, and regulation of those who are not connected organizationally to any candidate has been held unconstitutional in at least some cases.

Recently, a liberal blogger filed a complaint against Fred Thompson for conducting activities that were inappropriate for an undeclared candidate. (HT: First Read [MSNBC].)

Now I’m not a supporter of Fred Thompson for president. I think it is vanishingly unlikely that I will vote for him. Nonetheless, I think that campaign finance reform is an area where we have taken a situation that was problematic, and made it much worse through legislation. Having politicians bought and paid for by various special interests, whether they are corporations, unions, or large special interest organizations is something that should concern us all.

That, and reducing the cost of elections, is the impetus behind campaign finance reform. We are told that if we keep individual contributions small and limit total expenditure, we will somehow make elections better. Well, it hasn’t happened. What we now have is a kind of game between the politicians to see who can get the biggest boost not allowed to his opponent from the existing laws. And those laws are not very clear, precise, or logical. What exactly is the difference between testing the waters and campaigning, anyhow? Sure the law tries to give criteria, but frankly those criteria look to me like an invitation to lengthy debate and possibly litigation, which is, in fact, what has happened in many cases.

I doubt that any amount of campaign finance reform is going to work, short of the voters deciding to hold politicians accountable for what they say and what they do. I know, I’ve said that about just about everything that we try to do about politicians. But it seems to me that there is nothing that could not be resolved through responsible voting, and at the same time there is no solution to corruption in elections if we do not have responsible voting citizens. All we have done through campaign finance reform and term limits is spread the corruption around and put different labels on it.

There are those who are saying simply that this is the law, and Fred Thompson ought to obey it. But is Fred Thompson truly testing the waters, or is he a real candidate? A great deal of the accusations against him stem from his collecting too much money–something that indicates popularity, and his position near the lead. But he has not, in fact, done all those things the other candidates have, and I don’t think we can make assumptions about the result.

Do we generally care if it’s just the law? I’m guessing that some of the folks who think that the election laws are “just the law” and we should live with them don’t take the same approach to immigration. There the laws are broken and need to be fixed, and we shouldn’t criminalize the people who are living within them. Now you may think these are unfair comparisons, but I have a specific point on which I think they are parallel. We each have some area of the law which we think is so messed up that even honest people doing their best to live lawfully find themselves entangled.

When a law results in otherwise honest people becoming lawbreakers, we should at least reexamine it to see if it’s doing what it should be doing. I think this has happened in the case of immigration. There are areas where workers are unavailable legally, and so people have gotten calloused about hiring them illegally. At a certain point enforcement, while attractive, is unlikely to be successful within a reasonable expenditure of resources. Reform of the law is necessary, and one of the aims of reform must be enforceability.

Similarly I think our election laws have gotten way off course. We are now entrusting a government that can’t be trusted to count ballots properly with monitoring finances and keeping them honest. I think that too much of the energy of a campaign now goes into satisfying legal proprieties. At the same time there are interesting loopholes. A person can spend as much of his own money as he desires, creating an opening favoring incredibly rich candidates.

Perhaps disclosure should be the law, thus allowing the voters to see where a candidate is getting his money. But without responsible voters–the ultimate enforcement in this case–that isn’t going to do much good.

I would say finally that the line between actually campaigning for office, political commentary, and political advocacy is a dangerous one. Personally, despite what the courts have ruled, I think we took a dangerous step when we first regulated speech even in elections. But when we step even further over that line, it becomes even more dangerous. Even though some of the nastiest material in an election comes from third parties, often folks we can’t be sure are unconnected to a candidate, I think that speech must be protected. Again, responsible reading and listening is the key.