The Future of Campaign Finance Reform Laws in the Courts and in Congress

Abstract

The objective of campaign finance regulation has been incorrectly formulated. The main goal of campaign finance laws articulated by judges and legislators has been to eliminate a certain kind of corruption from the political system. This corruption is described as a subtle kind of bribery where large campaign contributions are used to motivate particular kinds of legislative behavior. The Court is struggling with an issue that has long beset judges and others attempting to distinguish corrupt activity on the part of government officials from politics as usual. At the extreme, corruption is easy to identify in return for some private gain, a public official performs an act she would otherwise not perform. The problem arises when the act is one that the official probably would have performed whether or not she received the benefit, and/or when the benefit is something allowed by the political system, such as campaign contributions to officials whose policies and ideology the contributor supports. Relying on the desire to eradicate institutional corruption as the guiding rationale for campaign finance reform efforts is problematic for reasons I discuss in the first part of this article. The primary problem lies in the difficulty of determining when a member of Congress is too compliant with the wishes of some of her constituents and when she is properly responsive to the people who elected her. Because the notion of institutional corruption that seems to propel most campaign finance reform and that structures the court's analysis is difficult to define precisely and may not be a concern usefully addressed through campaign finance reform without larger, and politically unlikely, changes in the distribution of wealth and other resources, we would do better to reformulate the objectives of campaign finance entirely. I propose that Congress shift its orientation and work to devise a system of campaign finance laws that empowers people to make decisions in their own interests. Congress would thus adopt as its guiding principle the objective of improving voter competence. A system dedicated to enhancing voter competence would enable citizens to get the information necessary to vote in accordance with their preferences and to hold politicians accountable for their decisions. I conclude by arguing that the objective of voter competence justifies a campaign finance system that regulates only through aggressive disclosure, but I also suggest that such a system faces constitutional and logistical challenges. It is such challenges that should command our attention, not the hopeless task of enacting increasingly Byzantine restrictions on soft money, issue ads, and other political activity.