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 ampaign-spending
limitations are like the amusement-arcade game of whack-a-mole.
The faster you hammer one
mole into the ground, the sooner another pops up from a different
hole. Thus, limits on contributions to individual candidates simply
divert "soft money" into contributions to political parties. Other
reforms also spawn unintended consequences; the much-derided Political
Action Committees (PACs) were created by the 1974 federal-election
reform law, with the intention of reducing political corruption.
To the extent that campaign-finance laws are effective, they harm
the political process even more. Establishment candidates with hefty
rolodexes can amass huge treasure chests by raising $1,000 each
from scores of other insiders. In contrast, mavericks need deeper
support from their narrower base.
Without the very generous support of a few very wealthy individuals,
Eugene McCarthy never would have been able to mount his 1968 challenge
to President Lyndon Johnson. In the March 12, 1968, New Hampshire
primary, McCarthy took 42% of the vote, while President Johnson
could not muster majority support from within his own party, winning
just 49.6%. The next primary was scheduled for April 2 in Wisconsin.
Two days before the Wisconsin primary, President Johnson announced
that he would not seek reelection. History was changed because McCarthy
could raise scads from millionaires in order to take on the establishment's
candidate.
Political speech is the core of the twin liberties of freedom of
speech and freedom of the press. But campaign-finance laws directly
limit political speech, either by preventing an individual from
choosing how much of his own money to give to support political
speech he likes, or by limiting the total amount a candidate may
spend to get his message out.
As the whack-a-mole game proceeds, the speech controllers have to
restrict more and more political activity in order to tighten up
the "loopholes." Thus, current "reform" proposals in Congress would
actually make it illegal for groups like the Sierra Club or the
National Rifle Association to inform their members about how elected
officials voted on issues of concern to their respective memberships.
There is a better, simpler path to election reform. Article
XI, section 2, of the Colorado Constitution states: "Neither
the state nor any county, city, town, township, or school district
shall make any donation or grant to, or in aid of ... any person,
company, or corporation, public or private in or out of the state."
Colorado's 1876 Constitutional Convention, reacting to the common
practice of railroad companies extracting huge subsidies from municipalities,
totally outlawed corporate welfare, in five separate provisions
of the state constitution. Many other states have similar bans on
corporate welfare.
Besides upholding the fundamental principle that private interests
should not receive public subsidies, the Colorado provision also
protects the political process from corruption. If wealthy private
interests aren't allowed to enrich themselves from the public till,
then the private interests have much less motivation to give campaign
contributions to the legislators who man the till.
This nineteenth-century intuition was confirmed by Yale Law School's
John Lott. Comparing state-spending levels and political spending
rates in all fifty states, Lott found a direct correlation. The
greater a state government's per-capita spending rate, the more
money that was spent on state legislative elections. The title of
his paper says it all: "A
Simple Explanation for Why Campaign Expenditures are Increasing:
The Government is Getting Bigger."
Lott explains: "The bottom line is, even when you control for all
the other possible effects, between 60 and 80 percent of the growth
across time in campaign expenditures can be linked with increased
government spending." He notes: "The irony is that many of the same
people complaining about campaign spending also tend to want larger
government."
For the first half-century of Colorado statehood, Colorado courts
generally enforced the constitutional ban on welfare for private
interests. But during the Depression, the Colorado Supreme Court
invented a "public-purpose" exception to Article XI. Corporate welfare
is now okay, so long as there is some alleged "public purpose."
Since 1930, the Colorado Supreme Court has never found a single
instance of corporate welfare without some supposed "public purpose"
Thus, the court upheld a 1991 legislative plan to grant millions
of dollars to United Airlines.
In addition to the Article XI ban on corporate welfare, the Colorado
Constitution also outlaws the legislative creation of special privileges
for corporations or individuals (Art.
V, sect. 25); and forbids giving taxpayer money to private persons
or organizations (Art.
V, sect. 34).
These provisions too have been emasculated by specious decisions
from the lawless Colorado Supreme Court. In Colorado, as across
the nation, grants of public funds to private interests are now
routine. Appalachian School of Law professor Dale
F. Rubin has detailed how these state constitutional anti-corruption
measures have been judicially nullified in Colorado,
Oregon,
Utah,
Florida, and Washington State.
Many advocates of restrictions on spending for political speech,
such as Ralph Nader and his Green Party, are faced with an insoluble
dilemma: They like to point out how big government bestows unfair
advantages on big corporations, yet the proposed solution will make
government ever more powerful.
Willie
Sutton explained that he robbed banks "because that's where
the money is." As long as government remains in the welfare business,
especially the corporate-welfare business, people will "invest"
in campaigns in order to receive taxpayer-funded boodle after the
election. The election becomes, as one wit cleverly observed, an
auction in advance for stolen goods.
The solution isn't to cripple the First Amendment. The most important
campaign reform is to replace the boodle-tolerant state court judges
who refuse to enforce the anti-corruption provisions of their respective
constitutions. At the federal level, imagine that all the energy
currently being wasted on McCain-Feingold were instead devoted to
welfare reform for corporations. Since 1996, single mothers have
faced time limits and other restrictions on their receipt of welfare
money; why shouldn't corporate-welfare recipients face equally tough
restrictions?
If public funds were no longer a source of private revenue, then
the "special-interest spending" problem would go away on its own.
No one's freedom of speech would have to be limited. And perhaps
if Congress spent less time doling out corporate welfare, it might
do a better job of performing its truly constitutional duties.
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