Balkinization

Are Campaign-Finance Laws Inherently Incumbent Protecting? Are All Election Laws?

Rick Pildes

Over at the Volokh Conspiracy blog, Ilya Somin has an interesting response to my posts here on the Supreme Court’s decision last week holding unconstitutional the so-called “Millionaire’s Amendment” to the nation’s campaign-finance laws. I argued that despite the noble-sounding egalitarian justification for this provision, many close observers recognized this provision to be, in purpose and effect, designed to protect incumbents against serious competition. That included Sen. McCain, who supported the provision, and Sen. Dodd, who opposed it, along with many academic experts in the campaign-finance laws.

Somin agrees about this provision, but wants to generalize the point. He suggests that all campaign-finance laws are likely to be pro-incumbent. There are two different reasons this might be so. One is that it is inherent in campaign-finance regulation that it will necessarily favor incumbents; on this view, a laissez-faire, privately-financed system is inherently the kind of regime that will enable challengers to be most effective in competing against incumbents. The other possible reason is that, as a matter of realpolitick, the only kind of campaign-finance regime incumbents are likely to enact will be one that favors incumbents, that is, themselves. Somin seems to be making the second argument more than the first, which is an argument about the political economy of these laws. So that’s the argument I want to address.

The problem is both more complicated and even broader than Somin’s post suggests. More complicated, because it’s important to avoid the action/inaction fallacy here. It might well be that the failure to enact campaign-finance laws of one sort or another is incumbent protecting. As a matter of political economy, there’s no reason to assume that the baseline before any recent piece of legislation provided an optimal state of a competitive electoral structure. Indeed, far from it: because all sitting legislators were elected under that prior status quo, one might better start from the presumption that their self-interest favors leaving in place the rules under which they were elected (this is overly simplified, but sound enough to get the general point across). We have plenty of examples. The classic malapportionment problem that the Court finally addressed in the 1960s is the most obvious: in many states, legislators had designed election districts at the start of the 20th century and then refused to redraw those districts for the next 60 years, even as massive migration from rural to urban areas led election districts to have wildly disproportionate numbers of people in them in ways that grossly underepresented urban areas. But of course, the legislators elected under the existing regime had do interest in changing those districts and “updating” them to reflect these demographic changes – until outside intervention, in the form of the Supreme Court’s one-vote, one-person cases forced them to do so. Moreover, in areas in which there is considerable uncertainty about predicting the effects of any legislative change to election rules, incumbents are likely to be all the more resistant to change. Legislators are quite risk averse, not surprisingly, when it comes changing the rules involving their own seats. When it comes to major changes with as complex-to-predict effects as something like the McCain-Feingold law, for example, most legislators were certainly not chomping at the bit to enact these changes.

The problem is also even broader. As a matter of political economy, there is no reason to single out campaign-finance laws for this skepticism. Anytime existing legislators regulate (or fail to regulate) the election process, there is always the risk that they will do so not for public-regarding reasons, but for self-interested ones. In fact, this is one of the hidden costs of the rise of the secret ballot, believe it or not: once the ballot became secret, that meant the State took over the function of printing ballots. And that meant the State began to regulate the ballot, including what kinds of pre-conditions candidates had to meet to get on the ballot. That, in turn, raised the risk – and sometimes the reality – that incumbent legislators would regulate access to the ballot not for genuine public-regarding reasons, but in ways designed to insulate themselves as much as possible from challengers. Or take the current controversies over voter ID laws: are these laws enacted for genuine public-regarding purposes? Or are they self-interested devices by which those in power seek to entrench themselves and their partisan allies even more deeply in power?

Here’s what I think follows. First, it is indeed true that as long as sitting legislators have the power to shape the groundrules of democratic elections, there is always the risk that they will do so for self-interested reasons. This is a serious problem, not to be underestimated, which is why I posted initially on the Millionaire’s Amendment and why I appreciate Somin’s raising of this issue. Second, this risk is just as true from legislative inaction as action. Thus, it is much too simple to proclaim that, if a legislature enacted any particular law – such as a campaign-finance law – it must be the case that the law is incumbent protecting. Third, despite the risks, we are inevitably going to have to have election laws: elections are structured processes. That is why the title of this post is intentionally provocative. Finally, all this means that to decide which election laws are incumbent protecting and which are, instead, appropriate, we inevitably need substantive analysis that distinguishes one law from another. That substantive analysis is extremely difficult and interesting, both as a matter of policy and constitutional law. I can’t begin to provide any of it here. But in response to Somin, yes, suspicion is a good starting point, but it cannot be an endpoint. It is not sufficient to proclaim all campaign-finance laws – or the McCain-Feingold law in particular – or all election laws incumbent protecting merely because incumbents enacted them. If we are to be convinced that any particular noble-sounding election law is, in fact, a device to protect incumbents, we are going to need a more substantive story about the particular law at issue.

Posted 10:13 AM by Rick Pildes [link]

Comments:

Seems to me that Rick is assuming an either/or framework. This is to say, either political reform legislation is incumbent protection or it is not. I would argue that there are different degrees to which any proposal may or may not benefit incumbents. Even so, there is no contradiction in a law that both benefits incumbents and simultaneously promotes political equality or some other public-regarding value. Political reform laws can also create a framework of incentives such that even if an incumbent is re-elected, their behavior may also be more public-regarding as a result of the law. Incumbents and wealthy candidates will always enjoy natural electoral competitive advantages; however, this reality does not necessarily preclude these actors from passing laws that benefit society because of a change in the incentive structure. That is, behavior change is a superior criterion over incumbent advantage in any policy. If the desired change in behavior obtains, then we need not worry if the political actors are re-elected incumbents, wealthy individuals, or publicly financed citizens.

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