Thursday, June 26, 2008
When Do Campaign Finance Laws Become A Way to Protect Incumbents?
I'm unsure of why this has anything to do with incumbent entrenchment. Is there any reason to think that challengers are more likely to be self-financed than incumbents? A simpler explanation is the conservative wing of the court disfavors campaign finance reform generally and is attempting to chip away at the regulation.
"But it is also hard within conventional constitutional doctrine to find a way for the law to reach the risk that election rules are self-entrenchment mechanisms."
You wouldn't have to reach the question of self-entrenchment, (The mostly unacknowledged problem with all campaign regulations.) if we just took seriously that "no law", and the lack of any enumerated power for Congress to regulate campaigns, as opposed to actual voting procedures.
The origin of the Millionaire's amendment, on the floor rather than as part of the original McCain-Feingold bill, indicates its incumbent-protection purpose. Incumbents rarely need to self-finance, and challengers have greater difficulty raising money than do incumbents.
As the Davis Court noted, the increased limits for candidates faced with a self-financed challenger argue against the notion that the $2,300 limit on contributions generally or the overall limit on all federal contributions are needed (at those levels) to prevent corruption or the appearance of corruption.
The Millionaire's Amendment was always one of the weakest links in McCain-Feingold, and its demise should not be a surprise.
Professor Hasen's blog expresses the concern that supporters of campaign regulations should have - the implications for public financing regimes that attempt to "adjust" for independent expenditures.
Brett, the thing is, I don't really see how Buckley is wrong on campaign contributions. "No law" clearly means no regulation on advertising or similar expenditures (which are clearly speech), but contributions? When you contribute to the McCain or Obama campaign, there's no guarantee your money is going to be spent on speech at all. It may go to speech, it may go to get out the vote, it may go to powering the lights at campaign headquarters or gas for the plane, it may go to pay off the candidate's mistresses, etc. You just don't know and have no control over the issue.
So an expenditure constitutes money that is used for speech, which the expender directly controls the content of. A contribution constitutes money that may or may not be used for speech, which the contributor does not control the content of. Doesn't that make a big difference from a First Amednment standpoint?
Jeffrey said: I'm unsure of why this has anything to do with incumbent entrenchment. Is there any reason to think that challengers are more likely to be self-financed than incumbents?
Actually, this is very easy to see. Nearly three years ago I looked at the issue of campaign finances by those candidates who are likely to self-fund. Here is what the FEC data I found reported:
Incumbents by far reap among the $613.8 million dollars raised by House candidates in 2004, incumbents received $445.9 million or 72% of the money and that was not for 435 candidates, but 405 incumbents, an average of $1.1 million per incumbent.
Challengers to incumbents garner far less funds, just $91.7 million or just shy of 15% of funds. For the 650 challenger candidates running for the House 2004, that equates to an average of $141,000 per candidates or a little more than 10% of the average incumbent war chest.
Open seat candidates gathered the remaining 13% of funds, totaling $76.2 million. But spread over just 94 candidates, the average open seat House candidate raised $810,000--a competitive sum.
As a result of the vast inequties of funding distrubution, open seat and challengers tend to rely on their own sources of funding, in the form of candidate contributions and loans from the candidates themselves. For all House candidates in 2004, candidate contributions and loans totaled $25.7 million or just over 4% of all sources of funding. But in 2004, incumbents turned to themselves for just $1.38 million of the $25.7 million. Meaning that candidate contributions to incumbent races equated to just 0.3% of funds raised by incumbents.
Simply put, incumbents almost never turn to their own money (and many have lots of money) to fund their campaign.
If Congress was really interested in "leveling the playing field" which was their oft-repeated objective during the debates on BCRA, then they should treat political wealth, that is the massive warchests the incumbents generate while in office, the same as personal wealth and allow challengers to raise funds under increased contribution limits until parity is achieved. But since, post-Davis, asymmetrical limits are unconstitutional, the better bet would be to restrict fundraising by incumbents until such time as a challenger declares or some arbitrary date, such as Jan. 1 of election year or six months from the primary date or something similar.
Of course, such a proposal is not particularly likely to get passed in Congress.
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