Free Speech is Expensive How Campaign Finance Reforms Undermine Democracy

1
Free Speech is Expensive How Campaign Finance
Reforms Undermine Democracy

• Dr. Chapman Rackaway
• Assistant Professor of Political Science
• Fort Hays State University

2
The Constitution and Political Speech

• Amendment I
• Congress shall make no law respecting an
  establishment of religion, or prohibiting the
  free exercise thereof or abridging the freedom
  of speech, or of the press or the right of the
  people peaceably to assemble, and to petition the
  government for a redress of grievances.
• Intended to allow criticism of government
  policies and judgments
• How do we publicly share criticism in modern
  politics?

3
A Brief History of Campaign Money

• Parties funded campaigns from beginning of
  republic
• Progressive Reforms (1880s to 1920s) weakened
  parties
• Pendleton Act limited party fundraising
• Mark Hannas 5m for McKinley 1896
• Original RICO statutes
• FECA (1971, 1974) most significant
• BCRA (2002) aka McCain-Feingold

4
Political Speech vs. Constitution

• Bill of Rights meant to prevent government from
  quashing critical speech
• Elections predicated upon incumbent
  accountability
• Political speech is restricted more than any
  other form save commercial
• But is the essential element Framers wanted to
  protect

5
Assumptions of Reform

• Unfree Speech The Folly of Campaign Finance
  Reform by Bradley Smith (2001) Princeton
  University Press
• Promoting Political Equality
• Preventing Political Corruption
• Both goals have consistently failed to be met

6
The Current Finance Regime

• Federal campaigns
• 2,000 individual per election
• 5,000 per group
• 10,000 per party
• No soft money ads within 30 days of election
• 527s unlimited in raising or spending
• Numerous loopholes
• Bundling
• Coordinated campaign
• States vary (KS unchanged since 1974)

7
Court Decisions

• Buckley v. Valeo (1976)
• Upheld contribution limits
• Overturned expenditure limits
• Upheld independent expenditures
• Personal funds allowed
• All were acceptable free speech
• McConnell v. FEC (2003)
• Upheld a soft money ban
• Limited electioneering communications within 30
  days of an election

8
Problems in Campaign Finance Reform

• Limits on speech
• Weakened parties
• Compensatory fundraising
• Reporting complexity
• Limited competition

9
Severest limitation on political speech

• The Fallacy of Campaign Finance Reform
• John A. Samples, University of Chicago Press
• Campaign spending increases
• political knowledge and engagement
• Ability to place candidates on ideological scales
• Knowledge of incumbent voting records

10
Censoring Political Speech

• Suppresses grassroots activity in favor of
  televised campaigning
• Effect of 527 Organization Spending in 2004 by
  Smtih, Rackaway, and Anderson
• Money is speech
• Other standards would allow newspaper censorship
• Smiths Unfree Speech

11
Content Neutrality

• Supreme Court has upheld restrictions based on
  content neutrality
• apply to all categories of speech and do not
  expressly prohibit any particular subject matter
  of expression.
• Content neutrality not intended to stanch the
  free flow of information
• Court could then outlaw ALL election-day
  advertising
• Similar to soft money ban in BCRA

12
Increasingly weakened political parties

• Do Parties Make a Difference? The Role of Party
  Organizations in Congressional Elections
• Paul S. Herrnson The Journal of Politics Vol.
  48, No. 3 (Aug., 1986), pp. 589-615
• Severe limitations on party support to candidates

13
Water finding its level

• Breaking the Banks State Campaign Finance
  Regulation and its Effect on Campaign
  Contributions
• Donald M. Gooch, Chapman Rackaway (forthcoming)
• Restrictions on campaign finance does not limit
  overall campaign contributions
• Forces candidates to seek other sources

14
Excessive complexity in reporting

• Congressional Campaign Spending and the Quality
  of Democracy
• John J. Coleman Paul F. Manna The Journal of
  Politics, Vol. 62, No. 3 (Aug., 2000), pp.
  757-789
• Campaigns must hire professional assistance to
  comply with regulations, reducing focus from
  campaigning

15
Limited competition for office

• Money Talks Deterring Quality Challengers in
  Congressional Elections
• David Epstein Peter Zemsky The American
  Political Science Review, Vol. 89, No. 2. (Jun.,
  1995), pp. 295-308.
• Challengers cant raise enough money to compete
• Campaign Finance Reform and Electoral Competition
  
• John Lott Public Choice Vol 133, No. 1 (Apr.,
  2006) pp. 148-172.
• 4-23 increase in incumbent winning margins

16
Public Financing Flawed

• The Effects of Campaign Finance Laws on Turnout
  1950-2000
• David Primo, Jeffrey Milyo (forthcoming)
• Public financing schemes in the states have a
  significant (15) suppressive effect on voter
  turnout

17
More Demand More Money

• "A Simple Explanation for Why Campaign
  Expenditures are Increasing The Government is
  Getting Bigger."
• John Lott
• http//papers.ssrn.com/sol3/papers.cfm?abstract_id
  245336
• As the government has more favors to grant, the
  resources spent in trying to obtain those favors
  should increase.

18
The Punchline

• Law of Unintended Consequences
• Campaign Finance Reform proposals never meet
  their stated goals
• Severe restrictions on speech
• No reduction in corruption
• Feeds culture of appearance of corruption

Campaign Finance Reform Its Bad, Mmmmkay?