LOS ANGELES – If you’re confused about the current state of the law on campaign finance after this week’s Supreme Court decision, you’re not alone.
In striking down Vermont’s effort at strict regulation of contributions and expenditures, the Court spoke in what my old boss, Justice John Paul Stevens, described as a “cacophony of voices,” which is a nice way of saying there was a lot of noise and no consensus.
I’ve been teaching election law for going on 20 years, and while I can probably summarize the rules, I can’t do much more than that — except to tell you that the trucks are on their way down the road to drive holes through the system that will allow money to keep flowing in.
The first major point to keep in mind is that Buckley v. Valeo, the 30-year-old decision upholding (some) contribution limits and striking down (most) expenditure limits is alive and well.
In Buckley, the only rationale the Court was willing to accept for limiting the speech that political money buys was corruption; in the wake of Watergate, with cash changing hands in numbers that today sound smaller than they did then (say $250,000), the Court held that Congress, and state legislatures, could impose limits on how much an individual could contribute to a campaign committee, but not how much an individual could spend of his own money (since you couldn’t corrupt yourself) or how much a campaign committee could spend.
In doing so, the Court rejected arguments for a level playing field; it ignored concerns that so long as there was an arms race going on for more and more money, donors and candidates would find ways, as they have, to get the money into the campaigns.
The only time expenditures could be limited was if there was public financing, as there is in the presidential race; there, if candidates agree to accept public money, the condition is that they limit their own spending. But independent committees are allowed to spend their own money without regard to such limits, since you can’t be corrupted — in theory — by an independent expenditure.
Ever since the Buckley system was first established, it has been attacked by all sides. At the risk of oversimplification, there are basically two polar opposite positions in this debate. The disclosure crowd takes the position that no matter how much you regulate, money will come in. Any regulatory system becomes Swiss cheese in the hands of clever lawyers and determined operatives, particularly with an agency as toothless as the Federal Election Commission, administering sanctions that are simply irrelevant in the play of a campaign.
Either you win, in which case it doesn’t matter that you violated the law here and there, or you lose, in which case you’re on the beach.
So long as you are arguably operating in good faith, it’s just about money. So people stretch the law beyond recognition, firm in the knowledge that by the time anyone reviews what they’ve done, no one will care. Thus, the argument goes, the only effective way to deal with the system is through full and immediate disclosure of all contributions and expenditures, leaving it to the press and the public to police the system.
People bundle checks together and disclose them, certain in the knowledge that at most, a few eggheads will pay attention to a one-day story about who gave what to whom. Not only does it require a high level of sophistication to tie contributions to causes, but it necessitates a public which is willing to devote attention which has thus far been lacking from what is largely viewed as a boring process debate rather than as an important piece of the answer to the question of why the health care system or the prescription drug system, just taking two examples, are broken.
Disclosure is one of those ivory-tower arguments whose effectiveness depends on a level of sophistication which is nowhere in evidence except among the elite press, which does not mean that no one cares.
At the other extreme from the disclosure crowd you have the regulators. The regulators would impose limits everywhere: on contributions, expenditures, personal spending, independent spending, in an effort to put government beyond the reach of the highest bidder.
I’ve spent much of my intellectual life defending such limits. Why, after all, should the rich have so much more influence than the rest of us? Why should politicians spend half their time, and more, raising money?
I have seen, first hand, the corrupting influence of money in politics. There is simply no denying it. Disclosing it doesn’t stop it.
The problem with trying to regulate it away is two-fold.
First, it doesn’t work. No matter what you do, people like me find a way around it. If independent money is allowed, we have independent groups. If rich people can spend their own money, we find rich candidates.
Second, the Supreme Court has made it all but impossible to regulate effectively in any event.
Vermont tried to impose strict limits on contributions and expenditures and the “conservative” court, the court that defers to states rights and supposedly only rarely interprets the Constitution to strike down state legislation, struck down the legislation.
The result is the best government money can buy. It is as simple as that. If we want a better system, we will have to pay for it.
There will always be private money in politics, but until we have public financing of elections, the biggest beneficiary of the current, complicated system will not be the candidates, and certainly not the public, but the lawyers who are needed to navigate the maze.
It keeps getting more complicated, as the “cacophony” gets louder.
Estrich's books include "Real Rape," "Getting Away with Murder: How Politics is Destroying the Criminal Justice System," "Dealing with Dangerous Offenders," "Making the Case for Yourself: A Diet Book for Smart Women" and "Sex & Power," currently a Los Angeles Times bestseller.
She served as campaign manager for Michael Dukakis' presidential bid, becoming the first woman to head a U.S. presidential campaign. Estrich appears regularly on the FOX News Channel.
Susan Estrich is currently the Robert Kingsley Professor of Law and Political Science at the University of Southern California and a member of the Board of Contributors of USA Today. She writes the "Portia" column for American Lawyer Media and is a contributing editor of The Los Angeles Times. She was appointed by the president to serve on the National Holocaust Council and by the mayor of the City of Los Angeles to serve on that city's Ethics Commission.
A woman of firsts, she was the first woman president of the Harvard Law Review and the first woman to head a national presidential campaign (Dukakis). Estrich is committed to paving the way for women to assume positions of leadership.
Books by Estrich include "Real Rape," "Getting Away with Murder: How Politics is Destroying the Criminal Justice System" and "Dealing with Dangerous Offenders." Her book "Making the Case for Yourself: A Diet Book for Smart Women," is a departure from her other works, encouraging women to take care of themselves by engaging the mind to fight for a healthy body. Her latest book, The Los Angeles Times bestseller, "Sex & Power," takes an impassioned look at the division of power between men and women in the American workforce, proving that the idea of gender equality is still just an idea.