Why Campaign Finance Laws are Likely to be Incumbent-Protection Laws:

Election law scholar Rick Pildes has two excellent posts explaining why the "Millionaires Amendment," which the Supreme Court struck down on Thursday was probably enacted by Congress for the purpose of protecting incumbent legislators against challengers (see here and here). As Pildes explains, laws restricting the ability of independently wealthy candidates to spend their own money on their campaigns benefits incumbents because they usually have much better access to other sources of funding than challengers do. Thus, even independently wealthy incumbents rarely need to spend their own money on reelection campaigns. By contrast, thanks to the existence of laws restricting the amounts which people can contribute to the campaigns of others, independently wealthy challengers spending their own money are "[e]very incumbent's nightmare" because they can spend a lot more than challengers who must rely on difficult-to-raise outside contributions. Pildes compiles some impressive evidence (including statements by John McCain) indicating that Congress inserted the Millionaires Amendment into the McCain-Feingold Act for the specific purpose of reducing the risk of their own defeat.

I. Legislators' Incentives to Enact Incumbent-Protection Laws.

However, Pildes seems to believe that the Millionaires Amendment is at least somewhat exceptional, and that many if not most other campaign finance laws might promote political competition rather than undermining it. I find that conclusion implausible. After all, campaign finance laws can only be enacted if they have the support of incumbent legislators. And incumbents have very strong incentives to support "reforms" that entrench them against potential challengers and oppose any reforms that might make the challengers' task easier. Even if - in the abstract - it is possible to design a system of campaign finance regulation that creates a better electoral process than that which would exist in the absence of regulation, it is highly unlikely that real-world legislators would vote for such a system. Instead, they are likely to support reforms that entrench incumbents and oppose any that might have the opposite effect.

Allowing incumbent legislators to write campaign finance laws is somewhat like appointing a committee of wolves to develop new security arrangements for chicken coops. Even if the current security system is flawed, the wolves will probably make it worse rather than better. After all, the wolves' main interest is ensuring their own ability to gobble up the chickens, a goal that would be frustrated by the installation of better security measures.

II. How Political Ignorance Exacerbates the Problem.

Pildes might argue that this danger can be defused by attentive voters. If voters pay close attention to the details of campaign finance laws and punish those legislators who vote for incumbent-entrenching proposals, Congress might have an incentive to promote "good" reform laws and abjure policies like the Millionaires' Amendment. Unfortunately, we know that most citizens have little or no knowledge of politics and public policy and that it is actually rational for them to remain ignorant. It is highly unlikely that any but a tiny fraction of Americans have the kind of detailed knowledge of campaign finance law necessary to be able to tell the difference between potentially beneficial reforms and incumbent-protection scams. Thus, it should be easy for incumbents to dress up laws that handicap challengers as public-spirited efforts to "take money out of politics." The "Millionaires' Amendment" itself is probably an example of this. After all, it looks superficially like an attempt to diminish the political influence of the wealthy for the benefit of the poor and middle class, and was sold that way to the public.

If voters were knowledgeable enough to tell the difference between "good" campaign finance laws and Trojan horses that benefit incumbents, there would probably be no need to worry about campaign finance in the first place. After all, a knowledgeable and attentive electorate could easily learn about the candidates and their policies from sources other than the candidates' 30 second sound bites and ads. For example, they could read newspaper reports, academic studies on the merits of opposing policy proposals, magazine articles, and so on. Campaign finance only matters because most voters are ignorant, and don't pay much attention to politics - thereby turning campaign ads into important sources of information because they are among the few such sources that many voters will actually see. But that very ignorance makes it highly unlikely that voters will know enough to punish politicians who enact incumbent-protecting campaign finance reforms.

Related Posts (on one page):

  1. Rick Pildes on The Danger of Incumbent-Protecting Campaign Finance Laws:
  2. Why Campaign Finance Laws are Likely to be Incumbent-Protection Laws: