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:
George Tenet Fangirl:
So how do you explain legislators who vote for term limits?
6.28.2008 2:39am
Ilya Somin:
So how do you explain legislators who vote for term limits?

The vast majority are against them, which is why nearly all existing term limits laws were enacted by popular referendum.
6.28.2008 2:50am
I share the general sense that we should be skeptical of legislators' motives, but I cannot share the implicit conclusion that you are inviting readers to draw, which is that new campaign finance laws should be struck down. As I see it, we have three choices: (1) no regulation at all -- such that bribery is fair game; (2) regulation written by former incumbants (while they were incumbants); and (3) regulation written by current incumbants. To take your analogy, it would be a choice between security devised by the wolves and no security at all. Between those two choices I am skeptical that the no-regulation-at-all solution is necessarily better.
6.28.2008 5:28am
Brett Bellmore:
I think the implicit conclusion is that campaign laws deserve no presumption of good faith on the part of the legislators. Obviously it's possible for self interested parties to occasionally come up with reasonable rules.

It just isn't reasonable to assume they will.

Given a choice between security devised by the wolves, and none at all, go with none at all every time.
6.28.2008 8:03am
trad and anon:
The millionaires amendment was the most transparent bit of incumbent protection in the entire bill. Only challengers self-finance. But your argument is no substitute for empirical research. What happened to incumbent reelection rates after the post-Watergate reforms? McCain-Feingold? We could get more data from other countries too.
6.28.2008 11:21am
Ilya Somin wrote June 28, 2008 at 12:44am:
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.
Which certainly explains why Tom Campbell's Can't Vote, Can't Contribute Campaign Reform Act of 1999 went nowhere.
6.28.2008 12:44pm
mrshl (www):
So given the referendum-based success of Term Limitation laws, it should be possible to craft neutral campaign finance rules that don't benefit incumbents. Obviously difficult, but theoretically possible.

Put another way, if The People wanted campaign finance reform The People would have to write it themselves, right?
6.28.2008 1:05pm
teqjack (mail):
Oh for... I have been hearing for over fifty years how I should know enough about the issues to vote for the candidate who most closely reflects my own views, and/or how if an elected official does not come close enough to my views I should "punish" (presumably by voting for someone else next time) that rep.

Fine idea. So, just how am I supposed to practice it? I am not alone in living in an area where all the officials on offer, from mayor up, are interchangeable with no differences other than party affiliation: admittedly, a large part of it is because offering an alternative even on something like on which days to collect trash is seen as a surely losing idea. So, it`s pin-a-tail-on-the-(picture of your choice here) again.

And no, I am not about to offer up my life to running for office myself. At most, prehaps for a position in a party's most local committee, and probably not that. Am I a slacker? You betcha, if the alternative is spending at least ten hours a week because of some "office" I hold communicating with people of hopefully similar outlooks - I do that via blogs, responses to news organizations, etc.
6.28.2008 6:14pm
Originalism Is Useful (mail):
If you're against CFR, then how can you vote for John McCain?
6.28.2008 11:17pm
Brian G (mail) (www):
My first day of a Political Sciene class at Arizona State, the professor write this on the board:

"The rules reflect the interests of those who made them."

The headline to this post says:

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

Simply, I am not surprised the campaign finance reform is turning out to be just that. Plus, anytime you hear the word reform, you should know right then something stinks, i.e tax reform = raising taxes
6.29.2008 12:18am
"The vast majority are against them, which is why nearly all existing term limits laws were enacted by popular referendum."

6.29.2008 4:09am
Interestingly, Barack Obama might not be in the Senate without the Millionaire's Amendment . . . .
6.30.2008 11:54pm
Urban Rider:
One point that I'm sure Prof. Somin has addressed in the past is that the ignorance of the American electorate about complex issues like campaign finance reform is due at least in part to the horrible job the mainstream media do of meaningfully covering such issues. American-style news coverage, riddled as it is with dry facts and "objectivity", is terrific at reprinting the police blotter but is terrible at looking behind stories and providing context and perspective. Add to that the MSM's incurable credulity, especially with respect to anything that sounds like "reform," and the likelihood of nuanced, skeptical coverage about campaign finance reform becomes vanishingly small. So how is the average voter, even the increasingly rare specimen who reads his local newspaper every day, supposed to comb through a piece of legislation like McCain-Feingold for Trojan horses, or even get beyond the MSM's superficial narrative of campaign finance reform being a battle between good government Democrats and intransigent big-money-bankrolled Republicans?
7.1.2008 11:27am