Over at Balkinization, leading election law scholar Rick Pildes has posted a response to my argument that campaign finance laws are likely to be incumbent-protection laws. I agree with most of his analysis, much of which is extremely insightful. But it seems to me that it doesn’t really rebut my original point.
To briefly recap, I argued that campaign finance laws are likely to protect incumbents against challengers because they must get the support of incumbent politicians to be enacted. And incumbents are highly likely to enact reforms that strengthen them relative to challengers, while rejecting any proposals that might have the opposite effect. I further argued that widespread voter ignorance exacerbates the problem by making it difficult or impossible for voters to tell the difference between a “good” reform law and an incumbent-protection scheme.
In his response, Pildes doesn’t directly dispute these points, but makes three potentially relevant claims:
First, it is indeed true that as long as sitting legislators have the power to shape the groundrules of democratic elections, there is always the risk that they will do so for self-interested reasons. This is a serious problem, not to be underestimated…. Second, this risk is just as true from legislative inaction as action. Thus, it is much too simple to proclaim that, if a legislature enacted any particular law – such as a campaign-finance law – it must be the case that the law is incumbent protecting. Third, despite the risks, we are inevitably going to have to have election laws: elections are structured processes. That is why the title of this post is intentionally provocative. Finally, all this means that to decide which election laws are incumbent protecting and which are, instead, appropriate, we inevitably need substantive analysis that distinguishes one law from another.
Obviously, I agree with Pildes’ first point, which is similar to the one I made myself. His second point is also valid; legislators might choose not to enact a campaign finance proposal if passing it would help challengers. Indeed, that is what I would expect them to do. It is unlikely that legislators who want to hold on to their seats would knowingly enact any reforms that would undermine that objective. Both of these points merely strengthen my claim that any campaign finance laws that do pass the legislature are likely to be incumbent-protecting. At the very least, they are highly unlikely to make things any easier for challengers. Note that this holds true even though, as Pildes notes, “there’s no reason to assume that the baseline before any recent piece of legislation provided an optimal state of a competitive electoral structure.” Even if the preexisting baseline was suboptimal, the only new campaign finance regulations likely to actually pass are ones that reduce competitiveness below the baseline level rather than increase it.
Pildes’ third point – that “we are inevitably going to have to have election laws” -is the only problematic one. It may be true in the case of electoral districting laws, laws regulating ballot access, and other laws regulating election procedures (many of which Pildes mentions in his post). But it is not inevitable that we have to have campaign finance laws. Indeed, we didn’t have any federal laws regulating private campaign spending for the first century or more of American history, and very few until the 1970s. Unlike in the case of districting and voting procedures, we could potentially leave campaign finance entirely to the private sector – as we for the most part did during much of American history.
I don’t claim that private sector campaign finance is anywhere close to optimal. Nor do I conclude that concerns about incumbent protection are by themselves sufficient to justify a complete ban on government regulation of campaign finance. I do, however, suggest that the likelihood that any campaign finance laws that actually pass the legislature will be incumbent-protection schemes justifies a strong presumption against them. In other areas of election law, we may have to live with a system that puts the wolves in charge of regulating access to the chicken coop because some form of government involvement can’t be avoided. With campaign finance, we don’t. In this area, we should put the wolves on a very short leash, possibly even keep them away from the chickens completely.