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.

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.