A messiah flush with cash

Barack Obama’s renunciation of public financing for his general election campaign against John McCain makes perfect sense. Drawing on a vast array of voluntary contributors, Obama stands to raise several hundred million dollars and outspend John McCain by a margin of three or four or five to one. In doing so he is exploiting advantages he holds over McCain in organization and enthusiasm. He would be a fool to forgo it. Except for the unnecessarily dishonest explanation that accompanied his announcement, there is nothing wrong with abandoning his pledge (noted in the AP article on Obama’s announcement) to seek an agreement with McCain regarding public financing of the general election.

If McCain could match Obama’s fundraising, he surely would choose to do so. He is no more a fool than Obama is. That he cannot match Obama’s campaign in organization, fundraising or enthusiasm is no credit to McCain. Moreover, Obama’s abandonment of his pledge to seek an agreement with McCain does no wrong to McCain or his supporters. McCain cannot have relied on it to his detriment, and voters (myself included) don’t care about it.

Apart from mandatory disclosure of campaign contributions, the whole edifice of campaign regulation from which Obama is escaping is a monument to revolting hypocrisy and bureaucratic tyranny. In order to see how, we must revisit history.

The campaign finance scandals of Bill Clinton’s 1996 reelection left a bitter aftertaste. Having secured his reelection, Clinton resorted to the favorite stratagem of presidents in need of political cover — the appointment of a bipartisan commission. The bipartisan commission was to study the reform of campaign finance law.

To conservatives, the appointment of a bipartisan commission was a non sequitur. The 1996 scandals were scandals because they involved violations of existing law. Nevertheless, talking about the need for campaign-finance reform helped President Clinton to change the subject. On March 17, 1997, Clinton announced the appointment of former Vice President Walter Mondale to co-chair (with Nancy Kassebaum-Baker) an independent commission to promote campaign finance reform.

Mondale’s experience analyzing campaign-finance law extended back to his student days at the University of Minnesota Law School, where he wrote an astute law review note criticizing Minnesota’s campaign-finance law and advocating deregulation. See my “Fritz ’56: Thoughts of the young Mondale on campaign finance reform.”

As a Minnesota senator, however, Mondale had supported the complex system of federal campaign-finance law that essentially derived from the Federal Election Campaign Act law of 1971 and the Watergate-era amendments of 1974. In the White House ceremony announcing the appointment of the new Clinton commission, Mondale referred to the “nightmare of the present campaign-finance system.” No one noted that the “reforms” Mondale himself had supported as a senator had become the “nightmare” he described in 1997.

The problems identified by Clinton’s bipartisan commission ultimately contributed to the adoption of the Bipartisan Campaign Reform Act of 2002 (the McCain-Feingold law). In passing the law Congress emphasized the increased importance of unregulated “soft money,” the proliferation of “issue ads” by nonparty groups, and the findings of a 1998 Senate report on the 1996 election as the impetus for adopting McCain-Feingold.

Every reform implies an ideal state or condition to which the reformer aspires. The ideal embedded in the First Amendment is that of unrestrained speech keyed to the constitutional system of self-government. Those of us who oppose all campaign regulation other than mandatory disclosure rest our opposition on the First Amendment ideal.

What is the ideal state suggested by the logic of campaign-finance reform? Perhaps the most revealing passage in the hundreds of pages generated by the Supreme Court justices in their opinions on McCain-Feingold comes in Justice Scalia’s dissent. Scalia notes the usual good-government rhetoric regarding “the prevention of corruption or the appearance of corruption” in which campaign-finance reform always comes wrapped. He also takes a look under the wrapping:

[L]et us not be deceived. While the Government’s briefs and arguments before this Court focused on the horrible “appearance of corruption,” the most passionate floor statements during the debates on this legislation pertained to so-called attack ads, which the Constitution surely protects, but which Members of Congress analogized to “crack cocaine,” 144 Cong. Rec. S868 (Feb. 24, 1998) (remarks of Sen. Daschle), “drive-by shooting[s],” id., at S879 (remarks of Sen. Durbin), and “air pollution,” 143 Cong. Rec. 20505 (1997) (remarks of Sen. Dorgan). There is good reason to believe that the ending of negative campaign ads was the principal attraction of the legislation. A Senate sponsor said, “I hope that we will not allow our attention to be distracted from the real issues at hand-how to raise the tenor of the debate in our elections and give people real choices. No one benefits from negative ads. They don’t aid our Nation’s political dialog.” Id., at 20521–20522 (remarks of Sen. McCain). He assured the body that “[y]ou cut off the soft money, you are going to see a lot less of that [attack ads]. Prohibit unions and corporations, and you will see a lot less of that. If you demand full disclosure for those who pay for those ads, you are going to see a lot less of that . . . .” 147 Cong. Rec. S3116 (Mar. 29, 2001) (remarks of Sen. McCain). See also, e.g., 148 Cong. Rec. S2117 (Mar. 20, 2002) (remarks of Sen. Cantwell) (“This bill is about slowing the ad war. . . . It is about slowing political advertising and making sure the flow of negative ads by outside interest groups does not continue to permeate the airwaves”); 143 Cong. Rec. 20746 (1997) (remarks of Sen. Boxer) (“These so-called issues ads are not regulated at all and mention candidates by name. They directly attack candidates without any accountability. It is brutal . . . . We have an opportunity in the McCain-Feingold bill to stop that . . .”); 145 Cong. Rec. S12606–S12607 (Oct. 14, 1999) (remarks of Sen. Wellstone) (“I think these issue advocacy ads are a nightmare. I think all of us should hate them . . . . [By passing the legislation], [w]e could get some of this poison politics off television”).

Here Scalia hits the mother lode: He discovers that, in one sense, incumbent officeholders tend to have a profound disdain for politics. The ideal of incumbent officeholders promoting campaign-finance reform is freedom from criticism, especially at election time. Indeed, these incumbent officeholders seem to view elections as an inconvenience to their exercise of power.

But what about the enablers of these incumbent officeholders among the good-government types always searching for the “loopholes” that must be closed to keep the natives from making their restlessness apparent? Their ideal is embodied in the Federal Election Commission, the regulatory body implementing law that now rivals the Internal Revenue Code in its complexity. For them, bureaucratic administration is far preferable to the rough and tumble of democratic political life.

Unfortunately, Obama’s abandonment of public financing represents nothing like a conversion in principle. Buried in the middle of Rick Kaplan’s excellent article on Obama’s announcement yesterday is evidence that Obama is already thinking about the transition to the incumbent protection racket. Kaplan reports: “Bob Bauer, the Obama campaign’s general counsel, told reporters in Washington Thursday that Obama would push to update the system in time for the 2012 elections.” Now that’s a scandal. (This post draws on my column “Dream palace of the goo-goos.”)

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