What Should We Do Now That Campaign Finance Reform Has Failed?

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Campaign finance reforms have weakened political parties and spurred the growth of independent groups, marginalizing the 99-percent voter.

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What do campaign finance reformers hate most about our campaign finance system? They hate the enormous sums of money flowing into opaque, nominally independent expenditure groups. What's responsible for the explosion of opaque, nominally independent expenditure groups? Campaign finance reforms.

The ironies of unintended consequences are rarely so dramatic. By sharply limiting direct, individual contributions to candidates or parties, late 20th century campaign finance laws have encouraged, and, from a practical political perspective, necessitated creation of a now flourishing network of independent groups. Because of campaign finance reforms, these groups have greatly increased in wealth and influence, at the expense of a weakened party system.

People who disdain political parties may welcome their decline, but for all their faults, the parties provide opportunities for citizen activism that don't exist in the world of independent groups financed by the 1 or .01 percent. I can engage for free in grass roots party politics simply by walking around the corner and attending local ward meetings, where I can vote for delegates to the state convention or campaign to become one myself. If want to engage with an independent expenditure group, I have to write a check; if I want to influence the group, I have to write an impressive check (and elite, high donor groups are not easily impressed.)

I don't mean to romanticize activism or exaggerate the influence and access individual activists can exert relative to high dollar check writers. My point is simply that for the vast majority of people who can't (or don't want to) buy into the system, parties offer opportunities for meaningful engagement. So do member-supported advocacy groups and political movements -- Tea Parties or Occupations -- of course. I'm not suggesting that the parties are the best or most effective forms of activism, only that they're better than the relatively un-democratic, independent expenditure groups that reformers love to hate. Parties remain, to some extent, venues for participatory democracy.

Reformers, however, aren't generally concerned with rebuilding or replenishing political parties. Instead, in the wake of the Citizens United decision, their favored solution is a constitutional amendment banning corporate contributions and declaring that corporations are not people (which could deprive for-profit and non-profit enterprises of their Fourth as well as First Amendment rights.) I've sharply criticized this naïve, thoughtless constitutional amendment drive at some length. In brief, reformers seem oblivious to the dangers of initiating a re-write of the First Amendment, which they will not be able to control; they blind themselves to the fact that money enables speech, as it enables and is inextricably bound to the exercise of other rights; and (putting aside debates about the speech rights of business corporations) their proposed amendments tend to dismiss or elide the difficulties of eliminating corporate speech rights and retaining the rights of non-profit citizen advocacy groups and the for-profit (or aspirationally for-profit) press.

Besides, if your goal is starving independent expenditure groups of funds and lessening their influence, you'd have to amend the First Amendment even more drastically to curtail the rights of individuals who finance independent groups, which pre-date Citizens United. The Swift Boat attacks on John Kerry, for example, were financed by a 527 group, organized under section 527 of the tax code; it dates back to the mid 1970's. Reformers who tend to demonize 527's should consider that (according to opensecrets.org) top individual contributors to 527's for 2012 range from Foster Friess (dubbed by dailykos.com,"the billionaire who bought Iowa for Rick Santorum") to Nation editor and publisher, Katrina vandal Heuvel, a staunch advocate of reform.

Supporters of campaign finance restrictions include many wealthy individuals who contribute substantially to independent groups, out of an understandable reluctance to engage in unilateral disarmament; many might welcome a legally enforceable system of mutual restraints. But even if you support a drastic constitutional rewrite that would limit or eliminate the rights of individuals, as well as groups, to spend their money to air their views (which I don't) you might consider the quixotic nature of your quest. The Bill of Rights is not going to be revised to reflect progressive perspectives on the regulation of political speech.

But campaign finance laws law restricting contributions to candidates and parties could conceivably be amended in an effort to right the balance between parties and independent groups. Maybe the effort would come too late, given the growth of independent groups under the campaign finance regime; maybe merely leveling the playing field would take years.

The problems created by campaign finance laws will not be easily solved, and supporting the elimination of campaign finance restrictions on individuals, instead of clamoring for more, is, to say the least, a counter-intuitive strategy for reformers. But maintaining the restrictions has been counter-productive for democracy. Limits on direct, individual contributions to candidates were supposed to limit the influence of money in politics; instead they've increased it. After 35 years, perhaps it's time to acknowledge they've failed.

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Wendy Kaminer is an author, lawyer, and civil libertarian. She is the author of I'm Dysfunctional, You're Dysfunctional.

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