Tweaking the Legalized Bribery System Pleases Few

Also published at BuzzFlash at and at Bartcop Reader at

May 16, 2002

Last week conservatives and liberals separately filed suit to claim that various parts of the recently passed Shays-Meehan/McCain-Feingold bribery reform legislation should be thrown out as unconstitutional. Last night (May 15) in a debate at the National Press Club over the proposition “The Government is Still for Sale,” all four participants, two arguing the affirmative and two the negative, agreed that McCain-Feingold makes things worse, including by making it even harder for challengers to take on incumbents. This is one reform that seems to have pleased very few people.

Of the few people who praise McCain-Feingold, most (notably excluding the “President”) suggest that its chief merit lies not in what it actually does but in having demonstrated that reform is possible. But how could reform be impossible? And if this isn’t good reform, if it is a half-step or a sideways or backwards step, then how does it contribute to our knowledge that serious reform is possible?

Here’s what the new law does. It bans soft-money bribes (more commonly called “donations”) at the national level. Soft money is a quarter to a third of national campaign money. A wide range of observers believe that much of this money will now be paid in state and local bribes or used as hard money at the national level. Hard money is paid to individual candidates, as opposed to committees.

But McCain-Feingold doesn’t just leave hard money alone. It doubles the amount that can be paid, and in some cases multiplies it by six. So the type of bribes that constitute at least two thirds of what candidates receive, and the type they are free to do whatever they want with, has been greatly expanded by a bill labeled “campaign finance reform.” Already fewer than 1 percent of Americans pay the $1,000 they are allowed to. Raising the limit to $2,000 or $6,000 will further shrink the tiny fraction of the population that is able to run for office or encourage and influence candidates.

So, last week the National Voting Rights Institute, the National Association of State Public Interest Research Groups (PIRGs), and the Association of Community Organizations for Reform Now (ACORN), together with some low-income individuals, filed a challenge on the grounds that raising the hard money limits will deny many Americans equal opportunity to participate in the political process. (Full disclosure: I work for ACORN.)

At the same time, the Republican National Committee filed suit challenging the ban on soft money, claiming this was a restriction on free speech. The California Democratic and Republican parties (or should we just say PARTY and get it over with?) together filed a similar free-speech challenge. Other groups, including the National Rifle Association, the AFL-CIO, the U.S. Chamber of Commerce, and the National Association of Broadcasters challenged McCain-Feingold’s restrictions on political ads during election periods.

Neither side in this debate is happy, and neither will be content if it gets what it has now asked for from the Supreme Court. The ventriloquists who claim dollars can talk won’t be happy until there are no limits on bribery. Those who want to bring the other 99 percent of Americans into the system and create something like a democracy won’t be happy until we have publicly funded campaigns and either a complete ban on bribery or enough limitations to make opting for public funds an appealing option to candidates.

The debate at the National Press Club, sponsored by the American Prospect, offered some insights into how each side thinks. Arguing that the government is for sale (in other words, that “donations” are bribes) were John Moyers and Ellen Miller. Arguing that politicians’ behavior is unaffected by all the money, except in so far as they have to spend half their time begging for it, were John Samples and Michael Lynch.

Samples opened the debate by rejecting specific empirical evidence and stressing the importance of general theories and academic journals. After all, if Enron bought access to Cheney, an academic can still claim such things don’t happen according to his or her “model.”

Building rapidly on this fine start, Samples, who works at the CATO Institute, said that “contributions” aren’t bribes because the benefits people get in return are worth more than the amount of the bribes. If I pay $100,000 and receive $500,000 in corporate welfare, then according to Samples, I haven’t bribed anyone. This is the sort of situation in which empirical evidence would seem very useful. For example, it’s worth noting that those who did not pay the $100,000 didn’t get squat. In fact, many of them had a bigger share of the tax burden laid on their shoulders and saw their public education system and other services neglected and attacked.

In a doozy of an opening statement, Samples went on to claim that the media had supported banning soft money because they didn’t like competition. The media, as we all know, simply detest selling advertisements.

Lynch, believe it or not, was the anti-government whacko of the evening. He writes for Reason magazine and never met a regulation that didn’t offend him. It’s unfair, he told us, for a public-financing system to tax “the 95 percent of people who choose not to give to politicians” and use their money to promote candidates they don’t support. Does Lynch suppose that these 95 percent of Americans all have thousands of dollars lying around and have simply chosen to be left out of the bribing/political process because they’re happy with how the other 5 percent are running things?

As the debate progressed, Samples claimed that rich or single-patron candidates are acceptable and good because they have gotten votes in the past (for example, McCarthy and Perot). But if unfairly funded candidates couldn’t get votes, who would object to them or propose campaign finance reform in the first place?

When asked directly if money is speech and if the rich are speaking more loudly than others, Samples and Lynch ignored the second part of the question and to the first replied that money is not speech but is very closely tied to it. Samples gave an analogy about limiting what the New York Times could pay its reporters and how this would limit free speech. Pretty persuasive. The next time we’re electing our national reporter, I’ll be sure to make sure the New York Times’ candidate isn’t unfairly advantaged.

Sarcasm aside, Samples did make a fair point, which Moyers agreed with, when he said that other factors can outweigh money. It would take a huge amount of money to get Congress to legalize marijuana, because much of the country is religiously set against it.

But Samples gave the whole game away when he said that Enron’s bribes were OK because the deregulation they were after was a good thing. Of course it was a disastrous policy, but that’s not the point. The point is that Enron got a lot of what it was after, and did so with bribes. Samples did not dispute this by claiming Enron was just making no-strings-attached “donations” with no eye to the outcome. Instead, he claimed that what Enron was after was good.

Miller, who works for the American Prospect, and Moyers who works for, for their part made the easy case that money has shaped Congress. Racially and in terms of gender Congress does not look like America, Moyers said. But it does look a lot like its bribers. We are separating into two countries, Miller said, divided not by ideology but by access to power.

Moyers pointed out that the current system is anti-competitive in that it keeps many people out and makes fundraising more important than merit while encouraging cynicism. The polls all show, Moyers said, that 70 to 80 percent of Americans believe the system is corrupt. Even if they were wrong, the fact that they have this perception would be reason enough to change things, Moyers noted.

Miller and Moyers said they favor a system, as in Maine or Arizona, in which billionaires are free to fund themselves, corporate servants are free to accept bribes, but those who choose to run with public funding can do so. To some reformers this will sound like a halfway step, and I think it is. I would like to see only public funding used. But this seems like a step that can move us in that direction. It can do so because it will allow contrasts to be made between candidates who can listen to the people and candidates who are obliged to listen to all that talking money. After enough election cycles, non-publicly funded candidates will find they have a very hard time winning, and therefore a very hard time soliciting bribes.

This solution also has the potential to create candidates who appeal to nonvoters and focus their campaigns on increasing voter turnout rather than discouraging turnout of the opposition’s supporters. In other words, negative advertising could decline as the money behind the advertising becomes clean. All in all, it sounds like a state of affairs worth fighting for.