The Last Best Chance for Campaign Reform

There are reasons why the campaign finance reform failure rate is so high. These reasons--politics, predictability, and the Constitution--are not going to disappear in the face of new reform efforts. Perhaps a particularly ingenious reform will be able to navigate the campaign reform minefield, but, if history is any indication, the smart money is on the torpedoes.At the same time, abandoning the reform project would merely leave in place the legal structures that already affect campaign finance concerns. There can be no neutral, non-regulatory baseline because elections require legal rules in which to operate. Campaign regulation may be risky, but it is also inevitable.The difficulty of the project has not deterred the reformers. Perhaps because the obstacles to reform have been underappreciated, the response to the regulatory challenge posed by campaign finance reform has generally been “full speed ahead.” Virtually every call to reform, from new restrictions, to subsidies, to deregulation, has called for action at the federal level.It seems to me that there is a fair case to be made that when the barriers to success are so high, and the risks of miscalculation so great, the regulatory forum of first resort should be the states and not the federal government. This article will make that case.In Part I, I discuss why campaign finance reform has proved elusive. Specifically, I develop and explain the serious obstacles to campaign regulation that stand in the way of successful reform. These factors are: (1) legislative entrenchment, the inevitable conflict of interest that occurs when legislators enact measures that affect their own elections; (2) unintended consequences, the fact that the consequences of reform measures are unpredictable; and (3) the First Amendment, the reality that campaign finance is core First Amendment activity. Any of these factors, standing alone, would make campaign reform challenging. Taken together, they cast doubt as to whether successful reform can ever be achieved.Part II argues that campaign reform efforts should not be abandoned despite these obstacles. This part, like the campaign reform issues it tracks, proceeds on somewhat of a roller coaster. Subpart A presents the argument that campaign reform regulation is inevitable. Because the rules and structures that govern elections necessarily impact campaign finance matters, the only real question is whether the regulation should be direct or indirect. Subpart B makes the normative case for reform. The section starts with a discussion of why and how the political system is dependent on money--a topic that, probably because of its intuitive force, is surprisingly underdeveloped in the literature. The section then proceeds to explain how the political system's dependence on money leads to a number of ailments. Part II ends by raising a caution flag. The normative case for reform may be substantial, but it does not lead in any clear direction.Part III builds on the previous sections to offer a process as opposed to a substantive solution. It proposes that the financial regulation of federal campaigns be entrusted to the states. Decentralization of reform efforts, I contend, will lessen the severity of the risks of federal regulation and will provide opportunities for different ideas and approaches to campaign reform to percolate and emerge. I also argue that decentralization will offer a positive regulatory byproduct. The process of decentralization will help accomplish substantive campaign reform goals. Part IV addresses some of the problems and objections that may arise in response to the decentralization proposal.