Thank you for sharing!

Your article was successfully shared with the contacts you provided.
The start of the 107th Congress brings with it the return of the debate over campaign finance reform. Sen. John McCain, R-Ariz., has declared that there will be “blood all over the floor of the Senate” if opponents of the McCain-Feingold bill attempt to prevent its consideration. The election fiasco produced a consensus for electoral reform that lends impetus to Sen. McCain’s crusade, and Mississippi Republican Sen. Thad Cochran’s recent support means that Sen. McCain can prevent a filibuster and ensure that his bill reaches both houses of Congress. This means the return of an all too familiar debate. Will banning soft money prevent corruption or unconstitutionally restrict political speech? Will limiting the amounts spent in campaigns curtail special-interest influence or magnify the advantages of incumbency? Will requiring disclosure of funding sources provide a needed disinfectant or allow the return of McCarthyite political tactics? Without taking sides on these questions, may I suggest that they are really beside the point. The relevant question is not whether eliminating soft money, or reducing total spending, or disclosing funding sources, are good things, but rather whether legislative mandates are necessary to achieve them. Interestingly, the evidence from the 2000 campaign suggests that they are not. SIGNALING THE PUBLIC Since 1996, the proponents of campaign finance reform have been doing their utmost to raise public awareness of, and indignation over, the way campaigns are financed. Although they have been doing this to generate support for their proposed legislation, the result has been to turn the way campaigns are financed into a campaign issue itself. Candidates now compete for votes by promising to eschew soft money and challenging their opponents to do the same. In the New York Senate race, Rick Lazio sought political advantage by challenging Hillary Clinton to sign an agreement banning the use of soft money. Ms. Clinton signed to avoid losing votes. In the Washington Senate race, Maria Cantwell attributed her narrow victory to the additional support generated by her pledge not to accept political action committee (PAC) contributions. This suggests that as soon as a significant percentage of the voting public believes that soft money is corrupting, a ban on soft money becomes self-enforcing. Ironically, the better the job reform advocates do of convincing the public that a mandatory ban on soft money is necessary, the less necessary it becomes. The same applies to disclosure. If a significant percentage of the voters really care about where candidates get their money, candidates will compete for their votes by unilaterally disclosing the source of their funds and challenging their opponents to do the same. Those who refuse to disclose risk losing votes by looking like they have something to hide. In addition, the more the public cares about the source of candidates’ campaign funds, the more journalists can grab headlines by ferreting this information out. TELLING THE TRUTH Within a day of the airing of a “secretly funded” ad attacking John McCain’s environmental record, journalists revealed that it was paid for by Sam and Charles Wyly, two wealthy supporters of Bush. In a June 5, 2000, article called “The Secret Money Chase,” Newsweek attacked “stealth PACs” that raised money from secret sources by identifying 11 of the major contributors to them. This suggests that the more successful reform proponents are at generating public support for mandatory disclosure, the less the disclosure needs to be mandatory. Of course, reform proponents can still argue for mandatory legislation by claiming that the public does not care about campaign finance enough for media exposure and competition for votes to police the situation. And if at least a significant minority of the electorate are not willing to alter their votes because of how candidates fund their campaigns, soft money and secret contributions will indeed continue to abound. But the argument that legislation should be passed precisely because almost none of the electorate cares about it enough to alter their votes is surely a strange one to make in a democracy. Indeed, it sounds enough like the old Vietnam-era claim that the troops “burned the village in order to save it” to make one wonder whose interests the proposed mandates would really serve: the public’s or the politicians’. John Hasnas is an associate professor at George Mason University School of Law.

This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.

To view this content, please continue to their sites.

Not a Lexis Advance® Subscriber?
Subscribe Now

Not a Bloomberg Law Subscriber?
Subscribe Now

Why am I seeing this?

LexisNexis® and Bloomberg Law are third party online distributors of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® and Bloomberg Law customers are able to access and use ALM's content, including content from the National Law Journal, The American Lawyer, Legaltech News, The New York Law Journal, and Corporate Counsel, as well as other sources of legal information.

For questions call 1-877-256-2472 or contact us at [email protected]

Reprints & Licensing
Mentioned in a Law.com story?

License our industry-leading legal content to extend your thought leadership and build your brand.


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2021 ALM Media Properties, LLC. All Rights Reserved.