Chuck makes a great case for changing with way we think about campaign finance reform by dredging up the Supreme Court case of Schenk v. U.S. , 294 U.S. 47 (1919). Here is his analysis:
This standard permits a prior restraint against free speech, such as political contributions, when they exhibit a "clear and present danger" to bring about "substantive evils that Congress has a right to prevent". Bribery and improper influence clearly meet this standard. As Justice Holmes observed crucially, however,
"It is always a case of proximity and degree."
Thus, when the proximity of the private donor to the public candidate is high and the degree of the donation is large, corrupting influence is likely to ensue: political favors will be bought and sold. When either the proximity or the degree is reduced so that improper influence is eliminated, political donations become a benign form of free speech.
Campaign finance reformers have focused their efforts upon reducing the degree of political contributions by limiting their size. Rather than restricting improper political influence by limiting the degree of the donation, Congress must reduce the proximity of the donor to the recipient instead. By doing so the size of political contributions may be increased significantly without incurring the de facto bribery of corrupting influence. (emphasis in original)
Granting Justice Holmes' premise that corruption is a function of degree and proximity, Chuck makes a strong argument for removing the issue of proximity from the problem. However, despite an insightful start dealing with issue of freedom of political speech, Chuck forgets that political matters also involved a freedom of association. When later positing suggestions for Congressional action, Chuck comes up with these proposals:
1) A maximum amount of $100,000 per election cycle, either given or received, must be established regardless of the public or private nature of either the recipient or the donor.
2) Candidates for federal office and advocacy organizations must be prohibited from soliciting or accepting contributions of any kind directly or indirectly with a value in excess of $100 from any individual or organization within any thirty-day period.
3) Offering, accepting, soliciting or disclosing political contributions in excess of $100 per month must constitute the felony of bribery, pursuant to Title 18 of the United States Code.
4) Individuals and organizations that wish to contribute between $101 and $100,000 to any candidate for federal office or any political advocacy organization must do so through an independent third party, the Federal Election Commission (FEC), which shall guarantee their anonymity.
5) Donors must be permitted to direct the FEC to disburse their contributions to the specific individuals or organizations of their choice, and the FEC must deposit these donations into a general advocacy account that distributes these assets weekly.
6) The FEC must create and maintain a comprehensive database of donors and recipients, thereby ensuring that the $100,000 maximum limit for political contributions is not exceeded.
7) As the legal advocate for the electorate at large, the FEC must be prevented from releasing any information about the identity of a donor or a recipient or the amount donated for at least twenty years after the death of the individual or dissolution of the organizational recipients or donors. Notwithstanding a specific warrant from a court of appropriate jurisdiction, violating the public's right of attorney/client privilege must constitute a felony commensurate with the disclosure of information that has been classified as secret for national security purposes. (emphasis in original)
The problem with proposal 1 is that while a limit on contributions given by an individual or organization have been upheld under Buckley and McConnell, limits on receipts by candidates have not. Candidates and their supporters have a constitutional right to associate as they see fit. Similar arguments can be made against proposition 2.
Political freedom is not only the freedom of speech but also the freedom to associate with like-minded individuals. The entire premise behind candidate campaign finance committees is the expression of support for a like-minded individual (the candidate) being expressed through the medium of money. While it may be argued that there is too much money in the system, I think the real problem is the distribution of money within the system that is a bigger problem.
Proposal 3 exhibits a lack of understanding of how political contributions actually work. Like most people, Chuck seems to believe that political contributions influence votes made by that politician. In fact, the opposite is true. The votes made by a politician influence the funds they receive. There is a good reason why incumbents raise more money than challenger canddiates, they have a record of votes by which interest groups and individuals can assess their stances. If an incumbent exhibits a streak of labor friendliness, they are likely to receive contributions from labor organziations and not much from business organizations.
Thus if funds are based on past political behavior, bribery cannot occur since bribery by its very nature if forward looking. Additionally, there is little way in which a political contributor with only $100 to give has any hope of actually holding a politician accountable for the outcome being sought by the contributor. Finally, on a technical note, the disclosure of a "bribe" is not bribery but more akin to extortion or blackmail.
Finally, proposals 4 through 7 contemplate a massively expanded role for the FEC in campaigns. For a person who exalts individual freedom (see Chuck's website) this proposal seems decidedly counterintuitive. To start, the FEC regulates the campaign activity of Congress, a body with a decided interest in keeping the FEC as weak as possible--thus the composition of the Commission with a partisan tie (3 Dems and 3 Reps). Similarly, the powers of the FEC are generally limited in that they have only the power to enforce the law in a civil context, criminal charges are brought by the Justice Department.
On another note, one could argue that the FEC has difficulty performing the mission currently assigned to it. Expanding their role would complicate matters and require a much bigger staff they they currently have. I don't think expanding the federal bureaucracy in this arena is such a good idea.
Finally, I don't want the federal government responsible for distributing money I give to candidates. There is simply too much room for error in this regard. On a related matter, if a candidate must rely on teh FEC to get their money, what happens if there are problems?
While Chuck makes a good case for changing how we think about campaign finance regulation, his proposal fails to address real constitutional hurdles to political freedom.
Note: Check out the comments to Chuck's post--some good ideas being thrown around, if they are based solely on Chuck's flawed plan.
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