BCRA Botch Job

Hat tip: Prof. Hasen

I have long advocated, in this space, that the Congress has the duty to be explicit in its desires when legislating. If they are not specific, they cannot gripe about Agencies interpreting the law in a different fashion or about the unintended consequences. This piece by Professor Michael Munger points out what happens when Congress tries to regulate speech and fails to be specific enough in its desires.

BCRA has been a failure even for supporters of spending restrictions, like Rep. Meeks and dozens of other members of Congress. BCRA has achieved three things, all bad:

1. It actually enhances the power of narrowly focused, highly organized and well-funded special interests.
2. It reduces the accountability of those interests by encouraging those groups to disguise their identities.
3. It raises a nearly impenetrable financial force field of protection around incumbents.

It is the last of these that I have spoken about before and suggested some fixes for the problem. But I would like to talk about a different aspect, one with relevance today, considering the efforts to regulate lobbying a little more. As Munger writes:

But BCRA makes it even harder for challengers to make headway against incumbents. Rather than merely regulating the source of contributions, BCRA goes much further, asserting in effect that there is too much unregulated speech. According to the BCRA, the most important time for speech to be regulated, and incredibly even outlawed entirely, is in the period 60 days before an election. Columnist George Will ("Litigating Freedom of Speech," Dec. 2, 2002, Washington Post) quotes a number of politicians who found the heat of a competitive campaign unpleasant. But rather than fight (or get out of the kitchen), incumbents preferred the BCRA solution of simply getting rid of annoying negative ads financed by soft money:

• Sen. Wellstone, D-Minn.: "These issue advocacy ads are a nightmare."'
• Sen. Cantwell, D-Wash.: BCRA "is about slowing political advertising and making sure the flow of negative ads by outside interest groups does not continue to permeate the airwaves."
• Sen. Jeffords, I-Vt.: Issue ads "are obviously pointed at positions that are taken by you saying how horrible they are."
• Sen. Daschle, D-S.D.: "Negative advertising is the crack cocaine of politics."
• Sen. McCain, R-Ariz.: Negative ads "do little to further beneficial debate and a healthy political dialogue" and BCRA will "raise the tenor" of elections.

Will points out that "BCRA is government's—the political class'—assertion of a right to fine tune the 'tenor' of political speech, to make it 'healthy' and 'beneficial' by suppressing speech by 'outside interest groups.' "

What exactly is a "beneficial" debate? Any incumbent can give a simple answer: one the incumbent can win, or at least can dominate with superior spending power. Consider Ford, or IBM, or U.S. Steel. They would all love to have government make it harder for competitors to enter markets and challenge them to raise the quality of their products. In fact, firms make these kinds of requests all the time. Why should we be surprised that political incumbents have the same desires to be sheltered from competition?

I had not been able to formulate my argument as cleanly before. But the efforts of McCain and Company, are clearly focused on the power to stay in office by limiting speech. Campaign finance laws overwhelmingly favor incuments. Now lobbying laws will overwhelmingly favor those already in power--to do as they like with little fear of outside interference or questioning.

Is this mind control--no? Is it thought control--probably, since we cannot speak our minds as efficiently as we once did. Is it power control--absolutely, and that is the first step to the other two.