Interesting, but Unconstitutional Campaign Finance Proposal

Democratic operatives James Carville and Paul Begala have come up with a campaign finance reform proposal that seems a little familiar, called "Not One Dime" In their words, the plan:

We propose fundamentally and radically reforming the way that campaigns are financed. Our proposal combines the fondest dream of liberal reformers—public financing of campaigns—with the fondest dream of conservative and libertarian reformers—no restrictions at all on donations from American citizens. The goal is to put a little distance between power and money.

Here is what I would consider the radical idea:

And when it is campaign time, incumbents would be under a complete ban on raising money. You read that right. No president or member of Congress could accept a single red cent from individuals, corporations, or special interests. Period.

Challengers, on the other hand, would be allowed to raise money in any amount from any individual American citizen or political action committee. No limits, just as the free-market conservatives have always wanted. But here is the catch: Within 24 hours of receiving a contribution, the challenger would have to report it electronically to the Federal Election Commission, which would post it for the public to see. That way, if you want to accept a million dollars from, say, Paris Hilton, go for it. But be prepared for voters and reporters to ask what you promised her in exchange.

The day after you disclose Paris's million bucks, the U.S. Treasury would credit the incumbent's campaign account with a comparable sum—say 80 percent of the contribution to the challenger to take into account the cost of all the canapés and Chardonnay the challenger had to buy to raise his funds as well as the incumbent's advantage. So if Paris gave the challenger a mill, the Treasury would wire $800,000 to the incumbent. It couldn't be much simpler. You might even call it the flat tax of campaign laws.

The penalties for violation would be swift. If an incumbent accepts so much as a postage stamp, he loses his seat. If a challenger doesn't report contributions, he loses his shot. If you cheat, you are out on your ass.

So let's break down the problems.

First and foremost, good luck getting this past Congress. The current incumbent has much to gain from teh current system and my copy of the Constitution does not contain a provision for a nationwide voter referendum or initiative process. This is not to say that Congress, properly motivated, could not pass this bill, but the voters are going to have to be on their case with this action.

Second, we have some real constitutional issues here, such as equal protection. Under this scenario, the challenger and the incumbent are working with separate rules and that generally gives way to real legal problems. But assuming you can leap the equal protection hurdle, other, bigger obstacles are in the way. IN pareticular, this passage is appealing: "The penalties for violation would be swift. If an incumbent accepts so much as a postage stamp, he loses his seat. If a challenger doesn't report contributions, he loses his shot."

Like I said, it is very appealing in its simplicity and does appeal to the fair play side of us all. The problem--competely and utterly unconstitutional. There are mechanisms for removing incumbents from office and if violating this law comes with the punishment of expulsion from Congress--so be it. But, challengers are a different story altogether. While the campaign reporting is done on the federal level, the actual election occurs on teh state level, with state rules regarding who and who is not a candidate, Congress doesn't get to make that determination, only states.

While we are on the subject, these violation carry significant penalties handed down by government action. Thus the violators are to be accorded due process rights, meaning a hearing. Are we going to suspend activity on the floor of the House and Senate any time a complaint about violating this law occurs? Congress would never get anything done!! Are we going to force the states and candidates to undergo hearings each time they fail to report activity? On a good day, the FEC may take 1-2 months to review campaign finance filings. How will they know when a challenger has violated the law? By the time the FEC analysts get around to reviewing donation information, the election may have come and gone. Don't believe, look up some of the press releases and closed enforcment cases on the FEC website--it sometimes takes years to evaluate and enforce the law.

Carville and Begala present an interesting idea, but this idea is so fraught with legal problems as to be practically unworkable from the start. As a starting point, fine, but the idea these gentlemen propose will be eviscertated before even getting to House or Senate floor for a vote.

Time to head back to the drawing board.