A Good Argument Against Campaign Spending Limits

Professor Dan Lowenstein, writing over at Election Law @ Moritz makes a particularly good point about campaign spending limits. As the Tuesday arguemts in Randall v. Sorrell approach at the Supreme Court, here is an argument the court should heed:

Although I believe the Court underestimated the usefulness of spending limits as an anti-conflict of interest device, I still believe spending limits are very bad policy. One argument commonly given against spending limits is that they are anticompetitive and, in particular, that they favor incumbents. There is some merit in that argument, but I do not place as much weight on it as some do. For one thing, the empirical evidence that spending limits benefit incumbents exists but it is not as unequivocal as it once seemed to be. For another, there is a tendency to make a fetish out of competitive elections and the defeat of incumbents. Competitiveness in the electoral system is a value, but it has its limits and at best it is only one of many means toward a well-functioning democratic system.

If that argument against spending limits tends to be overblown, another argument does not receive nearly enough attention. A regime of effective spending limits makes bureaucratic and judicial decisions much too important in election campaigns. The world in which campaigns operate is complicated, diverse, and ever-changing. It therefore is inevitable that difficult questions will continually arise over what counts as an expenditure for purposes of limits. In the worst case, these decisions will be made by commissioners or judges who are less than impartial in the heat of a campaign. But the best case, in which the decision-makers make good faith judgments, is still a bad case. Campaigns and elections should be decided politically, not by arcane legal arguments. (emphasis added)

Read the whole thing.

Hat Tip: Professor Hasen