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In Campaign Law, ‘Less’ Is Not Always More

In his June 7 commentary, election lawyer Marc Elias complains that campaign finance laws have become entirely too complex for political operatives to grasp. The solution to this state of affairs, he insists, is not “passing more laws and revising more rules,” singling out for special scorn attempts to rein in soft-money abuses by 527 groups. The real answer, he says, is to “take a step back.”

The prime example we are given is the recent trial in Los Angeles of Sen. Hillary Rodham Clinton’s (D-N.Y.) 2000 campaign fundraiser, David Rosen. Elias says the judge found incomprehensible the FEC’s letter to the court describing the effect of a soft-money in-kind contribution to a Hollywood fundraising event.

Of course, that example is moot now, since the Bipartisan Campaign Reform Act of 2002 did away with the soft-money allocation system that gave rise to the complexity in the Rosen trial. One of the arguments in favor of that reform was that the soft-money system was not only corrupt, but complicated, because it allowed the political parties to play shell games with hard-money accounts, soft-money accounts, joint-fundraising committees and allocation systems. The good news is all that is now history.

Elias’ broader message is that campaign laws are still complicated, and legal complexity is bad, and simplicity is better. That suggestion is hardly novel, and it is sometimes even true. But it is also an utterly false dichotomy that intentionally obscures the real questions: What public values do campaign finance laws serve? And what do opponents of those laws mean when they suggest “simplicity?”

That question recurs in all areas of the law, of course. Corporate leaders rightly find anti-trust law complicated, but the laws are necessary to promote competition. Arcane principles of patent law may be puzzling to the biologist, but they reward innovation. And campaign laws serve key values, too: preventing corruption and protecting the integrity of the democratic process.

The truth is that campaign finance isn’t more complicated than most other areas of the law, and is a good deal less complex than many. And like most areas of the law, when the regulated community expresses its desires in the sheep’s clothing of “simplicity,” what they really want is the wolf — complete freedom from laws that restrict their activities, even if those rules serve the public interest.

It’s not difficult to understand why some political operatives dislike laws that limit campaign contributions. It is undoubtedly easier to collect a few enormous contributions from corporations, unions and wealthy individuals than it is to gather thousands of smaller donations from individual citizens. The reason Congress has nevertheless repeatedly passed laws to limit contributions and their sources is that the absence of such rules has consequences that are so damaging to our political system that they are well worth whatever inconvenience and lawyers’ fees they may generate as a consequence.

The Supreme Court described the consequences of unfettered political giving in stark terms when it upheld the BCRA just two years ago. Unlimited contributions, the court said, buy undue access and influence for their givers, a form of corruption totally at odds with a system of democratic governance. In particular, unlimited soft-money contributions demonstrably skewed the Congressional agenda in the 1990s, influencing Congressional inaction in tort reform, health care reform, tobacco legislation and other areas. Under those circumstances, it’s no surprise that so many Americans simply choose not to participate in a system they perceive as fundamentally rigged.

Today’s irony is that the reform efforts Elias decries are only necessary because political operatives, and the attorneys they employ, have sought and found ways to evade the law Elias claims they cannot possibly understand. Through their efforts in the last election cycle, 527 groups were able to raise and spend more than $400 million in soft money. And they are hard at work trying to open the Internet to soft-money expenditures by state parties.

But the best example of the reform opponents’ real project may be pending legislation from Reps. Mike Pence (R-Ind.) and Albert Wynn (D-Md.) to eliminate the aggregate limits on contributions from individuals to political party committees and candidates. Under their scheme, a single individual could give more than $1 million to a political party, and $2 million to federal candidates, in a single election. Apparently Deep Throat isn’t the only ghost of Watergate to walk the Earth this year: Congress passed the current limits ($61,400 to parties; $40,000 to candidates) in 1974 to address the extraordinary fundraising scandals of that troubled time, when so many Americans lost faith in the integrity of our politics.

Some aspects of campaign finance law could certainly stand to be simpler. But when the plea for “simplicity” comes from reform opponents, what they really want is “less.” Less is not always more.

Trevor Potter, a former FEC commissioner and chairman, is president of the Campaign Legal Center and a partner in the political law practice at Caplin and Drysdale.

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