Posted by Adam @ 2:05 pm on April 28th 2008

How many angels can dance on the spirit of campaign finance reform?

There’s been recent talk over the NYT piece about John McCain’s (legal) cheap chartering of private jets from a company owned by his wife, including, no surprise, some concerns that the Grey Lady is not practicing even-handed reporting. The “this is against the spirit of the McCain-Feingold campaign finance reform” accusations come after similar accusations relating to the cunning RNC-McCain campaign mixing and the earlier matching funds/loan issue (on the latter, McCain might have an actual case to answer, except we likely shan’t know because the Senate hasn’t appointed enough FEC commissioners so the case shan’t be heard).

So, the implicit (or explicit) statement is that John McCain is to be not just bound by the fact of the law but also its spirit, because he was a key reason the law came to pass at all (enough to get his name on it, something about which he hasn’t complained). Presumably everyone that voted for it should be similarly bound (a problem Obama escapes, as he wasn’t in the Senate at the time it was passed) as well as, to a lesser extent, politicians that expressed support for it I don’t know whether Obama supported it or not, although I’d be interested to hear if he did say anything about it near the time).

The problem I have, though, is that that position doesn’t make a great deal of sense when you consider what the law purports to do. It’s supposedly about levelling the playing field by imposing legal restrictions; the idea that the bill’s supporters should not get to explore the allegedly leveller playing field this law is supposed to have created seems pretty silly to me. After all, the point is that the law would purportedly enforce a better campaign system, not that there’d be a system where opponents of the bill were restricted by the law and supporters were restricted by the law plus the utopian ideal imperfectly driving the actual law through Senate and House votes and committees, Presidential signing and Supreme Court interpretation in light of the Constitution. Whilst such a general position might have the redeeming effect of making lawmakers too scared to ever try to make any law, given that the process by which an idea becomes US Federal law has about the same effect on the idea as a household mangle would upon testicles, it’s a standard which we would have to apply more widely than we apparently wish to.

The real problem McCain has, which Brad alluded to (second-last paragraph), is that these laws may be doomed to fail in their spirit and that the law with which McCain is so associated just hasn’t worked. That’s actually a pretty serious and damaging allegation if we are worried about competence in our leaders (which evidence suggests that we aren’t, but which logic suggests we ought to be). Once he passed the law, dog or not, he’s bound to obey it, but the idea that he should be bound to not explore ways to lessen its impact on his own campaign seems odd; the real spirit of campaign finance reform is to level the circumstances of different candidates and given that the law is the biggest constraint on what can be done in campaign fund-raising and money-spending, that has to apply equally to everyone, even if they helped write the law (that cuts both ways; they should be no more bound than others, but they should also not get exemptions, of course). Finding ways to maximise money raised inside the law is always going to be an essential part of campaigning so long as money is an important part of campaigning and there are laws (which there will always be; you’ll never be allowed to perform armed robberies to get campaign cash, for example*).

There is a legitimate political reality that this can do harm, of course, and it comes in part because the reason McCain would have to give to rebut the accusations is, indeed, to admit that the McCain-Feingold Campaign Finance Reform bill has not achieved the lofty aims promised by the rhetoric of its supporters, including most prominently John McCain himself. Indeed, such a discussion likely ends up as a consideration of precisely how big a failure the bill has been, which is not a conversation in which any candidate wishes to find themselves (although most candidates, presumably, appreciate the index-linking of the amount individuals can donate to individual candidates, that was in the Campaign Finance Reform bill in question).

Another issue and the most important ‘spirit of the law’, at which pretty much all limits on donations are predicated, is whether McCain has been ‘bought’ by donors. Concerns over that would be highest on the creation of entities merging RNC and McCain campaign interests and to which more than $2300 can be donated per individual; I am not yet entirely sure how different that is from the pre-existing situation as multiple organisations already exist that will be pulling towards a common goal, including in a co-ordinated fashion (unlike the PACs, who are supposed to be forbidden from coordination with campaigns).

Finally, and an issue that is mentioned by the NYT but not stressed, the big deal on the plan is whether McCain has gone back on his word not to use the wealth to which he has access through his wife for his campaign. As use of personal wealth is entirely allowed, it’s not a big deal legally or even in terms of the spirit of the law, but it is relevant in light of his previous promise that he wouldn’t use that money, much as is Obama’s apparent decision to go back on his word to take matching funds if the Republican did. Ironically, McCain would probably have escaped all of this if he’d not made that promise and, with his wife’s support, had self-financed a lot more than he has.

So, sure, make the (excellent) point about the law being bad and failing to achieve its aims or even construct the argument that there’s no point trying to legislate this at all, but the idea that McCain should not be able to explore what can be legally done regarding the money because he was instrumental in passing the legal restrictions is odd. Additionally, the idea that he should not be able to explore the possibilities because he has decried the role of private money in the political process is also pretty weak; after all, any complaints about the political process that need resolution through the political process almost inevitably require participation in the existing political process and money, needless to say, continues to be important in that American political process. So it’s not as if there’s no damage to be done to McCain over this issue (there’s a fair amount) but the ‘spirit of the law’ stuff seems to be the weakest element of it, to me.

*Libertarian readers should feel free to make a comparison comment about federal taxation here.

8 Comments »

  1. My objection is indeed in part that McCain, given his own positioning himself on the vanguard, deserves to take extra heat. If you want to look at it another way, he certainly EARNED political points by passing the act and talking up campaign finance, much more so than your average Senator who just voted for it. It seems that if he then decides to “explore” all those loopholes and whatnot he spent about three years howling about others exploiting in the old laws, he deserves any heat he gets. To put it another way, there’s a reason why Eliot Spitzer got hit particularly hard by the hooker thing. It’s the “holier than thou” attitude and bulldog pushing through of laws. And, it should be added, there was plenty of grousing about campaign finance at the time, and McCain’s responsive tactic was, quite often, to accuse opponents of being pro-money-in-politics, or being bought by monied interests, etc. It’s thus fairly galling to see McCain now doing what he used to accuse others of being paid for when they did.

    The other thing is:

    “After all, the point is that the law would purportedly enforce a better campaign system, not that thereíd be a system where opponents of the bill were restricted by the law and supporters were restricted by the law plus the utopian ideal imperfectly driving the actual law through Senate and House votes and committees, Presidential signing and Supreme Court interpretation in light of the Constitution.”

    Well, the law was to create said level playing field. The problem is, the two examples you gave are McCain trying to create a playing field that is decidedly unlevel, in his favor. I don’t fault him for using his family’s money, but others will say “So, campaign finance laws and McCain-Feingold specifically are very restrictive on how much you can raise, how much you can spend, and what money raised can be used for. You know, to keep money out of politics. But this doesn’t apply when the candidate is independently wealthy. Including John McCain.” That’s not really a level playing field, that’s a playing field that handicaps Joe Schmoe Candidate but leaves I Married a Brewing Heiress untouched. (the latter of course touches on other political stuff; I don’t think the stuff about McCain being independently wealthy through his wife and having financed his political career through her family’s fortune is widely known, and for some reason people care about that stuff).

    As far as the RNC/McCain hybrid, that strikes me as an example of the worst of all worlds, because it basically folds the problems of an unlevel playing field into the problems of a political two-party system. So, it’s a great workaround, but one that is only available to candidates that the two parties decide it is available to. So, in practice, the most established political interests will now get in bed with the most frontrunning candidate and create a relationship to soak the most biggest donors and donations. This is not a system that favors a challenger, and part of the philosophical justifications that McCain and other CFRers use is that, my leveling the playing field, you can draw out regular Americans to get engaged with the process, to get better candidates who might not have otherwise run because of how hard it is to be competitive with the establishment financially. That’s not going to happen if suddenly the Party Man they’re against merges with the friggin’ party they’re both running for the nomination of.

    Like I said, I’m not asking that McCain be the one guy on earth disallowed from finding campaign finance loopholes and exploiting them. But given that so much of the geography of campaign finance is literally McCain’s idea, and given that he is as responsible as anyone for the creation of the atmosphere that the “spirit of the law” attacks bite him on, and finally given that all of this is the case now that McCain, conveniently, is the nominee, I’m not going to shed much of a tear for him getting heat about it.

    And, oh yeah, he was wrong and his law was stupid and campaign finance doesn’t work and is instead unleveling the playing towards establishment candidates and monied interests, the direct opposite of how it was intended and sold.

    Comment by Brad — 4/28/2008 @ 5:07 pm

  2. There’s no way it could ever really have restricted how much money of their own people could put in, I don’t think. And what’s the idea, that they would buy themself? Doesn’t make much sense; it will certainly mean that being rich is a big advantage, if one wishes to run for office.

    As I say, I’m not sure to what extent the RNC-McCain hybrid is completely different to what’s happened before in effect.

    As I said, this does have political teeth; I think that it’s mostly logically otherwise, is all (but then, many of the most effective political attacks are).

    Comment by Adam — 4/28/2008 @ 7:54 pm

  3. Thereís no way it could ever really have restricted how much money of their own people could put in, I donít think. And whatís the idea, that they would buy themself? Doesnít make much sense; it will certainly mean that being rich is a big advantage, if one wishes to run for office.

    Well, people who are independently wealthy, under the current system, have a huge advantage over regular Joe Public Servant. The political clout of say, John McCain himself, is far far less than of John McCain Married to Beer Heiress. As to “what, would they buy themself?”, the answer is: sure. I think people who have their own monied interests finding themselves in situations of conflict of interest is a pretty common thing, given how much of the political class is made up of the wealthy. One could easily argue that two of the biggest negative influences in the Bush/Cheney administrations are both of their non-political financial interests (Bush with Big Oil, Cheney with Haliburten et al). That can be overstated, of course, but I think it would be pretty naive to argue that that doesn’t have a huge effect in terms of policy and their political inclinations. So, the wealthy have a huge advantage in running for office, and, it just so happens, politic interests overwhelmingly tend to serve the interests of politicians financial base. Whether we ought to do something about it is another question entirely. I don’t think so, but again, we ARE doing something about it, and that something tends to FURTHER make it more difficult for people NOT independently wealthy and NOT backed by their party establishment to compete. McCain has the best of all worlds. He can self-finance, and he can fold into the RNC, allowing him to both use his own money, and to take donations that other, non-party committee candidates, could not. It just so happens, in that sense, that he’s exploiting the irregularities of campaign finance to make the playing field less level as it pertains to him (not so much against Obama, but compare that situation to, say, Ron Paul’s, who has MORE of a financial base, but can’t access it, versus McCain who has less, but can, because of his position, exploit more loopholes). It’s less of an issue in Obama v. McCain, but as a standard for campaign finance, it’s a pretty shitty one. As I say, now that McCain’s blazed the path, expect ever incumbent or party-favored candidate to go his route, which creates a massively unlevel playing field against potential non-independently wealthy challengers. A situation which goes at a right angle to most of McCain’s political rhetoric over the course of his entire career.

    I don’t think it’s illogical, either, in terms of political teeth, in that the issue is McCain’s white whale. It’s not like something that’s been foisted upon him. If anybody has been guilty of making political hay out of money in politics, it’s McCain, so I have a hard time viewing him as much of a victim here. He’s decried consistently the way that the wealthy and the establishment class create skewed playing fields in politics. As a challenger, this has served him well. Now that he’s in the driver’s seat, his actions, I’d say, speak louder than words. Hard to blame him, of course: he has to play to win. And it’s easy to cynically say “well, politicians don’t mean anything they say, so I don’t rate this at all”. But it’s still worth noting that he’s essentially thrown one of his marquee political beliefs under the bus the moment it’s suited him. And I don’t think it’s at all unfair to hold him to a higher standard.

    Comment by Brad — 4/28/2008 @ 9:30 pm

  4. There’s an advantage, yes, but the idea that that politician will be bought by special interests would be silly, was my point (and that is one of the single biggest legitimate concerns about money in politics). The level playing field is between politicians that wouldn’t sell themselves for campaign money and those that would, when looked at that way (in that neither can, legally speaking).

    Comment by Adam — 4/28/2008 @ 9:47 pm

  5. I don’t think that’s silly though. There wouldn’t be reason to suspect that a politician who is independently wealthy in one business or another might not have his political beliefs skewed towards his particular business interests? The principle, it seems to me, is roughly the same. An oilman is going to be a lot more receptive to the preferred policy beliefs of the oil industry than, say, a lawyer whose campaign is financed entirely by constituent donations.

    McCain’s stated ideal is when corporate money has NOTHING to do with it and it’s all based on public funding on an even playing field that every candidate shares. That’s his rhetoric (and policy). Do you not think that pumping your own fortune made through a particular business makes you more susceptible to a certain business interest than if you’re funded through, say, public financing or millions of small donors?

    Comment by Brad — 4/28/2008 @ 9:59 pm

  6. You know how you feel about Jeremiah Wright, Brad?

    That’s how I feel about this AND Jeremiah Wright.

    Comment by Rojas — 4/29/2008 @ 2:02 am

  7. Heh. Fair enough.

    I think what really changed my view on campaign finance, though I had been tacking that way already, was having to actually get out there and work in the field, try to raise money, try to, you know, be a little guy wanting other little guys to be heard.

    The byzantine nature of it is one thing. That’s bureaucracy for you. But I think what really got my goat is that, due to the system being set up and championed by guys like McCain to “level the playing field”, the only people that can hang in terms of electioneering are either the creatures of Washington who wrote the damn laws, or the interests with enough money and brute force to just muscle their way through them. Regular folks don’t have a chance.

    And, in the case of the McCain-RNC hybrid, having to labor under those regulations for months and months, and watch McCain float past them because he has the party on his side, really galls me. That’s an advantage that, by definition, will never be allowed to challengers. So McCain has ended up being everything I used to support him railing against circa 1999. Independently wealthy candidate able to self-finance, exploiting loopholes only available to the powerful and well-connected to unlevel the playing field for himself, and creating a system both through his writing of the laws and his getting around them that further calcifies the advantages of incumbency and special-interest backing.

    On some level I know Adam’s right; you gotta do what you can to play the game. But coming from McCain, especially considering how much I had to bend over and take in the ass all summer to try to support a genuine grassroots movement, pisses me.

    Comment by Brad — 4/29/2008 @ 2:32 am

  8. McCainís stated ideal is when corporate money has NOTHING to do with it and itís all based on public funding on an even playing field that every candidate shares. Thatís his rhetoric (and policy). Do you not think that pumping your own fortune made through a particular business makes you more susceptible to a certain business interest than if youíre funded through, say, public financing or millions of small donors?

    If there was the appearance that one was running to enrich oneself; I can imagine it happening at the local level more than at the national level, though. However, such a restriction on one’s own money would be significantly more perverse than a restriction on donations and surely it would be unproblematically unconstitutional? One can argue about the extent to which donating money is free speech, but when it’s your own money you’re using to buy your own advertising for your own speech, it seems tighter-linked, to me.

    If the hybrid only appears once the candidate has been effectively chosen, I don’t see that the challengers issue is a big one. Presumably it could happen before the candidate is effectively chosen, but again, how do you stop a party throwing its weight behind a particular candidate at any stage? It might well be unwise if the contest is still competed (Howard Dean is avoiding it, for example, sensibly) but I’m not sure that it isn’t just part of having party politics in the first place.

    Comment by Adam — 4/29/2008 @ 6:17 am

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