There is a strange tension in the American political party. It strives to achieve a governing majority. That is its goal. But a governing majority is nothing but a hassle. It cannot accomplish much more than half measures, watered-down versions of what it promised, or symbolic gestures that change nothing at all. Eventually, its supporters catch on to this impotence, and they come to loathe it, decrying its members as dime-a-dozen politicians who squandered the public trust. So, I can't help but ask: why bother?

Of course, like a salmon swimming upstream, the party does bother. It works tirelessly to acquire 218 Reps or 51 Senators, even though it knows (or it should know) what awaits it upon "victory." And what awaits the party is one of the inevitable features of our system: it thwarts, stymies, and frustrates governing majorities. It was designed to do exactly that. Think about all of the various idiosyncrasies of our system that you first learned in eighth grade. The filibuster, the bicameral legislature, the tripartite government, federalism, the Connecticut Compromise, and so on. None of them are accidental. They all combine to make it excruciatingly difficult for the majority to accomplish anything of lasting substance. All of these have the effect of dispersing power.

The function of the political party is to concentrate power just enough so that the government can actually work. This is one reason why all of the original Framers ended up as party men. When it came time to solve the first problems of the young republic - it was soon discovered that a long-term coalition, built around a few basic principles, was a necessary expedient to coordinate activity across our very diverse government. What was needed was some kind of centripetal force in our system to collect at least some of the power that the Constitution disperses. Without such a force, our system would do little more than enforce the status quo. Thus, the party caucus was born. This remains the job of the political party to this day: to concentrate power by coordinating the actions of governmental agents with similar views.

But, unlike in other countries, our parties are, in a sense, working against our Constitution. As I said, the parties collect what the Constitution has dispersed. This means they must find a way to govern despite all of the impediments put in place to do so. The net result is a party whose power is accordingly diminished. Add five to zero, and you get five. Add five to negative three, and you get only two. That is the difference between the American system and other systems of democratic government.

A real problem for the party is that its campaign rhetoric never seems to match what it is actually capable of doing once it gets its hands on the majority. Every cycle, Democrats and Republicans promise all sorts of things that they cannot possibly deliver because the parties are simply not powerful enough to deliver them. This is a problem that the Democrats have been having in this Congress, as the Wall Street Journal observed today:

The way in which Senate Democrats wavered and then consented to the confirmation of Michael B. Mukasey as attorney general reflects the party's broader struggle to make headway on its national-security agenda, despite President Bush's unpopularity.

On questions such as Mr. Mukasey's stance on waterboarding, warrantless wiretapping and the war in Iraq, Democrats have been stymied by Republicans in Congress and the White House. That has sparked frustration among supporters, especially those on the left, who anticipated that last year's congressional takeover would force some policy changes.

These dashed expectations are one reason polls give Congress an approval rating lower than Mr. Bush's. The difficulties faced by Democrats on these issues look certain to complicate the party's bid to expand House and Senate majorities and regain the White House in 2008, a wartime election in which national security will be a major issue.

Democrats acknowledge the difficulty in speaking up for civil liberties while maintaining a tough stand on homeland security and terrorism.

Welcome to American governance, Democrats. It's one of the most frustrating jobs you can have. You are running a system whose designers intended to thwart you. And so, even though you have the majority, and you face a president whose numbers have been in the gutter for more than two years, you still cannot seem to do what you want to do.

This follows quite logically from the Madisonian design. Power is dispersed in our government so that no single faction, even if it is a majority (e.g. the liberal Democrats), can achieve its policy goals if those goals are "narrow." The only way these goals can be achieved is if a broad coalition, comprised of multiple factions (e.g. the liberal Democrats, the moderate Democrats, and the moderate Republicans), accept these goals and coordinate their actions to implement them. In this way, no faction can impose its will on another faction unduly - and true republican government is thereby preserved.

Most people look at articles like the one in today's Wall Street Journal, and ask, "Why can't they just get things done?" This is the answer: "James Madison didn't want them to!" Our system is designed to keep "things" from getting done. It's all right there in Federalist #10 and #51. They are the key to understanding the way our government works. If you can accept Madison's penchant for the run-on sentence - you'll find that these two documents answer most of your questions.

A question that has been on my mind in recent months is the following. Presumably, politicians know that they cannot get things done in our system. So why is it that, during the electoral campaign, they make promises that they know they cannot keep? I have sketched out some answers to this question - and in the next few days or so, I'll offer my thoughts on this blog.

Posted by Jay Cost at 09:57 AM | Permalink

It appears as though Larry Craig has decided to remain in the United States Senate. I imagine that many people - among whom I count myself - are not entirely bothered by this. It seems to me that Craig's crime did not fit the punishment of effective expulsion. What does bother me is his behavior since the story broke. It is very clear that Craig has been quite irresponsible to his party since the news of his bathroom indiscretion became public.

I would grant that Craig's party was irresponsible to him first. Five terms in the House and three terms in the Senate apparently count for very little in a Republican caucus that seems unable to handle its fears of further electoral losses. The Senate GOP's treatment of Craig had the stink of desperation from moment one. So, maybe they had this coming.

I think that there is a larger lesson to learn from what I'm calling the "Larry Craig Problem." The problem is just a species of a general problem that plagues both major parties. I hinted at it around the time that the story broke. There are real limits to the power of the American political party. We talk about the political party as though it is indeed quite powerful. Media elites tend to do this as much as any of us. But it is actually not that powerful.

Who has the real power in American politics? Individual office holders do. The Larry Craig Problem is a case in point. What, in reality, could the Republican Party actually do to Larry Craig? The answer: very little! The caucus leadership could take his committee posts away - but that is about it. Anything else they do amounts to shaming him in public - but the effect of this is obviously quite limited (could Craig be shamed any more?), and shaming Larry Craig means shaming the Republican Party, too.

This is why I choose to use the word "irresponsible." Our party system is irresponsible for the simple reason that individual office holders are simply not responsible to the broader party - either to the party leadership itself, the ideological philosophy around which the party is organized, or the voters who are regular supporters of the party. A stubborn legislator like Larry Craig can thumb his nose at his party all he wants. Ultimately, the consequences for his insolence will be small.

There are a number of reasons for this fact. I will not bore you with a laundry list. But I will say that the first reason is the Constitution itself. Our Constitution is what Richard Hofstadter once called a Constitution against parties. Our Framers were all anti-party men when they wrote the Constitution - and this fact continues to limit the power that the party can exercise in American politics. And so, while the power of the party has ebbed and flowed over the years - only in a few moments and in constrained ways could the major American party be called powerful.

In light of this, we can tease out a larger insight from the Larry Craig Problem. Larry Craig is not responsible to the Republican Party. He can essentially do what he wants - and the GOP has very few ways to control his behavior. So it goes with all legislators. Accordingly, is it any surprise that conservatives would eventually find that the Republican Party is behaving irresponsibly toward them? The party cannot control the behavior of its members - so how can it make members adhere to conservative principles? What can the "Congressional GOP" do? Ultimately, it is at the mercy of its own members and their electoral ambitions. The "Congressional GOP" is little more than a heuristic device for the 250 or so individuals in Congress who have chosen to stick an "R" at the end of their names.

Ultimately, we see here the shortsightedness of the electoral strategy of today's office seekers. Office seekers have a short term electoral interest in making it seem like they are in some sense responsible to a broader entity like "the party." Not all voters like this idea, of course. But some voters do. So, the legislative strategy that the professional office seeker chooses is to tell the voters who like the idea of the office seeker being responsible to the party that he will be responsible to the party, and to tell those who do not like the idea that he will not be.

To those who like the idea of responsibility, the sales pitch "The Republican Party stands for tax cuts and limited government!" has a great deal of meaning. The implication behind it is that if you vote for individual members of that party, you are empowering the party itself. But in fact you are not really doing that at all. To think that you are is to commit the fallacy of composition. You are falsely infering that the party is something more than the aggregation of individuals elected to Congress who happen to carry this party label. So, in the long run party leaders cannot enforce members to adhere to any kind of party platform. Those members "cheat" on that platform whenever it is in their electoral interests to do so. And, sooner or later, the platform becomes a dead letter, having been overwhelmed by the number of times the members of the party played a hand in defeating their own platform. And, you the voter who believed the initial campaign pitch are left disappointed.

The way people look at the Republican Party today is fundamentally different than the way I look at it. Others see it as a party that has failed to live up to the spirit of the Contract with America. The 2007 party failed the 1994 party. I think that misses the point. I think the 1994 party made promises that it could never possibly have delivered - and so the party of 2007 was in some sense inevitable. I see the Contract with America as little more than a rhetorical device that promised something it could not possibly deliver - responsible party government. Why? Because the document, and the "revolution" it represented, did nothing to alter the relationship between the party leadership and the individual candidates for office. And so it was a revolution that was always predicated upon whether the electoral interests of individual Republican office seekers aligned with the organizing principles of the revolution.

As anybody who has studied American government for a day knows, this is a thin premise upon which to found a revolution. The revolution succeeds or fails based upon whether it will help candidates get elected - so my money is on it failing sooner or later!

Ultimately, this is a problem that plagues both parties. Ambitious office seekers have an interest in promoting the fiction of responsibility - regardless of the party to which they belong. Democratic office seekers have an interest in communicating to (certain) voters that if you vote for your local Democrat, you will somehow be empowering the Democratic Party to do Democratic things. But really this is not true. A vote for your local Democrat is nothing more than a vote to give your local Democrat the privilege to vote with or against Democrats from other localities once he is in Congress. Democratic things will occur if and only if enough Democrats happen to find the same things in their electoral interests.

And so - you will get responsible party government if and only if enough individual partisans find it to be in their individual electoral interests to enact the party platform. In other words, responsible party government is conditioned upon the uniformity of legislative preferences - and therefore the uniformity of preferences in the electorate. In reality then, responsibility is always and everywhere predicated upon electability.

I think this is why the Republican Congress spent like drunken sailors on shore leave through most of their time in the majority. Of course, they all have anti-spending principles. But most all of them (like most all of us!) value their jobs above their principles. And most all of them recognized that sending money home to the district was a necessity if they wished to keep their jobs. So, they spent. And there was no Republican "ombudsman" to stop them from spending - the fact that the campaign arms of the party make it seem to voters like there is such an ombudsman is just a fiction to keep the true believers on board through the end of the current electoral cycle.

I take this to be all part and parcel of our original founding document, and the dirty little secret of American government that it embodies: nobody is actually in charge of our country. No one person. No group of persons. Power is dispersed to multiple groups. The parties do some work to organize power so that the mechanics of government can operate - but the function that the parties really serve is far, far different from what they make their hard core supporters think they serve.

Posted by Jay Cost at 11:52 AM | Permalink

I am moving out of town on Saturday - and so have not had much of an opportunity to blog, but I did want to comment on the ad that MoveOn.org ran in the New York Times. Politically, it was obviously pretty bad for congressional Democrats. It was something that was foisted upon them, and it was something that they paid a price for. I find it fascinating that an outside group could have such an effect on the Party of Jackson - and I took the whole affair as an example of how our political parties have fallen into decline, and how the consequence of this decline has led to a kind of civic incoherence.

Groups like MoveOn exist largely to serve functions that the political parties used to serve, but no longer serve. They used to be unimaginable - the Democratic Party once did all of the things that MoveOn now does. But over the last sixty years, the nature of our electoral politics have changed. The parties no longer serve so many functions. The functions still need to be served. And so up pop groups like MoveOn.

There are many reasons for this decline in the power of the parties. One reason is that the federal government has sought systematically to weaken them. The parties have been castigated as enemies of true democracy, and hamstrung accordingly. Were it not for the free association clause of the First Amendment, some good-government do-gooder types would have outlawed them years ago.

The consequence of this is, as I said, the out-sourcing of the functions that the parties used to serve. In many respects, this has been a good thing. Multiple points of access to our political system provide us all with a lot of benefits - but there are also a few drawbacks, some of which are quite significant. We saw one of them this week with the MoveOn ad. It was an ad that the Democrats did not endorse and would not have endorsed if given the chance. It was an ad that gave the GOP an opportunity to shift the debate - from talk about the course of the war to talk about the war's opponents. It was entertaining political theater, but it meant that the political conversation of the week was more incoherent than it should have been. Because of the ad, different people were talking about different things. There was far too much cross-talk. This is a shame, considering the importance of the conversation.

And this is a typical consequence of weakened parties replaced by multiple outside groups. All of these groups come to the conversation with slightly different points to make. And so, our political discussion is one in which there is frequently no consistent, coherent agenda. The conversation is quite unmanaged. Instead, everybody says whatever it is they want to say. While an absence of such an agenda gives more people an opportunity to say their peace, it reduces the chances that anything of real value will come from the discussion. Cross-talk rarely produces coherent policy outputs.

E.E. Schattschneider, one of the most insightful students of the political parties, once said that American democracy is unthinkable without them because they set the agenda of our government. Parties that are responsible set the agenda in a way that is relevant and coherent. That is, they make it so that our national political conversation regards issues that are of importance to citizens, and that can result in real solutions to these pressing problems. Weakened parties, like those of today, lack the capacity to set the agenda. One of the consequences of this is incoherence. Without the parties managing what gets said, everybody says whatever they want to say, and we have nothing but crosstalk. Politics reduces to an extended episode of Hardball. And, just like in Hardball, nothing of importance is ever accomplished. Everybody just yells across one another.

Posted by Jay Cost at 01:41 PM | Permalink

I had decided to avoid the Larry Craig story because I found myself appalled - not only by what Craig confessed to doing, but also the way the media covered it. I thought that the story symbolized the impoverished nature of today's political journalism.

But, in the last few days, the story has taken a turn - and there are some interesting insights to tease out of it. Namely, Craig is now considering not resigning:

Just when Republicans thought things could not get much worse for their scandal-stained party, Idaho Sen. Larry Craig leaked word Tuesday night that he is reconsidering his abrupt plan to resign from the Senate in the wake of his arrest in a police sex sting operation.

Top Republican strategists were neither delighted nor amused by the senator's decision to rethink retirement after pleading guilty to disorderly conduct following his arrest in a Minnesota airport men's bathroom.

While I find this surprising, I must say that I am not totally surprised. It makes sense to me that, after a few days to think soberly about his situation, Craig is having a change of mind. I think he's asking himself, "If I stay, what can they really do to me?"

Journalists and pundits usually assume that the political party is a powerful organization with control over members like Craig. This is not really true. In fact, political scientists generally adhere to two theories about today's political party - one theory governs our understanding of the party-in-office, and another theory governs our understanding of the party-in-elections.

The first is known as "conditional party government." The idea is that the party leadership (at least in the House) is powerful because the policy preferences of the members in the caucus are closely aligned. The caucus empowers the leadership to do the caucus will. But this empowerment is limited. Rarely, for instance, do you see the caucus leadership impose punishments on legislators who vote the wrong way. Instead, the caucus leadership exercises power through agenda setting and committee assignments.

The second theory is known as the "party in service." The idea is that, in the contemporary electoral campaign, the party does not exercise power over candidates. Rather, it helps them get elected. This is mostly because candidates - especially incumbents - can acquire the nomination without the blessing of the party leadership, and can raise funds independent of the party leadership. Candidates do not really depend upon the party organization anymore, so the organization has lost the ability to exercise power over them.

How does this relate to Craig? Simply stated, the kind of formal power that the party can exercise over a sitting senator like Craig is pretty minimal. The press painted the picture as if the party was "leaning" on Craig to exit the Senate. However, there is very little leaning the party could actually do beyond threatening to go after his reputation. Case in point: there were reports that the RNC was planning to issue a statement calling on Craig to resign. This is actually a symbol of the RNC's impotence over a guy like Craig. That strategy punishes Craig by attacking his reputation, but it also punishes the RNC to a great degree. After all, the national committee must suffer the ignominy of calling on one of its own to resign for ignominious behavior. Beyond these sorts of Pyrrhic strategies that attack his reputation, the party is left with very little more than taking away his committee assignments and working to defeat him in next year's primary. But, of course, his defeat is a foregone conclusion, regardless of what the party does.

By and large, the party lacks the formal power to force a sitting member of Congress to exit the chamber. Its power is really limited to attacking his reputation - at a cost to itself. And this is why I am less-than-shocked that Craig is thinking about changing his mind. He probably recognizes that, should he stay, there is very little his fellow partisans can do to him other than sully his reputation. Because his reputation is so sullied already, this is not much of a punishment. In fact, from Craig's perspective, his best bet might be to stay in the chamber so that, should he win an appeal, he might use his status as a sitting senator to get more attention paid to his legal victory, and therefore get his good name restored much more fully.

Posted by Jay Cost at 10:02 AM | Permalink

I read with rapt attention Dan Gerstein's column in this week's Politico. It discussed the politics of impeachment. Specifically, it reviewed the desire of the left to impeach President Bush as a way to end the war. Gerstein notes the anger of the Democratic base at the congressional caucus' inability to end the war, and then explains:

That helps explain how impeachment--the true nuclear option--rather suddenly made the quantum leap from the mutterings of the Mother Jones set to the latest rallying cry of the party's increasingly powerful Netroots bloc. The progressive community increasingly does not trust the national party leadership to take on the president, so more and more of them are coming to believe that the only option is to take him out.

Gerstein clearly thinks it is a bad idea, and he intends in his next column to review the case against it, which should not be hard. The biggest problem with impeachment is that the Democrats will never land a conviction. There is no way they could acquire the 2/3rds majority in the Senate. So, impeachment will not end the war. Another major problem - I know that it looks to many Democrats that the President has committed "high crimes and misdemeanors," but many Americans would see the case against Bush as being quite weak. The last impeachment looked to many voters to be a partisan side-show, and it did according damage to the Republican Party. This might do the same to the Democrats. Finally, the fact that impeachment would move from "off the table" to "on the table" without any good reasons would make it look all the more like a political stunt, and therefore an attempted coup (because, after all, to end the war - Cheney would have to be impeached, too).

To be frank, I think the Democratic base is acting irrationally. Before my Democratic readers get up-in-arms over this comment, let me say that I mean it in a narrow sense of the word. Impeachment is an irrational strategy. "Irrational" can apply to people, and therefore whether they are endowed with reason - but it can also apply to strategies, and therefore whether they will achieve the goals the strategist wishes them to achieve. I mean "irrational" in the latter sense of the word. As in, impeachment is a manifestly irrational strategy in pursuit of the goal of ending the war. It will not accomplish the goals the Democratic base wishes to accomplish. Indeed, it would set those goals further back.

The anger of the Democratic base is neither surprising nor all that unique. They are not the first, nor the last, passionate group of active citizens to have had their desires quashed by what amounts to the super-majority requirement of our system. Unfortunately for the left, the Iraq War is the status quo - and our system's status quo bias is very, very great. This is why the Democrats have not been successful in stopping the war. They need about 30% of the Republican caucus to support them - and they simply do not have it.

How, then, did the base come to believe that the Democrats could end the war? The answer is obvious - this is what the Democrats told them! This is why the anger is neither surprising nor unique. Strategic politicians looking for votes promised them more than they could deliver. This seems to be an endemic feature of our politics: politicians over-sell, voters are left disappointed and frustrated. Next week, I will investigate it in more detail.

Posted by Jay Cost at 11:00 AM | Permalink

In Tuesday's installment of this essay, I argued that the involvement of the political party in our electoral process is a potentially beneficial feature of our politics - and that, because our campaign finance laws treat the party as an enemy, rather than an ally, of good government, they fail to make use of them. In Wednesday's installment, I argued that the involvement of the political party in our election process is inevitable, and because our campaign finance laws ignore this fact and foolishly try to squelch the involvement of the party, they end up producing unwanted and inefficient results. I went on to sketch a brief four-point campaign finance law that I would support over the Federal Elections Campaign Act (FECA) or the Bipartisan Campaign Reform Act (BCRA).

Today, I would like to explain why I have no soft money contributions to the political party in my scheme. First off, let me specify exactly what I mean. As Mr. Smith rightly notes, soft money is simply money not limited by the "hard" law of the FECA. And so, when I say that I would have no soft money to the party or the candidate, what I mean is that I would limit the amount that any group or individual could give to a party. It is my preference for this limitation that induces me to oppose the kind of soft money giving to the party that characterized the end of the FECA regime - in which individuals, unions, and corporations would give six-to-seven figure amounts to party units.

On Tuesday I argued that the involvement of the party in elections is potentially beneficial. And yesterday I argued that it was inevitable. The implication from these two points is that the party is not necessarily going to act in a way to induce what I have been calling responsible party government. The party does not have a compelling interest in responsible party government. Rather, it has a compelling interest in electoral victory - and it is this interest that can be molded, by institutions like campaign finance laws, into a foundation for responsible party government.

Only once - so far as I know - has a successful reform movement made conscious and explicit use of the democratizing power of the political party, and this was the Democratic reform of Andrew Jackson and Martin van Buren. [N.B. You can always identify a professional student of the political parties by where he places Martin van Buren - the founder of the first mass American political party - in his ordering of American presidents. He's in my top ten!]

For long stretches of our nation's history, this natural inclination of the party to be involved yielded bad results. In the age of the political machine - which can be dated broadly from 1865 to 1932 - the government failed to induce parties to act responsibly. Instead, party involvement meant patronage, plutocratic control over nominations, local elections that only rarely concerned the major problems of the day, and uninspiring and unworthy political leaders.

So, we cannot be Pollyannaish about the role of the party. The party is a potential ally of good democratic governance - but we must remember that this is not because the party shares our interest in it. It is, rather, because the interest of the party - to win elections - can be used for our interest of good governance. Accordingly, we must be mindful of the laws that govern party behavior because bad laws might, just like the FECA and the BCRA, thwart our objective of obtaining democratic accountability.

Thus, I would limit contributions to the party. It is one such rule in a package of reforms to induce the party to compete responsibly. My logic for that position is as follows.

The party's principal goal is electoral victory. In the political economy of today's electoral campaign, victory at the ballot box requires television advertising, which in turn requires money. And so, in pursuit of its quest for electoral victory, the political party is in pursuit of money.

I argued on Tuesday that one of the powers of the party is to set the political agenda, to frame the debate of the campaign. This is the lynchpin of responsible party government - the party establishes this agenda in a way that is salient, relevant, and unambiguous such that voters have clear choices over vital issues on Election Day. I have argued here that we should not expect the party to do this spontaneously. The party's interest is not in democratic accountability, it is in electoral victory.

Meanwhile, empirical evidence - which I referenced in my original article - has shown that contributions to politicians do not buy votes. Rather, they buy time - that is, they help set the agenda: politicians receive money from PACs, and in response they think a little longer and a little harder about the issues the PACs want them thinking about.

Thus, the concern with unlimited contributions to the party is that they might induce it to set the agenda in a way that is irresponsible. In other words, the party's need for money might influence it to accept large contributions and, in return, alter its campaign agenda to satisfy the donor at the expense of the electorate's interest in clear contrasts on vital issues. So, for instance, I would have a problem with a large contribution to a party from a telecommunications firm. As a highly dissatisfied, nay disgruntled, cell phone user, I think that telecommunications reform is badly needed. Americans as a whole might very well feel similarly. The only way our democratic institutions could induce our governmental institutions to take action is if the party places telecommunications reform on the electoral agenda. A large contribution from a telecommunications firm could very well induce it to keep it off the agenda. Might the party do this? Absolutely. Remember, its interest is in electoral victory - not maximum democratic accountability. If it wagered that the money from the firm was worth more to its electoral goal than the issue of telecommunications reform being party of its campaign pitch, it would be rational for the party to accept the money and take the issue off the agenda.

This is why I am particularly concerned about large contributions by entities to both the Republicans and the Democrats. A contribution to one induces one to keep it from its agenda. The other might still be induced to place it on its agenda - indeed, it may be more induced, as it can now make an issue out of the contribution. However, a contribution to both could induce both to keep an issue off the agenda of both - thus effectively silencing the public on the matter.

This is the point that I was trying to make in my original essay. Democratic government is simply unthinkable without the political party. The party places, or does not place, items on the agenda of the public, whose response is limited to a simple "Yes" or a simple "No." If the party is influenced not to place a certain item on the agenda, then the public will necessarily have no say on what the government does on that matter. We might think of the party as the translator of the public. Its voice is unintelligible to governmental officials without the help of the party. What happens to a foreign speaker if his translator has been paid by a third party not to translate his opinion regarding certain matters? He loses the ability to communicate on those matters. He has lost his voice to the third party, who has "bought" his translator.

So, I think we must limit party contributions. These contributions could buy for an individual or a group what no private person or group has a right to buy - namely, the ability to set the national agenda. We need to make contribution allowance limits large enough to reduce the pressure on the party to find the resources that are necessary to compete. However, we need to limit them so that individuals and groups who contribute to a party are doing so because they agree with that party's issue proposals, not because they want to direct what the party places before the public for consideration. If private groups wish to place an item before the public - or to take an item off the public agenda - let them engage in electioneering, let them participate in the marketplace of ideas that is the political campaign. I would place no limits on that, provided that consumers of their ideas can clearly identify the source behind them. It is only the party that I would prevent from being able to take unlimited funds from a single entity.

Philosophically, this distinction between the party and other political actors rests upon the recognition that the political party plays a unique role in our society. No other entity is in a position to set the political agenda as the party is. The party is not merely another political action committee. We need to recognize that the political party is a private and public institution. It is a private institution in many respects (Pat Leahy would be little-girl-giddy if the FOIA applied to internal RNC communications!), but, in its control over the national agenda, it nevertheless serves a vital public function. We must recognize that it does, and we must work to encourage it to serve this function as well as it is able.

What else might induce responsible agenda-setting? One way to influence the party to set the agenda responsibly is to engender robust competition for as many elections as possible. This will activate and energize the voters, making them think more closely and carefully about politics. An activated and energized electorate means one that is thinking about its problems, and how political solutions might ameliorate them. This induces the party to craft relevant issue positions. My intuition is that ending the limits to party contributions to candidates would have this effect. Currently, the party is only able to contribute without limits if the expenditures are "independent," which essentially implies television advertising. This, in turn, means that candidates are on their own in developing the organizational sophistication sufficient to make them competitive. It is only when a candidate has made himself competitive that the party will begin to participate in the campaign. It can do only a small amount to help the candidate become competitive. It cannot, for instance, give the candidate the cash to hire a fundraising specialist. If we eliminate the caps on party contributions to candidates - my intuition is that the party will use its newly found freedom to "seed" more competitive candidates by helping them acquire the kinds of capacities that a winning candidate needs. This, in turn, will probably influence more dynamic and better-qualified individuals to campaign for office.

Overall, this would make for better-run campaigns and thus more competitive electoral contests. Who doesn't want that? Incumbents, of course! The legislators who have imposed these "reforms" upon us don't want that. As a matter of fact, they are just about the only losers in a more competitive electoral system. This, incidentally, is another, not-so-coincidental failure of the FECA and the BCRA - by limiting the role of the party in the campaign, they have made our elections generally less competitive. They thus benefit current officeholders. Bear that in mind next time you hear a sitting member of Congress smugly and condescendingly preach to you about "fixing" the system!

Another way to induce this kind of responsibility is an active and robust party base. If an activated and energized electorate is forcing a party to be relevant, an active and robust party base will prevent the party from taking issue positions that are identical to the competing party's position. That is, a robust base prevents both sides from tacking to the median voter, where there are no clear issue distinctions. Accordingly, I am strongly in favor of reforming the party organization from top-to-bottom. Unfortunately, party organizations today are either antiquated (like the party "clubs" that became popular in the 1950s and 1960s) or elites-only (like the national party units). The party can and should reconstitute itself to be a place for political activists to achieve not just what Edward Banfield and James Q. Wilson call purposive benefits like policy reform, but the solidary benefits that come from being around like-minded folk. In other words, the party base today, for as vital as it is to the electoral prospects of the party, is not-at-all socially integrated into the party organization itself. Staunch Republicans feel a stronger sense of identity by listening to Rush Limbaugh than by going to a local party meeting. Staunch Democrats feel that sense more by participating at DailyKos than by working with the party. It was not always this way; for many years, the party was a social entity. However, the party organization failed to update its organizational structure, and it has since stopped being a social meeting place for the politically active. Restoring the social basis of the party will keep the party honest to its base - it would also probably enliven and invigorate the currently torpid campaign for local and state offices, which would make for better governance from the top of the government to the bottom.

These are just a few examples I have in mind - I mention them to underscore the following point. Inducing the party to set the agenda responsibly requires a whole set of political institutions, none of which constrict the party or party activists, but rather guide their natural tendencies toward a socially beneficial result. Limiting or capping contributions to the party would be part of an overall scheme. The problem with unlimited contributions is that the electoral-driven party might be induced to set the agenda irresponsibly. And, as a responsible setting of the agenda is a public good, we should prevent this from happening. But we should also work generally to revitalize the political party - by doing things like inducing serious competition from the top to the bottom of the ballot, and restoring the party's social function in American political life. These kinds of actions will, I think, move us closer to the ideal of responsible party government - and therefore to an electoral system that does a good job of keeping government officials accountable.

Posted by Jay Cost at 12:00 AM | Permalink

Yesterday, I began my response to Bradley Smith's recent article at the website of his Center for Competitive Politics. My trajectory in this endeavor has been to offer a thorough justification for why I would not allow unlimited "soft" money contributions to the political party. In response to Smith's well-reasoned criticisms of my initial thoughts on the matter, I decided it was only appropriate for me to outline exactly what I would want in a campaign finance regime.

This, in turn, led me yesterday to outline why the role of the political party in the electoral campaign is potentially beneficial. Today, I have two objectives. First, I am going to outline why I think the role of the party is inevitable, and how - because recent campaign finance laws have failed to recognize this fact - we are saddled with so many unintentional and inefficient side-effects. Second, I am going to bring both of these observations - the party is a potentially beneficial and inevitable agent in our electoral process - to bear in the development of a modest set of campaign finance reform proposals. This will pave the way to tomorrow's discussion of why unlimited party contributions are not part of my proposal scheme.

So, I shall begin with a look at the inevitability of the party's role in our elections. My argument here is that, unless you outlaw the party altogether, it is going to search endlessly for ways to maximize its involvement. Eventually, it is going to find ways to be highly involved. And so, campaign reform laws that presume that party involvement can be kept to a minimum are simply foolish.

Why is the party's role inevitable? It is because the party's fortune is wholly and intimately connected to the fortunes of its candidates. E.E. Schattschneider defined the political party as a team whose purpose is to win elections. Thus, the party and its candidates for office are inseparable, which means that the party will always work to find ways to be more and more involved in the campaign of its candidates. The party has an existential stake in American elections. If all party candidates lose, the party itself ceases to exist. Thus, we can and should expect the party not only to participate, but to participate as much as it possibly can. In this way, it is unlike any other political entity - if we allowed the party to do so, it would take complete control over every campaign for political office. In point of fact, this is what it essentially did in the 19th century!

This is why what I have called responsible party government is possible. The party wants to be involved - and it is going to try to involve itself! If we manage the way in which it is involved, rather than try to constrict it, we can achieve an electoral process in which the public is given clear, contrasting positions on the vital issues of the day. Responsible party government is practical because it recognizes and makes use of the natural inclinations of the party.

Unfortunately, because reformers have consistently failed to appreciate fully the inevitability of party activity, their efforts to regulate the party have always produced unintended, and undesirably inefficient, effects. Any scheme to maximize democratic accountability is doomed to fail unless it accounts for, and makes full use of, the political party. In other words, responsible party government is, in my opinion, the only way to achieve democratic accountability in a system that includes political parties. If you try to achieve accountability in a party system without using the party to achieve this result, the party is going to thwart your efforts.

Why? It is because, so long as the party exists, it is going to stick its nose into every election it can. This means that if a law tries to limit its role, the party is going to start searching for "loopholes" in it. Don't think for a moment that it won't find them, either! All laws have loopholes because language is necessarily vague and because lawmakers cannot envision every possible scenario, let alone indicate in the law what should happen in all of them. Barring the use of loopholes, the party can still rely upon that pesky First Amendment to involve itself - freedom of association is an unqualified right that is highly useful for the party. The party can, and has, appealed to the courts, which have accordingly gutted reforms by striking from them elements essential to their central purposes. The result has been, and will always be, that the party thwarts schemes for non-partisan democratic accountability, which proceed to devolve into ridiculously irrational compilations of rules that do nothing except induce inefficiencies that nobody wants.

Thus, you must either eliminate the party (which would require an amendment to the Constitution to rescind the right of free association), or recognize and use the role that it has. The current campaign finance regime does neither - hence the absurdity of the spectacle that it creates every even-numbered year (Including, but not limited to, the liberal bloc on the Supreme Court siding with the government against a small, grass-roots organization like Wisconsin Right to Life! What, pray tell, would Earl Warren think of that?). Our current regime is so ridiculous because its innovators wrongly assumed that the role of the party could be kept to a minimum. It cannot be. Accordingly, the intentions of the whole regime have been completely undermined by the fact that the party has, inevitably, found and made use of loopholes in the law. The result is a system that is entirely inefficient in terms of protecting either principle that we would like an electoral scheme to embody, namely free speech and democratic accountability.

"Independent expenditures" are a perfect illustration of the way in which the current regime - because it fails to recognize, let alone make use of, the reality of the party - takes us further from an ideally accountable system. I can't stand "independent expenditures" - they are an offense to both good sense and democracy. First, the concept of "independence" between a political party and its candidate for the office it wishes to win is nonsensical. The fact that we conceive of the party and its candidates as being independent of each other is a sign that we still - after 200 years - have not grasped exactly what the party is! Second, "independent expenditures" are horribly inefficient if our goal is to maximize democratic accountability. They are an example of maximized speech rights, but minimized accountability. The party is going to spend as much as it can because - like its candidates - it has a compelling, existential interest in electoral victory. The First Amendment guarantees its right to spend this money. Thus, the party can spend money, and we know that it will spend money. Would society not be better off - both from a speech perspective and from an accountability perspective - if we allowed the candidates and the party to coordinate their activities? After all, the party is going to do everything it can to be involved, and party involvement is a good thing because it can yield a contest that maximizes coherence in campaign messages, and therefore democratic accountability. Why should we allow the party to participate as much as it wants, but refuse it the ability to coordinate its efforts with the candidate?

There are all kinds of ridiculous inefficiencies in our system that stem from the fact that reformers have failed to regard the party properly. My favorite is an example discovered by California State University professor Diana Dwyre. Dwyre found that, under the FECA regime, national party organizations experimented with what she called "spinning soft money straw into hard money gold." That is, they began to contribute large sums of soft money to state party units in exchange for hard money contributions to and expenditures for federal candidates. Did state party units keep up their end of the bargain? Oh sure, but not on a 1:1 basis! The state party units would contribute a sum of hard money to candidates, but not the same amount that the national party gave in soft money. They pocketed a not insignificant fee. Thus, our FECA regime turned our state party units into usurers of their own national party!

This is the result of the FECA and the BCRA. The party is left to "exploit loopholes" to do what it is naturally compelled to do. The loopholes are inefficient, and thus the party is not in a position to do what it could and would do in a responsible party government model. In so doing, it undermines the intention of the misconceived laws that were supposed to fix the system. We are left with an electoral system that does not protect political speech as much as it should, and does not maximize the public's ability to exercise democratic control.

Who is the big winner in today's campaign finance scheme? Incumbents! In a system where the party's role is stultified, and the party responds by thwarting the intentions of the system - responsible party government does not exist, and thus clear positioning on relevant issues does not happen. The result is that the public never has an opportunity to evaluate coherently the actions of governmental agents. And so, incumbents can make use of the "personal vote" in their districts - and thus not fret too much over whether they actually do anything in government. They would be the losers in a responsible party government model because that model embodies the purpose of elections: to evaluate and pass judgment upon the actions of governmental agents.

In frankness, I think that there is no single area of American political life in which there has been such a backslide than in the accountability that the ballot box yields. In far too many respects, the voting public enjoyed a more democratic system in 1832 than it does in 2007. The unexpected (but not unpredictable!) results of "progressive reforms" to our system have conspired again and again to reduce greatly the quality of our democratic process. In many ways, we had it better immediately after the "Jacksonian Revolution" than we do today. It is ironic and sad that, as America has brought more and more of its people into the voting process, it has made that process less and less effective at holding government to account. What I find so frustrating is that the ignorance of "good government" reformers for how our system actually works has been matched only by their smugness for those who dare to disagree. It is as if they think that water can be made to flow uphill, and anybody who disagrees is either compromised by the pernicious influence of corporate "Big Water" or is just plain foolish.

So, what law would I support? Generally speaking, I would support any law that recognizes the inevitability and utility of party involvement, and that tries to use this involvement to maximize electoral accountability without minimizing free speech. I would heartily support the following against either the BCRA or the FECA:

(1) For all entities except the political party and its candidates, there are no limitations on any resources raised or spent on electioneering. All private citizens, or groups of private citizens, are free to spend as they wish in whatever quantity they wish if their purpose is to persuade the public. They may spend freely to endorse the election or defeat of a candidate, or to encourage or discourage the public from holding any issue position.
(2) The political party and its candidates are not limited in how much they can spend, either. However, they are not allowed to raise unlimited sums from any single source. Nevertheless, the contribution limits imposed by the BCRA are raised significantly.
(3) The direct contribution and coordinated expenditure limits of the BCRA are abolished. There are no barriers to the extent to which the party may coordinate its activities with its candidates.
(4) The BCRA "stand by your ad" provisions are retained.

We also recognize that the party plays a unique role in this process, and that its natural tendency should be neither denied nor constrained, but guided to maximize accountability. These proposals would, I think, involve the party more intimately in its candidates' campaigns - thus helping the party impose a more coherent, more unified campaign message every election season. No longer would we see so many candidates so easily campaign on whatever will get them elected - rather, the party may now exercise a centripetal force on the 470 or so campaigns for the Congress. The nation would thus move closer to the ideal of responsible party government, in which it reviews and selects its preferred party platform.

This is why I would limit the sources of party revenue, i.e. the party would still not be allowed to acquire unlimited dollars from any one source. I think that it hampers the possibility of responsible party government. I will discuss this tomorrow.

Let me conclude this segment of the discussion with the following considerations. In my opinion, the recent history of campaign finance reform has been part and parcel of our nation's mixed, and misplaced, feelings about the political party - which date back to the Founders. The actions of the party today might be part of the problem, but the party itself is nevertheless the solution. The trick is not to limit the scope of party activity, but to encourage and guide it to a positive result.

Americans, for whatever reason, have always had trouble understanding this. Deep down, I think most of us are sympathetic to Hamilton's position that there should be no party because we should all see eye-to-eye on the "true" "national" interest. After more than two centuries of sectionalism and factionalism, I think we should dispense with this concept - we should recognize that there are going to be fundamental differences that separate us, that these differences can only be resolved by elections, that we need to frame electoral contests as clearly and as relevantly as we can, and that we need the party for this task. The role of the government should be to induce the party to frame our elections in socially relevant and responsible ways - e.g. we need to avoid the "small," patronage-minded politics of the political machines in the Gilded Age - while nevertheless promoting the role of the party.

Unfortunately, the FECA and the BCRA implicitly endorse this wrong-headed, albeit it very old, attitude about the party being an impediment to democratic accountability. Rather than treat the party as a potential ally of good governance, the FECA and the BCRA treat it as an enemy. And when the party does what it naturally does - try to involve itself in the campaign by "exploiting loopholes" (note the language used by reformers - the party does not "make use of the silence of the law," it "exploits loopholes!") - campaign finance reformers offer that as proof of their thesis that the party is part of the problem. This circular way of thinking leads to a stultification of all reform efforts, and an inefficient electoral process. The way out of the cycle is for us to "get over" our abhorrence of the party system, admit that it is inevitable, recognize that it can be of great benefit, and design a campaign finance system that helps the party achieve this benefit.

Posted by Jay Cost at 12:00 AM | Permalink

This week, Bradley Smith of the Center for Competitive Politics offered an interesting and thoughtful response to a recent essay I wrote on the role of soft money in politics. Regular readers will recall that Mr. Smith - who is the former chairman of the Federal Election Commission - wrote an article for City Journal to which my essay was a response. The source of our disagreement is the role that soft money should play in national politics - I have a more restrictive vision for its role than Mr. Smith. His most recent essay is a response to my explication of my position.

I'd like to continue the discussion with the following considerations.

I am going to try to avoid the kind of format - where I quote him at length and then respond - that I imagine will bore readers who have neither the time nor the interest to follow in that kind of detail. I do have some back-and-forth comments to make. I have attached these as an appendix to this essay. My hope is that, even if you have not read (nor plan to read) my original essay or Mr. Smith's response to it, you will still derive some value from the following amplification of my position.

A much needed one at that. In the wake of Mr. Smith's article, I carefully reviewed my original essay - and I must say that it does not do a very good job of reflecting my views. And so, I think that Mr. Smith's criticisms are - in many instances - quite valid. I should have been more precise. Mr. Smith calls upon me to state a "detailed position." This is an entirely reasonable request - and that I did not provide a position was my principal failing in my original article - and so I am happy to oblige here. The issue that divides us is the role that "soft money" should play in politics - while the role I have in mind is more expansive than the role he seems to think I have in mind (for that, see the appendix!), my preference is that political parties not have access to what came to be known as "soft money." To justify this fully will require, I think, a careful statement of my opinions on campaign finance - which I have been able to develop with some thoroughness over the years thanks to my study of the parties.

I am going to spread my response over three days. Today and tomorrow, I shall offer a philosophical sketch of what I would like to see from a campaign finance regime. Friday I shall explain why I object to the role of soft money in the political party.

A final note to readers: I apologize for my absence from blogging on Tuesday. A power outage thwarted my attempts to work on this piece on Monday. Work on this piece took up most of my Tuesday - hence, no time for blogging. I thought it best to make this my priority. After all, when the former chair of the FEC asks you to clarify your opinion, you best put that at the top of your agenda!

***

Fundamentally, I think that we must remember that campaign finance is not, strictly speaking, an issue solely regarding speech rights, although this is important. It is also about: how do we design an electoral system that maximizes democratic accountability, i.e. enables the public to use the franchise to influence the actions of the government as much as possible? Now, you are not going to hear old, tired arguments from me that we have to make choices between the two. As far as I am concerned, speech is a necessary condition of accountability. The more we limit speech, the more we prevent voices from being heard, the less accountability our democratic process will create.

However, we must be careful here. We must recognize that speech rights - even though they are a necessary condition of democratic accountability - are not a sufficient condition. In other words, if we fail to maximize speech rights, we will not have an accountable electoral system. On the other hand, we might maximize speech rights and still not have an accountable system.

I think that the two laws that have governed the last thirty odd years of federal elections - the Federal Elections Campaign Act (FECA) and the Bipartisan Campaign Reform Act (BCRA) - are miserable failures in protecting either principle, and that modifying the BCRA to protect speech is insufficient for protecting accountability.

In other words, my position is that the FECA (as amended in 1974) is a bad law that has wrought a bad result. The major problem with adjustments to it - be they FECA amendments, Court rulings, or the BCRA - is that they have only been tinkering at the margins with this misguided and wholly unsuccessful law that not only stultifies our attempts to achieve accountability, but also misunderstands a basic fact of American political life. If I had my way, the FECA would be scrapped altogether - and we would start from scratch with a sober understanding of how politics in our country actually works.

What do the FECA and its successors misunderstand? The inevitable, and potentially beneficial, role of the political party in our electoral process. Let us examine the potential benefits before we look at the inevitability.

E.E. Schattschneider, in his seminal Party Government, argues that the role of the public in our process is necessary, but limited. The public has a vocabulary of only two words - "yes" and "no" - and it can only speak when spoken to. We maximize the effectiveness of the public's voice - and therefore maximize the extent to which public officials are held accountable by it - when we ask the public tightly-defined and socially-relevant questions. That is, the public exercises maximum control over governmental officials when, (a) there are clear, relevant issues at stake in an election, and (b) one candidate clearly represents one set of issues and another candidate clearly represents another set. In such an election, the public choice indicates a clear preference among policy alternatives - and thus a governmental mandate.

What Schattschneider is implying is that the public does not have the capacity to frame the election or to set the agenda. It cannot establish a contest over clearly-espoused and relevant issue positions. Who has that capacity? Historically, that role has fallen upon the political party - without which, Schattschneider rightly argues, American democracy would be unthinkable. Indeed, the party is so important to our system that our Founders began their civic careers as anti-party men, but eventually came to found the first parties!

It is strange to think of elections being framed - however, they are. Ask yourself why American elections hinge on certain issues and not others. The answer is that a set of individuals has chosen the particular frame. Theoretically speaking, the divisions between candidates in a campaign could be over almost any issue. The issues over which a campaign is actually waged have been determined by some entity or entities other than the electorate. Traditionally, this entity has been the party. The party has chosen the scope of political conflict.

Even though party control over the debate has sometimes limited democratic accountability, the party remains our best chance to maximize this accountability. Why? It is because, when the party frames an election coherently and relevantly, we can achieve something akin to responsible party government, which is a set of maxims that describe a normative ideal:

1. The political party takes clear issue positions for the purpose of the electoral campaign. Candidates who hold a certain party label are known to hold these issue positions by virtue of their association with that party.
2. The party - upon attaining control of the government - endeavors to enact its policy program.
3. In the subsequent election, the party is evaluated by (a) the extent to which it was successful in its enactment, and (b) the extent to which the enactment was beneficial.

It should be clear that the political party is the only agent in our country with the capacity to accomplish any semblance of this coherence. What is required for the responsible party government model is for candidates of the same party to take uniform issue positions. Because elections in our system are geographically diverse, and the election of one candidate does not necessarily imply the election of another, we should not expect candidates to evidence this kind of coordination spontaneously. Thus, we are in need of some kind of centralized force that influences them to coordinate. We need an agent to coordinate and manage, at least to an extent, elections all across the country. Hence, the centrality of the political party to democratic accountability: the party is the only agent with the resources for and the interests in such a task.

Unfortunately, the FECA - and, because it retained the FECA's basic philosophical orientation, the BCRA as well - moved us further from this ideal. Both laws are anti-party. Both treat the party as part of the problem - whereas in the responsible party government model, they are the solution. The FECA and the BCRA tightly, even punitively, constrict the party's ability to coordinate campaign messages among its candidates in different electoral contests. Specifically, the contribution and coordinated expenditure limits placed upon the party prevent it from undertaking the task asked of it in the responsible party government model.

What do we have instead? We have a system in which local candidates are in control of local elections. The party plays only a modest role in inducing a national campaign from the 470 or so congressional campaigns waged every two years. Beyond this small nationalizing influence, the congressional election is quite local. This may sound all well and good - but consider the result. Party candidates run campaigns not based upon a unified, coherent political message that binds one party candidate to another, and that - if accepted by the public - would be justification for governmental action. Instead, they run campaigns designed simply to maximize the chances of individual victory. Thus, without clear and relevant contrasts between the parties - the electorate is not able to render a coherent judgment about either the recent actions of government, or about what should happen next. Party candidates win (or lose) not because of a discrete set of issues of national scope and salience, but rather based upon whether they can frame the local debate in a way that benefits them the most. Accordingly, they develop moderate issue positions, exploit issues that are of little salience to the nation, exploit the "personal vote" to achieve election, or make excessive use of the pork barrel, etc. The result is a government that has no mandate from the public - and, conversely, a public that exercises only little control over the government.

Many factors in what I like to call the political economy of the electoral campaign have induced this outcome. However, a major factor has been the FECA followed by the BCRA - both of them have, as I said, punitively limited the extent to which the party can influence party candidates. The campaign finance regimes of the last thirty years have prevented the party from producing from its diverse candidates a unified, coherent, and clear political message that the public may evaluate and select if it so chooses. In so doing, this regime has diminished the influence of the public in whatever actions the government decides to adopt or not adopt. A weakened party means weakened democratic accountability.

As I said, an engaged party is not only potentially beneficial - it is inevitable. What do I mean by this? I mean that the party is naturally inclined to be involved in the campaign for office. An understanding of the natural inclination of the party helps us to understand the failures of our current campaign finance regime, and points us toward a regime that more closely resembles the ideal of responsible party government. I shall thus continue the discussion tomorrow with this point.

The appendix follows.

Continue reading "Campaign Finance Reform and the Political Party: A Response to Bradley Smith, Part 1" »

Posted by Jay Cost at 12:00 AM | Permalink

Former Federal Election Commission Chair Bradley A. Smith had an interesting article in City Journal, which makes a libertarian-esque case against campaign finance reform. In it, he makes the following argument:

Reformers...claim that reform gets rid of the political corruption that supposedly follows from large campaign contributions. Yet study after study shows that contributions play little or no role in how politicians vote. One of the most comprehensive, conducted by a group of MIT scholars in 2004, concluded that "indicators of party, ideology and district preferences account for most of the systematic variation in legislators' roll call voting behavior." The studies comport with common sense. Most politicians enter the public arena because they hold strong beliefs on public policy. Truly corrupt pols--the Duke Cunninghams of the world--want illegal bribes, not campaign donations.

As far as I know, all of the facts in this quotation are absolutely true. I have never seen any systematic evidence to indicate that contributions influence "roll call votes." However, is this the only way influence can be acquired?

Absolutely not!

In fact, if we look away from the congressional floor, and look instead to the committee level - we see something quite different. What we see are moneyed interests buying involvement, not votes. Moneyed interests spend resources to induce legislators to think positively about the issues they want them thinking positively about. In other words, moneyed interests exercise what I have, on this site, called the second mode of power. They help set the agenda. This is the argument of Richard Hall and Frank Wayman in their seminal article in The American Political Science Review called, "Buying Time: Moneyed Interests and the Mobilization of Bias in Congressional Committees." After testing their hypothesis, they conclude:

[W]e found solid support for our principal hypothesis: moneyed interests are able to mobilize legislators already predisposed to support the group's position. Conversely, money that a group contributions to its likely opponent has either a negligible or negative effect on their participation. While previous research on these same issues provided little evidence that PAC money purchased members' votes, it apparently did buy marginal time, energy, and legislative resources that committee participation requires. Moreoever, we found evidence that (organized) producer interests figured more prominently than (unorganized) consumer interests in the participation decisions of House committee members - both for a case in which the issue at stake evoked high district salience and one where it did not.

We should expect something akin to this. After all, if special interest money does not acquire special interests anything at all - why would they contribute so much? In other words, a rational view of interests groups induces us to expect that they get something from their contributions.

This is why the issue of campaign finance reform is not purely a First Amendment issue. Smith calls campaign finance reform a "war on political freedom." In some instances, I would agree with that. But, one such area in which you will find me in staunch disagreement is the issue of soft money. If AT&T and Coca-Cola could write $50 million checks and pay for each party's political conventions - as they could before the BCRA (the Bipartisan Campaign Reform Act, a.k.a. McCain-Feingold) - it seems to me that the overall effect is one that thwarts "political freedom." If these entities are "buying time," to what extent is the government not conducting the people's business, and thus to what extent do the people actually control the actions of the government?

Money dedicated to the purpose of electioneering is money that, if restricted, limits political freedom. On this, I do not think Smith and I would disagree. However, these large soft money checks were not dedicated to electioneering. These large corporations did not give this money so that the public could hear their views, or their favored politicians' views, in the public forum. Rather, they gave large quantities of money to both parties so as to avoid their issues being considered in the public forum. This undermines the very nature of our democratic process.

And so we see the bottom line. Smith offers several anecdotal examples of the outrages of campaign finance reform. And, believe you me, I am sympathetic to all of them. Quite frankly, I think the basic premises of the Federal Elections Campaign Act (the FECA, which the BCRA replaced in 2004) are philosophically misguided and socially detrimental. It is a bad law, and - by accepting the FECA's basic view of how campaign finance should be regulated - BCRA made things worse. [Personally, I think campaign finance reform should - though it never has - promote what scholars have called responsible party government.] Nevertheless, it is just true that there are some campaign financing activities that can and do undermine our political process. In those instances, the government can and should regulate it.

I count soft money contributions to the political parties as one such instance where the government should be involved.

Posted by Jay Cost at 12:00 AM | Permalink

Yesterday, in FEC v. Wisconsin Right to Life, the Supreme Court struck a blow to the campaign finance regime that has been in place since 2004. Or did it?

The issue in question is whether Wisconsin Right to Life, a non-profit corporation, could run what it claimed to be issue ads within thirty days of the primary with money that came from its general treasury fund. The ads in question called upon viewers to encourage Senators Herb Kohl and Russ Feingold to vote against the filibuster of judicial nominations. They did not advocate that Senator Feingold, who was up for reelection in the fall, be defeated. At the time, the FEC ruled that these advertisements were impermissible under the Bipartisan Campaign Reform Act (BCRA), a.k.a. McCain-Feingold.

The BCRA prohibits money from corporation and union general treasuries from financing "electioneering communications" (corporations and unions must instead work through PACs). An "electioneering communication" is, according to the BCRA,

Any broadcast, cable, or satellite communication which--
(I) refers to a clearly identified candidate or Federal office;
(II) is made within--
(aa) 60 days before a general, special, or runoff election for the office sought by the candidate; or
(bb) 30 days before a primary or preference election, or a convention or caucus of a political party that has authority to nominate a candidate, for the office sought by the candidate; and
(III) in the case of a communication which refers to a candidate for an office other than President or Vice President, is targeted to the relevant electorate.

In Wisconsin Right to Life, the Supreme Court ruled against the FEC. It upheld the blackout provision, but ruled that the ads were nevertheless permissible.

The blackout provision was one of several intended to close a loophole that parties and interest groups began to exploit in 1996. The Democratic National Committee, at the behest of Clinton-Gore '96, started spending large amounts of soft money on "issue ads" that did not expressly endorse one candidate over another, but effectively did. Soon after, the Republicans followed suit.

How could this occur? In 1979 Congress amended the Federal Elections Campaign Act (FECA) to allow parties to spend "soft" money (i.e. money not raised under the FECA's "hard" limits on who could give and how much they could give) for party building activities. Party building included: (a) the distribution of grassroots, pro-party material that did not expressly promote the election of a federal candidate, (b) slate cards, (c) voter registration, (d) administration and overhead. Individuals could contribute unlimited amounts of soft money to party committees, and corporations and unions were not barred from contributing. In 1996 the parties started dedicating massive amounts of soft money to issue ads that were technically defined as party building, and thus not subject to the hard limits of the FECA, but were effectively expressing advocacy for a candidate's election.

The BCRA forbid parties from raising or spending soft money - and thus did away with soft money issue ads. To prevent non-party organizations from doing what the parties had done, the BCRA also implemented the blackout provision.

This is not the first time the Court has reviewed the blackout provision. In 2003's McConnell v. FEC the Court upheld it in principle, ruling that the FEC could prevent outside groups from funding "electioneering communications" with money collected outside the BCRA limitations. Nevertheless, the Court did indicate that "pure" issue ads would be permissible during the blackout dates. It therefore opened the door to a later challenge. Hence, FEC v. Wisconsin Right to Life. The FEC decided that Wisconsin Right to Life's ads were indeed electioneering, and Wisconsin Right to Life argued that they were pure issue ads.

In siding with Wisconsin Right to Life, the Court did not offer a majority opinion as to a justification for the rule. Chief Justice Roberts, joined by Justice Alito, argued for a standard to differentiate between "electioneering communications" and "pure issue ads." Chief Justice Roberts wrote:

Because [Wisconsin Right to Life's] ads may reasonably be interpreted as something other than an appeal to vote for or against a specific candidate, they are not the functional equivalent of express advocacy, and therefore fall outside McConnell's scope. To safeguard freedom of speech on public issues, the proper standard for an as-applied challenge to [the BCRA] must be objective, focusing on the communication's substance rather than on amorphous considerations of intent and effect...[A] court should find that an ad is the functional equivalent of express advocacy only if the ad is susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate. [Wisconsin Right to Life's] three ads are plainly not the functional equivalent of express advocacy under this test.

What the Chief Justice argued for here is seemingly narrow. He does not wish to overturn the blackout provision cited above. Rather, he rejects the FEC's interpretation of it. He holds that so long as one could reasonably interpret an ad as a genuine issue ad, it does not fall prey to the BCRA's definition of electioneering communication. He thus holds the BCRA to be constitutional, but the FEC's interpretation of it to be unconstitutionally broad.

Justices Scalia, Kennedy, and Thomas joined in the ruling with the Chief Justice and Justice Alito. However, they did not join in this opinion. They want the blackout provision overturned altogether.

Thus, the ads are permissible, and the blackout provision is constitutional.

Justices Souter, Stevens, Ginsberg, and Breyer view this as an overturning of the Court's ruling in McConnell, and an effective end to the blackout provision. Justice Souter wrote:

After today, the ban on contributions by corporations and unions and the limitation on their corrosive spending when they enter the political arena are open to easy circumvention, and the possibilities for regulating corporate and union campaign money are unclear. The ban on contributions will mean nothing much, now that companies and unions can save candidates the expense of advertising directly, simply by running "issue ads" without express advocacy, or by funneling the money through an independent corporation like [Wisconsin Right to Life].

Without treading too far into the thorny legal or moral debate, I will say that my intuition is that Justice Souter is being a little hyperbolic. The reason is that the political parties will not be able to participate in this kind of activity. The BCRA ban on soft money has been retained. This will do much to prevent what he fears will happen.

I agree with Souter that the Court has effectively narrowed the BCRA's intended definition of "electioneering communication." I also think that this decision - because it lacks a justification that a majority supports - confuses more than it clarifies. However, to argue that this will once again open the floodgates holding back corporation and union money is to fail to appreciate what induced these organizations to give so much in the past. Their interest in channeling soft money funds to the parties was for access as least as much as it was for electioneering. A big check to the party could get you the ear of a senator if and when you needed it. Will an independently-financed quasi-electioneering ad do the same? I do not think so. I think the latter only influences voters directly, and elected officials indirectly (and I am not sure how much indirect influence it would have over officials - I do not think those "527 organizations" have acquired much influence, despite all of their efforts). Soft money given to parties could influence officials directly.

The key difference is that today, the parties are forbidden from this kind of activity. By locking the parties out of this process - and they still will be locked out - you retain a major impediment to the kind of union- and corporation-driven money that thwarted the old FECA regime. Barring the parties from soft money means impeding corporations and unions from buying access to them. Even if this opens the way for them to participate in electioneering - that is a far cry from what most of us found to be offensive in the wake of the 1996 election. Most of us objected to the direct influence that could be wielded over government officials by massive contributions to their parties.

Where I think this could have an effect is on the role of 527 groups - which in the past have been subjected to the blackout provision. What this might do is allow these groups to engage in their so-called "issue advocacy" further into the campaign season. This is why I agree with the minority that the BCRA has been weakened here, but I do not think it has been weakened by very much. The parties are still barred from receiving soft money, which is what induced this regime in the first place.

But, then again, much depends upon how the FEC deals with this decision. There is no majority-endorsed guideline on how to interpret the blackout rule. All the Court has said here is that the blackout rule does not forbid all ads. If the FEC interprets this ruling narrowly, only a few ads might be aired in the blackout period. In that case, expect to see the Court revisit this issue in the wake of the 2008 cycle.

Posted by Jay Cost at 12:00 AM | Permalink

It appears that the immigration reform bill is not quite dead. In the last few days - as we all know - there was a deal brokered between Senate Democrats and Republicans to regulate the number of amendments to be offered, and to make way for a final cloture vote. Many pundits expect that the Senate shall pass the bill. Then, it shall head to the House - where it is expected to have a difficult time.

Why is it that House members are less inclined toward the bill? The answer, at least in part, can be found in a review of the intentions of the designers of the upper and lower chambers of Congress.

Initially, the Senate was composed of members selected by the legislatures of the respective states to terms of six years. The Framers thought these stipulations would create a body well disposed to serve the nation in certain regards. After all, they empowered the Senate - and only the Senate - to confirm appointments, ratify treaties, and act on articles of impeachment.

In Federalist 63, Madison writes:

The objects of government may be divided into two general classes: the one depending on measures which have singly an immediate and sensible operation; the other depending on a succession of well-chosen and well-connected measures, which have a gradual and perhaps unobserved operation. The importance of the latter description to the collective and permanent welfare of every country needs no operation. And yet it is evident that an assembly elected for so short a term as to be unable to provide more than one or two links in a chain of measures, on which the general welfare may essentially depend, ought not to be answerable for the final result any more than a steward or tenant, engaged for one year, could be justly made to answer for places or improvements which could not be accomplished in less than half a dozen years.

What of the House? It was intentionally designed to be the people's legislature, to represent the articulated interests of the public. Writes Madison in Federalist 58:

[T]he House of Representatives is so constituted as to support in the members an habitual recollection of their dependence on the people. Before the sentiments impressed on their minds by the mode of their elevation can be effaced by the exercise of power, they will be compelled to anticipate the moment when their power is to cease, when their exercise of it is to be reviewed, and when they must descend to the level from which they were raised; there forever to remain unless a faithful discharge of their trust have established their title to a renewal of it.

It is not hard, then, to appreciate why immigration reform is favored in the Senate, but not the House. The Senate was designed to facilitate considerations of public affairs that involve a longer time frame. Senators were set free from the vagaries of public opinion to consider solutions to problems of the long run - even if those sol