Congress Shall Make No Law...
August
4
7:02 PM
Want Competitive Elections? Another Unconstitutional Campaign Finance Law Won’t Help.

Dave Weigel of Slate reports on a newly introduced bill by freshman Rep. Rob Woodall (R-Ga.) called the Competitive Elections Act of 2011.  The bill would prohibit candidates from saving contributions they receive in one election for use in a future election.  The goal of the law is help new candidates compete against incumbents by removing the ability of incumbents to amass “war chests.”

 

Weigel predicts that the legislation is doomed and we think he’s right about that—incumbent politicians generally aren’t interested in passing laws that eliminate the advantages of incumbency. But the law is also clearly unconstitutional.  First, it imposes a limit on political spending purely for the purpose of leveling the electoral playing field, which the U.S. Supreme Court has repeatedly said is forbidden.  Second, the law has an exemption for candidates who are facing self-funded opponents, just like the Millionaire’s Amendment provision of McCain-Feingold, which the Court held unconstitutional in Davis v. FEC.

 

But the Competitive Elections Act of 2011 isn’t just politically infeasible and unconstitutional:  It is yet another example of how every campaign finance regulation eventually becomes a justification for more regulation.  The problem the law attempts to solve—the inability of challengers to unseat entrenched incumbents—is itself a symptom of our country’s dysfunctional campaign finance laws.  Upstart candidates rarely have a broad base of electoral support.  By capping the size of contributions they may receive, federal campaign finance law all but ensures that they will not be able to raise the money necessary to effectively compete against incumbent politicians.

 

The straightforward solution to that problem—and the solution that is consistent with the First Amendment—is to remove the caps, not to add another unnecessary, unworkable, and unconstitutional layer of regulation.