I would like to pursue Rick Hasen’s remarks on independent spending. He argues that independent spending can be corrupting. Consider the implication of his claim. Some independent spending funds ads calling for the election or defeat of a candidate for federal office. If such spending can corrupt, Congress can regulate it. Do we really want Congress to have such power over a kind of speech that directly threatens its most vulnerable members? Moreover, should we rely on Congress to make the determination that such spending can corrupt the legislature? The incentives for self-dealing by Congress seem especially strong regarding this type of spending. Perhaps Hasen may believe the virtue of members will overcome temptation, and Congress will use newly acquired power over independent spending to root out corruption. I take the side of temptation over virtue in this case and predict Congress would root out challengers. For that reason, I believe the Court’s view that independent spending cannot corrupt should not be thought of as an empirically contingent claim. It should rather be seen as a high wall limiting congressional power over spending on speech. Without that wall, Congress could regulate any criticism that might matter during an election season. With it, vital political speech will be beyond their grasp.
We have largely overlooked Bruce Cain’s proposal that the government collect but not disclose information on spending. This proposal answers Hasen’s concern about detecting corruption.
As noted earlier, Cain’s proposal would be open to the possibility of government abuse. However, if we put aside the possibility of prosecutorial abuse, what would be the danger? Someone leaks information about spending to the press. Government officials note who funds their opponents and retaliate. That danger would also exist with disclosure of independent spending. Even if under Cain’s innovation all major independent spenders were revealed in stories in the New York Times — a rather likely outcome I think — they would be no worse off than they would be if all independent spending were disclosed. Voters, meanwhile, would have some information they might want, whatever I might think about them wanting it.
Meanwhile, as our debate unfolds, politics is moving on. The New York Times reported November 23 that Democrats have begun raising money to support “outside groups” in 2012. Anonymity, the Times says, will make that task easier. If the Democrats do well with such fundraising, partisanship will leave mandated disclosure of independent spending with few friends on Capitol Hill. For now, politics is no longer the friend of campaign finance regulation.