Early Scholarly Consensus: The Limits of Regulation

Prior to the enactment of the first comprehensive scheme for the regulation of money in federal elections—the 1974 amendments to the Federal Election Campaign Act (FECA)—a scholarly consensus on campaign-finance regulation prevailed. That consensus was built on the pioneering work of Louise Overacker, Alexander Heard, and Herbert Alexander. Overacker was the first political scientist to engage in systematic empirical research on campaign finance. Her book Money in Elections is based largely on political financing practices in the 1920s.¹

Overacker challenged much of the reformist thinking of her day. She noted that electoral corruption dates back to ancient Greece and observed that, when adjusted for the size of the economy and population, the cost of campaigns had remained fairly constant over the ages—a point rediscovered by political scientists in recent years.² She demonstrated how flawed design and inadequate enforcement mechanisms rendered the Federal Corrupt Practices Act of 1925 ineffective in banning corporate contributions, limiting expenditures, and providing disclosure. She described the dominance of political parties in campaign finance and their increasing reliance on very large donors.

Overacker articulated a normative position on money in elections that would dominate the political-science profession for decades to come. She argued that restrictions on political finance designed to achieve equality among candidates and among voters were ill-conceived. The goal should be not to “start all candidates from scratch” but rather to ensure that “each candidate at least [has] a chance to bring his case before the voters.”³

In contemporary jargon, that means floors but no ceilings for spending. In fact, she asserted, more money is needed to provide citizens with adequate knowledge to inform their votes. Public subsidies can serve that purpose. Trying to equalize spending among candidates through limits, however, does nothing to guarantee that all candidates get their message out. In addition, she argued, contribution limits do not solve the problem of corruption, which can come with donations of any size; they are easily evaded, and there is no scientific basis for determining their size. She noted that historical precedent and comparative experience offered no examples of successful regimes of spending or contribution limits.

In addition to public subsidies, Overacker argued for public disclosure; a nonpolitical permanent enforcement agency with access to the courts; and laws designed to eliminate forced assessments on governmental workers, support from organized crime, corporate contributions, and large fees to election day “workers.”

Almost three decades later, Alexander Heard provided a fresh examination of campaign contributions and expenditures in his landmark book, The Costs of Democracy, based primarily on the record of the 1950s.⁴

While Heard described a pattern of campaigning and political finance that departed in important respects from Overacker's rendering, his broad conclusions and normative position were remarkably similar. Money is not an evil in elections, he said, but an essential component. The cost of campaigns is neither outlandishly high nor rising significantly. More, not less, money is needed in campaigns. Campaign spending does not determine the outcome of elections. Voters, not contributions, drive policy decisions.

In Heard's view, reforms that fail to recognize the inherent financial needs of the electoral system and that smack of unrealistic ethical absolutism are doomed. He argued that “negative regulation” should be supplanted by positive measures to ease the burden of fundraising and lower the cost of campaigns. In addition to abandoning unworkable limits on contributions and expenditures, he advocated public financing (both cash assistance and subsidized communications), tax credits to encourage private donations, neutral and bipartisan solicitation of funds, public disclosure, and an enforcement agency insulated from politics. Heard had an opportunity to promote his ideas as a consultant to the Senate Subcommittee on Privileges and Elections and as chairman of President John F. Kennedy's Commission on Campaign Costs, but these efforts did not bear fruit in the policy arena.

Herbert Alexander, who has devoted his entire academic career to the study of campaign finance, worked closely with Heard as a research fellow on The Costs of Democracy and as executive director of the Commission on Campaign Costs. After completing his dissertation at Yale, in 1958 Alexander became director of the Citizens' Research Foundation, where he compiled and published quadrennial studies of campaign finance. He was the sole source of authoritative campaign-finance data before the FEC disclosure regime mandated by the 1974 law.

Alexander fit comfortably within the intellectual legacy of Overacker and Heard. His priorities were competitive elections, informed voters, and financial transparency. In Money in Politics, he sharply contested the argument of Progressives (and their modern-day incarnations, such as the lobbying group Common Cause) that money plays an inherently corrupting role in elections. He argued that more money is needed for competitive campaigns that inform voters and provide a basis for governmental responsiveness. Spending limits reinforce the status quo and deprive candidates of their free speech rights. Contribution limits produce the same malady of underfunded campaigns and depressed competition by denying citizens their speech rights. He extended this argument beyond Overacker and other political scientists of his generation by opposing the bans on corporate and labor-union electioneering, which were enacted into law in 1907 and 1947, respectively: “There is nothing inherently immoral or corrupting about a corporate or labor dollar, no more than other private dollars.”⁵

He supported a strong system of public disclosure and public subsidies, such as tax credits for private donations; franking privileges for all candidates; and voter registration costs borne by the government. But he was concerned that direct public financing of candidates and parties could weaken the ties between national and state parties and disrupt relations between candidates and their parties.

While Overacker, Heard, and Alexander did not agree on every point, they shared a broad view of money and elections that came to dominate thinking about campaign finance among political scientists for many decades. That view—that more money is needed in campaigns, spending limits protect incumbents and thereby weaken electoral competition, contribution limits are easily evaded, interested money does not corrupt the policy process, effective disclosure can discipline the campaign-finance marketplace, and publicly subsidized spending floors (but not ceilings) will increase competition—continues to hold sway in many academic precincts today.

The Federal Election Campaign Act and Its Aftermath

This scholarly view of money in elections had some resonance in the burst of campaign-finance regulation in the early 1970s, but the motivation for and direction of reform had roots elsewhere. There were two major factors: a substantial increase during the 1960s in the costs of campaigning, especially those associated with media advertising, and the emergence of wealthy, self-financed candidates. Since both developments threatened incumbents, members of Congress began to consider new regulatory initiatives. The Revenue Act of 1971 created a presidential public-financing system funded with an income tax checkoff, but its effective date was delayed until the 1976 election. In 1971 Congress also passed FECA, which strengthened requirements for reporting of financial transactions and repealed existing limits on contributions and expenditures (except for the ban on corporate and labor-union contributions). But it also put in place new limits on the amount candidates could contribute to their own campaigns and on expenditures for media advertising in presidential, Senate, and House elections. Political scientists could take satisfaction in the initial steps toward public subsidies, vastly improved disclosure, and repeal of ineffectual limits on contributions and spending even while looking skeptically on the wisdom and constitutionality of the new limitations.

Scandals associated with Watergate and the committee to reelect President Richard Nixon prompted Congress to return to the campaign-finance drawing board. In 1974 they produced major amendments to FECA, which constituted the most serious and ambitious effort in history to regulate the flow of money in federal elections. One is hard-pressed to detect any politicalscience fingerprints on the new law. Perhaps the most influential outside player in crafting the 1974 amendments was Common Cause, whose rhetoric and reform proposals contrasted starkly with the dominant view of our profession. Congress adopted public financing of presidential elections—matching funds in the nomination phase, full grants in the general elections—but conditioned the public subsidy on acceptance of spending limits. Ceilings, not floors, prevailed. Public financing of congressional elections was defeated in the House. Congress also scrapped the 1971 limits on media advertising but replaced them with an elaborate set of limits on contributions and expenditures. Caps were placed on what individuals, political action committees (PACs), and political parties could contribute to candidates; on the total amount individuals could contribute; and on the amount parties could spend on behalf of their candidates. Limits were also set on spending by congressional campaigns, on the amount of selffinancing by federal candidates, and on what other individuals and groups could spend independently to urge the election or defeat of a candidate. Both sets of restrictions—on contributions and spending—flew in the face of received wisdom within the political-science community. Finally, Congress created a separate agency, the FEC, to administer the disclosure system and to enforce the law. But it designed the new agency to be the very antithesis of the nonpolitical, independent entity espoused by Overacker and Heard. Congress established de facto control over the appointment of the six commissioners, divided equally between the two major parties; required four affirmative votes for any action to be taken; prohibited the agency from investigating anonymous complaints or conducting random audits; imposed elaborate procedural requirements; withheld authority to exact penalties; and denied the commission multiyear budgeting authority enjoyed by other independent agencies.⁶

The FEC was better equipped to discharge its responsibility for the collection and disclosure of data on campaign contributions and expenditures, a development that stimulated much subsequent research by political scientists.

Barely a year after the 1974 amendments to FECA were signed into law, the Supreme Court in Buckley v. Valeo upheld the constitutionality of the contribution limits, the disclosure requirements, and the presidential public-financing system. But it struck down the caps on expenditures (by a candidate's campaign, by a candidate with personal funds, or by others spending independently), except for voluntary limits tied to public financing in presidential elections, and narrowed the class of political communications by independent groups subject to regulation (i.e., disclosure and limits on the source and size of contributions). The Court also ruled that congressional appointment of some members of the FEC was a violation of the separation of powers, a problem quickly remedied in Congress by giving the president the formal authority to appoint all six members. What remained on the statute books was a regulatory residue designed by no one.

FECA after Buckley marked the beginning of the end of a scholarly consensus on the role of money in elections and on the wisdom of various approaches to its regulation. Differences emerged as many new scholars were drawn to the subject matter—by controversy surrounding the Buckley decision, rapid changes in forms of campaigning and political organization, and the availability of systematic data on campaign contributions and expenditures. That is not to say there were no continuities with the consensus prevailing before the 1970s. In his pathbreaking and highly influential work on the impact of money in congressional elections—based largely on data from the 1972, 1974, and 1976 elections—Gary Jacobson provided theoretical and empirical justification for arguments long made by political scientists.⁷

He showed that inadequate funding by challengers, not excessive spending by incumbents, dampens electoral competition. Limits on contributions and expenditures harm challengers more than they do incumbents. The value of publicly subsidized spending floors for challengers would be vitiated if accompanied by spending ceilings determined by incumbents. Jacobson argued that most restrictions on the flow of money enacted by incumbent politicians, including those in the 1974 law, work to the advantage of those in power.

Other scholars cautioned that political parties had been weakened by changes in FECA and were likely to become bit players if not complete bystanders in the financing of federal election campaigns.⁸

Public financing of presidential candidates, they argued, reinforced the growing candidate-centered nature of American elections and further marginalized the party hierarchy. Restrictions on how parties raised their funds and how much they could assist their candidates through direct contributions and coordinated spending put them at a distinct disadvantage relative to the universe of interest groups, whose collective contributions to candidates were unlimited. Contemporary political scientists, like their predecessors, strongly embraced the view that parties are essential instruments of accountability and responsibility in democratic societies. Regulations that constrain their ability to raise and spend funds on behalf of their broad objectives do more harm than good.

Additional continuities were evident in the response of political scientists to elements of the post-Buckley reform agenda championed by Common Cause and other activist groups. Following their rapid growth in the decade after the adoption of the new law and administrative rulings by the FEC, PACs became the demons of choice within the reform community. Endless press releases from Common Cause touted the supposed causal implications of studies linking PAC contributions with votes in Congress. Philip M. Stern wrote The Best Congress Money Can Buy. ⁹

Working well within the tradition of the pioneers of research on money and politics, political scientists produced studies documenting the diversity among PACs in structure, size, objectives, strategies, constraints, and degree of engagement in congressional elections. They examined the opportunities that PACs afforded millions of citizens to engage in organized political action, and the extent to which politicians were the dominant players in their financial exchanges. They also rebutted the simple proposition that campaign contributions buy votes in Congress.¹⁰

Political scientists took part in the new policy debates pretty much as they had in earlier decades—by (1) challenging the accuracy of factual assertions of reformers, (2) questioning the efficacy of negative regulation, (3) warning of the risks associated with the law of unintended consequences, and (4) emphasizing the values of free speech, increased campaign communication, strong parties, a pluralistic interest group environment, and vigorous electoral competition. We fancied ourselves an intellectual truth squad, endowed by our training and research to cut through the cant in the public debate, exposing specious claims and illadvised reform proposals.

Beneath this comfortable posture of professional skepticism, however, a more protean discussion was developing among students of money and politics. The writings of Frank Sorauf provide a window on the emergence of this debate. A respected scholar of political parties and public law, Sorauf began his research on campaign finance in the early 1980s by staffing a task force that investigated the implications of PAC growth for the campaign-finance system. Over the next decade, he produced Money in American Elections¹¹

and Inside Campaign Finance: Myths and Realities,¹² the most comprehensive and nuanced treatments, at that point, of the contemporary campaign-finance system. Much of Sorauf 's work fit comfortably within the professional mainstream. He subjected major elements of the reformist critique of campaign finance—too much money is spent in campaigns, money buys elections, money buys policy decisions—to withering scrutiny. He persuasively rebutted those who took an alarmist view of PACs, and challenged the wisdom of efforts in Congress to abolish or severely constrain them. He documented the many constraints on the flow of money in elections and cautioned about the law of unintended consequences. And he championed the values of electoral competition, strong parties, and robust campaign communications, as well as freedom of political speech, activity, and association.

At the same time, Sorauf took exception to those colleagues who accepted a largely benign view of the role of money in elections. He argued that Congress got most things right in its 1974 amendments to FECA but the Supreme Court erred in Buckley by striking down limits on campaign spending and independent expenditures. In his view, an arms-race dynamic had developed in campaign fundraising, and the money chase was becoming a serious problem. The presidential public-financing system with spending ceilings had been remarkably successful in achieving its objectives. Spending limits set at relatively high levels could help, not hurt, challengers, especially if combined with public subsidies. National parties, taking advantage of more generous limits on their contributors (relative to candidates and PACs) and on coordinated spending on behalf of their candidates, were boosted, not harmed, by FECA. The greater risk now was that they would become instruments of incumbent politicians to evade contribution limits upheld by the Court in the interest of preventing corruption or the appearance of corruption. Leaks in the regulatory fabric—soft money, independent expenditures, bundling—needed patching, not defending.

One need not agree with Sorauf 's judgment about Buckley or endorse the specifics of his approach to reform to appreciate the significance of his arguments for political science. He demonstrated that a sophisticated, empirically based understanding of money in elections did not lead inexorably to a normative rejection of regulation. Serious students of campaign finance discovered fertile ground to plow between the hyperbolic claims of many reform activists and the libertarian embrace of a deregulated political marketplace. Over the past decade, dramatic changes in campaignfinance practice and new scholarship on money and politics have produced lively debates within the profession and raised important questions about knowledge and policy.

The Rise of Soft Money and “Issue Advocacy”

The regulatory regime that emerged after Buckley was a patchwork of rules that contributed to a diverse set of practices, some intended, others not.¹³

Public financing slowed the money chase in presidential elections and contributed to a rough parity between the major parties in campaign spending and competitive opportunities for challengers. Small donors came to play a significant role in campaign finance as very large contributions from individuals and organizations to candidates and parties ceased. Disclosure of contributions and expenditures improved dramatically. Well before the explosion of soft money, political parties took advantage of the new law to become significant players in federal election campaigns.

Other consequences of FECA may not have been intended by policy makers, but they surely could have been anticipated. Setting contribution limits to candidates from political committees five times higher than caps on contributions from individuals, with no aggregate limit on what those committees can contribute, helped fuel the growth of PACs. The streak of pragmatism and concern about access that was so evident (and predictable) in corporate and trade-association PACs in turn contributed to the advantages enjoyed by incumbents. Failure to index contribution limits for inflation spawned an important new role for fundraising brokers and intensified the money chase. And it was no surprise that the Court's banishment of limits on congressional campaign spending, independent expenditures, and self-financing by wealthy candidates quickened that same money chase.

The factors largely responsible for the difficulties of the FECA regime in recent years originated not in legislation passed by Congress but in administrative and judicial rulings. A series of rulings by the FEC provided the legal basis for soft money. National parties were permitted to keep two sets of books—one for federal funds or hard money, subject to limits on the source and size of contributions, and another for nonfederal funds or soft money, not subject to any restrictions on contributions and ostensibly used for purposes other than federal election campaigning.¹⁴

Initially, the national parties used soft money for genuinely nonfederal purposes, which limited the demand for it. Entrepreneurial political consultants and politicians—beginning with Robert Farmer in the 1988 Michael Dukakis presidential campaign and reaching a new level of audaciousness with Dick Morris and Bill Clinton in 1995 and 1996—figured out ways of financing important parts of their federal election campaigns with unregulated funds. Soft-money receipts grew from roughly $20 million in the 1980 and 1984 election cycles to $86 million in 1988 and to $495 million in 2000.

Starting in the 1996 cycle, much of that money was used to finance candidate-specific issue advocacy in presidential and congressional elections. This campaign weapon of choice for parties had its genesis in Buckley. In that decision, the Court established an express advocacy test as a way of narrowing the scope of disclosure requirements and contribution limits for independent expenditures in light of a concern that the language crafted by Congress in the 1974 amendments to FECA was unconstitutionally vague and overbroad.¹⁵

The standard was defined by the Court as communications that “in express terms advocate the election or defeat of a clearly identified candidate for federal office.” In a footnote, the Court offered examples of express advocacy (including such words as vote for, vote against, support, or oppose), and this became known as the “magic words” test.

The Court acknowledged that this standard would leave outside the regulatory arena much communication that was electionrelated. But it concluded that it was better to err on the side of noncoverage and avoid the risk of a vague standard chilling political speech. This express-advocacy standard was constructed to determine which communications by individuals and groups independent of any candidate or party would be subject to regulation. The Court did not require express advocacy in candidate and political-party ads for their financing to be subject to federal campaign-finance laws. Buckley stated that spending by candidates and political committees (including parties) is “by definition, campaign-related.”¹⁶

This express-advocacy standard had little noticeable effect on the conduct and financing of federal campaigns for almost 20 years after it was set by the Court. To open the floodgates, it took the creativity and bravado of Morris and Clinton, and the failure of the FEC to challenge their use of party soft money toward political ads. Starting in the fall of 1995 and continuing through the middle of 1996, Democratic Party committees spent an estimated $34 million on television ads designed to promote Clinton's reelection.¹⁷

None of these costs were charged as coordinated expenditures on behalf of Clinton's campaign. Instead, the Democratic Party argued that party communications not using explicit words advocating the election or defeat of a federal candidate could be treated like generic party advertising and financed with a mix of soft and hard money. The Republican National Committee responded with its own $20 million “issue advocacy” advertising campaign on behalf of its presidential nominee, Bob Dole. Very quickly the parties began to use the same funding strategy to campaign on behalf of their congressional candidates. The congressional party campaign committees shifted their focus from hard to soft money raising.

Outside groups soon followed in their wake. For groups, the advantage of electioneering through “issue advocacy” rather than through FECA “independent expenditures” was that the former could be conducted without disclosure and could be financed with soft (i.e., unregulated) rather than hard money. This meant that groups, like parties, could now solicit contributions from corporations and unions as well as from wealthy donors to finance candidate-specific electioneering communications. Political consultants routinized campaign communications as issue advocacy. In spite of the plain meaning of federal election law, after 1996 parties and groups could campaign for and against specific candidates for federal office with unlimited amounts of unregulated resources.

This was the context in which the latest round of campaignfinance reform was launched, culminating in 2002 with the BCRA. I now turn to the question of whether political science was producing knowledge germane to this debate and then explore how political scientists contributed to policy development.

Usable Knowledge?

A large literature on political financing has been produced in recent decades, and it is growing rapidly. Research on practices in the United States—at federal, state, and local levels—has been complemented by studies of other countries and cross-national comparisons. A thorough review of this literature is beyond the scope of this essay.¹⁸

Here, I will limit myself to sketching out the state of scholarly knowledge on several substantive questions central to the reform debate.

Linking Knowledge and Action

In recent years, political scientists have become much more active participants in debates on campaign-finance reform. Scholars serve as expert witnesses and submit amicus briefs in important court cases. They testify at congressional hearings, brief congressional staff, and advise legislative sponsors and opponents of reform proposals. They issue reports synthesizing research findings and advocating or opposing specific reform proposals. They talk to journalists, write op-eds, participate in public events, and consult with activists and organizations. And they conduct research that bears directly on pending reform proposals. All of these activities were in evidence in the years leading up to passage of the BCRA and in the subsequent court battles over the new law's constitutionality.

One example of this engagement occurred when the Citizens' Research Foundation convened a task force on campaign-finance reform. The task force produced a 1997 report entitled “New Realities, New Thinking.”⁵⁶

Nine political scientists under the chairmanship of Herbert Alexander produced unanimous support for 36 of the 39 recommendations in the report. The report takes exception to much of the reformist rhetoric and policy proposals but also acknowledges the problematic nature of many of the new developments in campaign-finance practice. In light of Alexander's early prominence as a critic of contribution and spending limits, it is striking that the report endorses a ban on soft money, a prohibition on corporate and union treasury financing of issue advocacy, and a retention of spending limits associated with the presidential public-financing system. At the same time, it balances these restrictive measures with recommendations to increase the flow of money, including increased contribution limits, elimination of limits on party coordinated spending, and partial public financing of congressional elections.

Several other efforts were launched during this period to bring political scientists together to diagnose the most pressing problems in the campaign-finance arena and to propose a new reform agenda—but with more active engagement in the policy process. In 1995 I assembled, via the Internet, the Brookings Working Group on Campaign Finance Reform to follow the congressional debate and evaluate the version of the McCain-Feingold bill then under consideration. A diverse group of scholars reached overwhelming agreement that this approach to reform—characterized by new limits on fundraising (from PACs and out-of-state contributors) and on spending in congressional races—was ill-advised and unworkable. Our conversation, available on the Brookings Web site, was monitored by congressional staff, reform advocates, and journalists.⁵⁷

That version of the bill was subsequently jettisoned.

Following the 1996 elections, Norman Ornstein convened a small group of political scientists (Anthony Corrado, Michael Malbin, and me, plus former journalist Paul Taylor) to assess the wreckage to the regulatory regime and to hammer out a reform agenda that dealt with the most critical problems and had some political viability. We produced a report entitled “Reforming Campaign Finance” that endorsed a ban on party soft money tied to an increase in hard-money limits, regulation of candidatespecific issue advocacy near an election, strengthened enforcement, free broadcast time, and tax credits for small donors.⁵⁸

This package was endorsed and championed by the League of Women Voters under the title “Five Ideas for Practical Campaign Reform” in a national advertising campaign and in scores of meetings around the country. Collaboration with the League was a critical step in persuading the broader reform community to reconsider its traditional campaign-finance agenda and embrace a more incremental strategy.

At the same time, we participated in a series of meetings with the principal sponsors of previous legislation (Senators John McCain and Russ Feingold, and Representatives Chris Shays and Martin Meehan), with a bipartisan group of House freshmen interested in forging their own legislation, and with other members of the House and Senate seeking to play a constructive role in moving the issue forward. We made the case for a new reform agenda in the public arena—through op-eds, television appearances, discussions with editorial boards, and speeches in Washington, D.C., and around the country.

Our efforts were rewarded when Senators McCain and Feingold introduced a drastically revised bill built around the first two elements of our package: soft money and issue advocacy. Later, at the invitation of Senator Olympia Snowe, we worked with several legal experts to give the issue-advocacy proposal the strongest possible constitutional standing. The result was the Snowe-Jeffords amendment, which helped increase support for McCain-Feingold in the Senate and became a central part of the version that became law in 2002.⁵⁹

Throughout the tortuous journey between the reintroduction of the legislation in 1998 and the bill's passage in 2002, we remained actively and visibly engaged in the policy debate.

Research (conducted primarily by Corrado, Goldstein, Krasno, and Magleby, and discussed above) on party soft money and issue-ad electioneering was critical to congressional proponents of BCRA. This work was featured prominently in the congressional debate and provided much of the evidentiary basis for the passage and constitutional defense of the new law.

This experience was unusual, our involvement idiosyncratic. In a move to institutionalize that experience, Michael Malbin launched the Campaign Finance Institute. Its purpose is to bring objective scholarly research on campaign finance to bear on important policy questions, in a deliberative, politically neutral, and policy-connected setting.⁶⁰

More than a dozen political scientists are serving as trustees or academic advisers to the institute. Interesting reports have been released on the impact of higher contribution limits on fundraising by challengers, problems of disclosure in an era of issue advocacy campaigning, political parties under McCain-Feingold, and interest group adaptations to the new world of campaign finance. The institute recently established a new task force to deal with the serious problems confronting the public-financing system for presidential nominations.

In conclusion, these efforts by political scientists to draw on scholarly knowledge to shape the public debate on campaign finance and specific reform initiatives should not be taken as a sign of professional consensus. As was clear in my review of the research, substantial disagreements about political financing remain. And many critical policy questions have not been seriously addressed by the research community, forcing scholars, like politicians and activists, to rely on a mix of educated guesswork and a bit of ideology in judging various reforms.

Political scientists often find themselves on opposing sides of campaign-finance cases in court, including the two most recent ones before the Supreme Court: Nixon v. Shrink Missouri Government PAC and FEC v. Colorado Republican Federal Campaign Committee. Both opinions—the first defending contribution limits, the second upholding limits on party coordinated spending—cited arguments and evidence provided by political scientists. Dueling teams of political scientists are featured in the litigation challenging the constitutionality of the new campaignfinance law.⁶¹

Political scientists—some with pride, others with annoyance—see their works used as ammunition by advocates in the campaign-finance wars. Bradley Smith on the right and Kathleen Sullivan on the left have cited political-science literature to buttress their cases for deregulating campaign finance.⁶² Profound differences can be found within single departments of political scientists. One generation of Berkeley graduate students—including David Magleby, Jonathan Krasno, and Donald Green—has produced important, policy-relevant research that is being used by supporters of the new campaign-finance law. A faculty adviser, Raymond Wolfinger, has joined them in amicus briefs and public statements supporting this broad approach to campaign-finance regulation. A newer generation of Berkeley graduate students— working with Bruce Cain and Nelson Polsby, and including Raymond La Raja, Todd Lochner, and Justin Buchler—is producing a body of scholarship that is embraced by opponents of the BCRA.

In one sense, we should be neither surprised nor dismayed by these disagreements among political scientists. The law journals are filled with competing analyses and arguments about campaignfinance regulation. And economists have long demonstrated that impressive scholarly credentials are no guarantee of consensus on the most basic questions of public policy. If Martin Feldstein and Paul Krugman can hold such profoundly different views of the economic and fiscal impacts of Bill Clinton's marginal tax increase and George W. Bush's tax cut, we should not be overly concerned when Nelson Polsby⁶³

and Frank Sorauf reach sharply divergent conclusions about the efficacy of campaign-finance regulation.

Moreover, there is more agreement among political scientists than there might appear to be. Political scientists who have advocated and defended a ban on party soft money and the regulation of electioneering under the guise of issue advocacy retain a professional appreciation of the limits of reform. That legacy of Overacker, Heard, and Alexander is very much evident among supporters as well as opponents of the BCRA.

Indeed, on the basis of our scholarly research, I believe we can agree on a number of important matters. First, the most recent regime for regulating campaign finance collapsed in the aftermath of the 1996 election. It encouraged political actors to speak and act in a way that fostered a widespread disrespect for the rule of law and corroded the legitimacy of our democracy. The status quo ante pre-BCRA is simply unacceptable. How best to change that system is properly a matter of dispute. Some counsel repairing the regulatory system, others removing the limits that precipitated the regulatory end runs.

Second, the new law is a relatively modest, incremental undertaking, not a revolution in campaign-finance regulation. Its major provisions would leave the system to operate largely as it did early in the 1980s. It is designed to repair the most egregious tears in the regulatory fabric, not to chart a new course or to remove freedoms long enjoyed by citizens and organizations. It is best viewed as a prerequisite for other changes (including free air time and public subsidies) to increase competition and ease the burdens of fundraising, not as a comprehensive reform package. Some political scientists believe that it is unwise, unworkable, and even unconstitutional. But they cannot reasonably conclude that it is revolutionary.

Third, the alternatives to the BCRA approach have their own problems. Those advocating full public financing of elections (and the abolition of virtually all private financing)⁶⁴

must perforce grapple with the same issues of soft money and issue advocacy that have undermined the full public financing of presidential elections. Those who advocate removing limits on contributions and expenditures and relying exclusively on disclosure face their own daunting obstacles. This requires the repeal of laws on the books for up to a century, or else a reversal of Buckley and its progeny at the very time the public and policy makers are demanding new regulations on corporate accountability. A return to a state of nature in campaign finance, in which major economic interests can give unlimited sums to competing candidates and parties, is not self-evidently susceptible to policing by voters in a political marketplace. And given the emergence of electioneering as issue advocacy, it would either produce only partial disclosure or require some version of the new law's provisions governing disclosure now vigorously opposed by champions of deregulation.

Finally, political scientists of all stripes recognize that regulating the flow of money in elections is hard work that often leaves reformers with unfulfilled objectives and undesired consequences. Ensuring that adequate resources are available for a free flow of information among citizens, groups, candidates, and parties is essential to healthy elections, yet the manner in which that money is raised and spent can undermine democratic politics. Tensions between economic inequality and political equality are inevitable. First Amendment guarantees properly limit the reach of regulators. Efforts to limit corruption and to achieve greater equality can inadvertently reduce electoral competition. Political money is fungible, and legal constraints on its flow will divert some through other, possibly less accountable, passageways. Politicians and interest groups will exploit the weaknesses of the regulatory fabric to advance their interests.

Political science advocates of the BCRA recognize fully the imperfections of the new law and the ways in which political actors will adapt to its restrictions. For us, the question is how best to respond to troublesome developments in campaign finance without making matters worse. The problems associated with political financing can never be solved, only managed as well as possible in light of these constraints and other, sometimes competing, goals for the political system. Political scientists can contribute to this ongoing process of reform, maintenance, and repair—at all levels of government in the United States and in sister democracies around the world grappling with many of the same problems—through rigorous thinking, relevant research, and judicious engagement in the public and policy arena. We have begun to do so.