Forty Years After Watergate: The Decades-Long Fight Against Political Money
This summer, as we mark the 40th anniversary of the Watergate break-in, which precipitated modern efforts to respond to the dangers of unfettered political spending, we should ask why our political system is more awash than ever in secret money. Much of the answer lies in the interaction between Supreme Court decisions and post-Watergate reforms.
In the wake of the scandal, the 1974 amendments to the Federal Election Campaign Act (FECA) sought to limit both political contributions and expenditures. But in its foundational decision in Buckley v. Valeo (1976), a challenge to the FECA amendments, the Supreme Court drew a sharp distinction between these two forms of political spending. It upheld stringent limits on contributions to other people’s campaigns, on the theory that these limits mark a reasonable response to the potential for quid pro quo corruption or the appearance of corruption. But it refused to limit political expenditures, on the theory that “the First Amendment denies government the power to determine that spending to promote one’s political views is wasteful, excessive, or unwise.”
In drawing this distinction, the Court created a statute that no sensible legislature would have passed. Buckley accelerated two unhealthy trends in American politics.
First, it gave a decided advantage to rich candidates: they could spend unlimited amounts of their own money while their opponents had to raise it in relatively small increments. The Roberts Court exacerbated this problem with its 2011 decision in Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett (a case whose name sounds like nothing so much as a winner at the Westminster Kennel Club’s dog show). There, the Court held that the First Amendment bars states from providing additional funds to equalize the playing field for candidates who agree to forgo private contributions and accept public financing.
Second, because Buckley protected candidates’ right to spend however much they can raise while limiting how they can raise it, the decision forced candidates to devote ever-increasing attention to fundraising at the expense of other activities, such as doing their jobs. In 2010, when the average campaign for a House seat cost $1.16 million, members of Congress had to raise about $66 every hour of every day during their two-year terms. The framers’ idea that frequent elections would make the House responsive to the people was turned on its head: frequent elections now render members of the House particularly dependent on special interest groups that can help them raise large amounts of money.