No Bailouts for Incumbents

SCOTUS is reviewing a law which would provide matching funds for less well-funded candidates. But would this level the playing field or just boost incumbents?

The Supreme Court in McComish v. Bennett and a companion case, is addressing an Arizona law that attempts to “equalize” speech in political campaigns.

The Arizona law is in many ways a state analog to a scheme struck down in Davis v. Federal Election Commission. The “problem” being addressed is the advantage that well-funded candidates have over less well-funded candidates.  The law at issue would boost public spending for one side if the other side spent more of its own money.  The idea is that rich people have an advantage over poor ones in running for office.

In actuality this acts as an incumbent protection scheme.  Incumbents live in fear of a well-funded rich candidate running against them.  They have built-in name recognition and political networks that a challenger normally does not.  In fact, it’s a good idea whenever reviewing a campaign finance law to look at it as a conspiracy to weaken non-incumbent challengers.  That is what they almost always turn out to be because of who is actually passing them.

Now, from one kind of conservative standpoint this promotes stability as it impedes elective turnover.  From a First Amendment standpoint it has some problems.  Why should anyone be taxed to fund a candidate and speech he disagrees with?  To tax Keith Olbermann to fund Patrick Buchanan’s campaign, and to tax Rush Limbaugh to fund Al Sharpton’s campaigns is unjust.

Second, the First Amendment does not contemplate the government making an even playing field for ideas.  In fact, this would put government in the position of assuming all ideas and candidates are equally good.  This is the exact opposite of  Brandeis’s First Amendment theory that good ideas will have more support in a free marketplace of ideas than bad ones.  There should be no subsidy for bad ideas.

Nor can this be taken as a preference by this Court for the rich.  Back in the 1970s in Buckley v. Valeo the Burger Court ruled that the government could not prevent a man from spending his own money on his own campaign.  The present court makes speech by others on behalf of a candidate possible and unregulated.  Good candidates can attract such support.  After all how did a little know first term Senator attract enough money to overthrow the Clinton dynasty?

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