I’m pleased to welcome Bob Bauer to the ELB Book Corner, writing about his new book, The Unraveling. Here is the second of three guest posts:

One chapter of the Unraveling is devoted to my long-standing view that the standard reform arguments for extensive federal campaign finance regulation are misguided. Much of the reform case rests on dated or skewed assumptions about how the political process operates. Too little account is taken of the dismal experience with the efficacy and cost of complex rules. In the end, key recurring issues of money-in-politics require holding political actors accountable for their ethical choices.

It is important, first, to picture as clearly as possible the motives of the most influential financiers of the political system. Many are not interested in putting their campaign spending to use in buying policies for their own benefit. They pursue ideological commitments and party preferences:  they look to be in on the action. This was true in the past, as in the role that big money played in the challenges to Lyndon Johnson’s and George W. Bush’s reelection campaigns. It is true today in both parties. Consider, most recently, the role of those major donors who pushed hard for President Biden to withdraw from the ticket, pledging to withhold any further funding unless he did so. 

Those who have narrower policy objectives, such as major industries or companies experienced in federal legislative affairs, generally have modest appetites for campaign spending. It can be political messy and functionally inefficient:  lobbying is often the far better route to the achievement of their goals.

What about politicians on the other end of these relationships, who have to raise money and risk potentially trading policy commitments for cash? It has become clear that the outright bribe as a problem is less common than the advantage of money in achieving “access.” This is complicated, because those who support a candidate or party may reasonably expect recognition— calls returned, requests for appointments granted. The Roberts Court has given a measure of constitutional protection to this politics of “access.”

The law struggles with defining and enforcing the line between the gaining “access” and sale of office. The answers, which can never be wholly clear or satisfactory, lie in ethical politics.  Years ago, in his book, Ethics in Government, Paul Douglas offered the example of a “decent interval” a politician should observe between casting a vote and proceeding to raise money off of it. In the famous “Keating Five” case, the Senate Ethics Committee censured one United States Senator who, it found, “linked” to an impermissible degree fundraising and the conduct of his office. The best politicians—the most ethical— try to avoid doing this, and many do a decent job of it.

I note in the book the time and effort federal campaigns and their lawyers put into “vetting” their donors. The vetting standards established by politicians are a meaningful measure of ethical self-definition. The law may allow them to take certain money; they may—and in particular cases, should— decide not to do so. The public can then evaluate the choice they make.

My views annoyed some Democrats but also sparked clashes with the late Senator and campaign finance reformer John McCain. He urged my party to fire me. He even suggested that I was motivated by the legal fees I earned. That was a bit much. I support reasonable campaign contribution limits, source restrictions, and disclosure requirements, but history shows that expectations of what the law can and should do are appropriately modest. On the really hard questions, we must hold politicians and parties accountable for choices beyond the reach of law but squarely within the domain of ethics.