By Edward Zelinsky
I live in Connecticut. The Nutmeg State’s 2010 election campaign is a prime example of the emerging domination of American politics by self-funding multimillionaires. This troubling trend has been exacerbated by what is euphemistically called campaign finance reform. The law of unintended consequences strikes again. There is, I suggest, a better way.
Former Connecticut congressman Rob Simmons had been the front-runner for the GOP nomination for the U.S. Senate until Linda McMahon declared her candidacy. Mrs. McMahon has never held public office. She is, however, along with her husband Vince, a founder of World Wrestling Entertainment (WWE) and a multimillionaire. Having spent so far over $20 million of her own money on her campaign, Mrs. McMahon is now favored to win the primary for the Republican nomination for the U.S. Senate.
A similar story is playing out in the contest for the Democratic nomination for Governor of Connecticut. The polls indicate that the front-runner for the Democratic nomination is Edward (“Ned”) Lamont. Like Mrs. McMahon, Mr. Lamont is a multimillionaire, the great-grandson of the legendary J.P. Morgan partner, Thomas W. Lamont. In 2006, Mr. Lamont spent roughly $14 million of his own money to defeat incumbent Joseph I. Lieberman for the Democratic nomination for the U.S. Senate. Mr. Lamont has to date spent almost $2 million of his fortune on his 2010 gubernatorial campaign.
Current polls also indicate that another multimillionaire self-funding his campaign leads in the race for the Republican nomination for Governor. Thomas C. Foley, the former U.S. ambassador to Ireland, outpaces Lt. Gov. Michael Fedele (who is participating in Connecticut’s program of publicly-subsidized campaign finance) and businessman Nelson (“Oz”) Griebel (who is not).
What is occurring in Connecticut is emblematic of broader, nationwide trends. It may well be that Mrs. McMahon, Mr. Lamont and Ambassador Foley are qualified to hold the offices they seek. There is, however, no doubt that their currently strong positions are principally attributable to the personal funds they have deployed to advance their respective candidacies.
Of course, the candidate who spends the most doesn’t always win. In earlier ages wealthy individuals were politically prominent. George Washington and Ben Franklin were both wealthy men. The U.S. Senate was a millionaires’ club at the end of the 19th century – as it is again today.
Nevertheless, the contemporary political dominance of self-funding millionaires in Connecticut and in other states is disquieting. Moreover, this trend is exacerbated by the very campaign finance “reforms” intended to reduce the impact of money on our political life. This is the law of unintended consequences striking with vengeance.
Consider, for example, former Stamford Mayor Dan Malloy, Mr. Lamont’s chief competitor for Connecticut’s gubernatorial nomination, and Lt. Gov. Fedele, Ambassador Foley’s main rival on the Republican side. Both Mayor Malloy and Lt. Gov. Fedele have accepted financing from Connecticut’s system of campaign finance. However, the price of that financing is that neither Fedele nor Malloy can raise or spend additional funds. Their public assistance is thus a ceiling which they cannot exceed even as their self-funded opponents can deploy their private fortunes without limit.
In effect, the Connecticut system deems it corruption for a Malloy or Fedele supporter to contribute a single dollar to their publicly-financed campaigns, while Lamont and Foley are free to spend their own money without limit. This formula virtually begs ambitious multimillionaires to outspend their publicly-financed opponents who are restricted to the expenditure of their state assistance. Moreover, this formula forces nonwealthy candidates like Malloy and Fedele to accept public finance assistance as a ceiling on their campaign outlays or to raise funds from scratch by foregoing such assistance.
Alternatively, consider the Connecticut campaign for the U.S. Senate. Mrs. McMahon pledges to spend $50 million of her personal fortune to pursue her candidacy. The Democratic nominee, Connecticut Attorney General Richard Blumenthal, currently leads in the polls but can expect an expensive McMahon media onslaught once the general election campaign commences.
Under federal law, an individual supporting Blumenthal can contribute a maximum of $2,400 to his campaign. There is no little irony in a system of campaign finance “reform” which forbids a citizen from contributing $2,401 to a candidate of his choice while a self-funding millionaire can expend unlimited personal resources in the pursuit of political office. The former is deemed corruption of the political process while the latter is quickly becoming the norm.
Some suggest that we limit the ability of wealthy individuals to fund their own campaigns. However, the Supreme Court has held that, under the U.S. Constitution, the government can neither prevent someone from spending his own money to advance his own campaign nor penalize such self-funding by increasing the contribution limits of his opponent’s supporters.
Conservatives tend to favor the elimination of campaign contribution limits. Liberals tend to support public financing of campaigns. A sensible response to our present quandary should combine both approaches along the following lines:
1) Give all qualifying candidates public financing as a floor, not a ceiling.
2) In addition to this base level of public campaign financing, permit all candidates to receive unlimited contributions including their own funds.
3) Insist on full and immediate disclosure of all contributions and expenditures. In an age of modern technology, campaign finances should be continuously disclosed on easily-monitored websites.
4) Impose serious penalties for the failure to properly and completely disclose contributions including the forfeiture of office.
Under this system, self-funding millionaires would still have a substantial advantage in seeking public office. However, their opponents would be guaranteed a base level of campaign financing and would no longer be hobbled by their inability to raise additional funds from their respective supporters. The public would have continuous and immediate information as to who is financing candidates’ campaigns.
Most importantly, millionaire candidates would more likely have to win election to public office on their merits.
Edward A. Zelinsky is the Morris and Annie Trachman Professor of Law at the Benjamin N. Cardozo School of Law of Yeshiva University. He is the author of The Origins of the Ownership Society: How The Defined Contribution Paradigm Changed America.