Nothing changes government like a crisis. Think of the recent congressional ceilings and cliffs, or a bit further back to the post-9/11 USA Patriot Act and the Authorization for Use of Military Force. Crises reshape how America treats its citizens, and how it behaves in the world.
The Watergate break-in sparked outrage — and led to change. (UPI Photo)But governing by crisis isn’t anything new. The practice dates back centuries, and it has helped shape a broad range of American policy. As Robert E. Mutch writes in his exhaustive new history of money in politics, Buying the Vote (Oxford University Press, 2014),crisis helped mold America’s campaign finance system. And for more reform to happen, our political system may need another crisis to come along.
Mutch argues that a good scandal needs three components. First, the practice at the root of the scandal must be something that the public finds improper, whether or not it is explicitly illegal. Second, people engaged in the practice must try to hide it. Third, those people must then be found out, causing, Mutch writes, “an outraged public to demand that Congress ‘do something.’ “
In Mutch’s telling, two cycles of scandal have shaped campaign finance reform. The first was kick-started in 1905 when the head of the insurance firm New York Life admitted to Congress that his corporation had given a $48,702.50 check to the Republican National Committee for the previous year’s election. On the heels of that came the revelation in 1907 that railroad tycoon E.H. Harriman had raised $250,000 at the request of Teddy Roosevelt for his 1904 campaign.
The result: a seriously scandalized public and, ultimately, campaign finance legislation. The Tillman Act, passed in 1907, barred corporate contributions in elections, while the Federal Corrupt Practices Act (also known as the Publicity Act) of 1910 required the disclosure of campaign funds.
In the 1970s, a second scandal cycle would contain all of these elements and then some. Mutch posits that the revelation that Richard Nixon’s Committee to Reelect the President was hiding illegal campaign contributions wouldn’t have led to a landscape-changing scandal if not for its connection to the Watergate break-in. But the confluence of misconduct resulted in the most wide-ranging piece of campaign finance reform legislation the country had ever seen.
The Federal Elections Campaign Act amendments of 1974 expanded disclosure requirements, strengthened contribution and expenditure limits, and gave rise to the Federal Election Commission. Unfortunately for reformers, the law ran into the Supreme Court, which in 1976 knocked down its expenditure limits in Buckley v. Valeo — a decision that gave us the dictum that money is equal to speech under the First Amendment.
That wasn’t the end of this scandal cycle, though. Mutch caps it off with the Bipartisan Campaign Reform Act of 2002, also known as McCain-Feingold. The law was an outgrowth of public frustration over the increasing amount of “soft money” in the 1996 and 2000 presidential campaigns — but public anger really took off only when the Enron scandal revealed just how much soft money business executives were funneling into elections. (In Citizens United, the Supreme Court would later eviscerate these reforms.)
Today, the suspect use of super PACs — which aren’t supposed to coordinate with political candidates but often appear to cross that line — would seem to meet many of Mutch’s requirements for scandal. What’s lacking, however, is the kind of public outrage that accompanied Watergate or the turn-of-the-century episodes. Sure, it could happen. But after years of declining faith in government, it’s hard to see what could once again startle Americans into bringing out the campaign finance pitchforks.
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