Time to Re-write NJ Campaign Finance Laws

Yesterday’s primary elections offer more proof that New Jersey’s experiment to remove money from politics has failed.  Once again, millions of dollars were spent on elections and the public had no idea who contributed the money.

The premises of New Jersey’s campaign finance scheme is that (1) money corrupts; and, (2) it is possible to take money out of politics  Both premises are wrong.

It is certainly possible that money can corrupt, but there are actively enforced criminal laws that deter it.  There is no need to infer a quid pro quo with a form requiring every business that contributes money to political campaigns to show on the first page how much money was contributed and how much money was made from public contracts.  The form itself infers a quid pro quo.

The premise that it is possible to take money out of politics is even more wrong then the premise that money corrupts.  New Jersey’s attempt at social engineering may have sounded good when the legislation was introduced, but the election history of the last decade, especially the last round of elections demonstrate that it is impossible to remove money from politics.

Money has played a significant role in politics in the United States beginning with the very first elections. In the late 1700s, only white male landowners over the age of 21 years were allowed to vote. In other words, the men had to have some wealth in order to be eligible to vote. The land ownership requirement was largely eliminated by 1828, when states were afforded the power to grant voting rights.

In 1828, Andrew Jackson was one of the first politicians to use a campaign staff to assist with fundraising and efforts to secure votes. He organized rallies and parades as tools for disseminating his message to the voters. As a result, the voter turnout was double that of prior elections. Taking a different tactic, Abraham Lincoln used his own money to fund his campaign, a plan that nearly bankrupted him.

It soon became obvious to wealthy individuals that they could significantly benefit by financially supporting politicians. Families such as the Astors and Vanderbilts actively participated in early politics. Shortly thereafter, the first federal campaign finance laws were passed.

The U. S. Supreme Court’s ruling several months ago in McCutcheon, et al. v. Federal Election Commission held that it is unconstitutional to limit the aggregate amount of money an individual can contribute to political campaigns.

Prior to McCutcheon, an individual was permitted to donate an aggregate of $123,200, which included $48,600 to candidates and $74,600 to political party committees during each two-year cycle. The McCutcheon ruling lifts the cap on the aggregate donation amount, allowing a donor to give millions of dollars to political candidates and committees.

Limiting donations from individuals is not reform as long contributors can give elsewhere. Unless the public is prepared to finance political campaigns with tax money, there will always be a need for private people to give money to help a candidate get elected.  Therefore, it is more important for the public to identify the contributors to a candidate than to create limits while allowing other committees to accept contributions from the same contributors and spend that money to help the same candidate.

Donald Scarinci is a managing partner at Lyndhurst, N.J. based law firm Scarinci Hollenbeck.  He is also the editor of the Constitutional Law Reporter and Government and Law blogs

Time to Re-write NJ Campaign Finance Laws