In a series of decisions on campaign finance legislation, the Roberts Court has made it clear that Congress cannot solve the enduring political issues of undue or unequal influence in politics by restricting speech. Now that legislatures are aware this option is no longer on the table, they are under more pressure to find other solutions. Importantly, Congress could constrain undue influence by legislating through rules of general applicability.
Under a regime of generality, Congress would disable itself from handing out money, lucrative projects, or regulatory relief to designated individuals or small groups. Such strictures would make corruption less likely and indeed eliminate the kind of influence which seems most undue. Decisions that that can be framed in terms of general rules are more likely to be aimed at the public good than at the provision of favors.
In fact, Congress recently moved toward legislating through general rules by eliminating earmarks. Earmarks are the practice by which individual members of Congress target appropriations for their own district outside of any competitive process or other neutral criteria. A longstanding complaint is that earmarks—a kind of pork barrel politics—add to the budget deficit and give a green light to inefficient projects, such as the infamous Bridge to Nowhere, for which the costs far exceed the benefits to the nation as a whole.
The Citizens United case sparked renewed criticism of earmarks because of the fear that companies would spend money on elections in the hopes of obtaining an earmark for a project that would benefit them. The Roberts Court’s protection of political speech happily encourages those interested in good governance to find allies who want more fiscal responsibility rather than less political debate.
Congress could further constrain undue influence by committing itself to general rules in regulatory as well as fiscal legislation. The ban on earmarks does not prevent members of Congress from providing direct regulatory relief to individual companies. Reform may have to await some scandal about a member of Congress directing regulatory relief to a supporter. But when a scandal arises, that kind of rule-based reform is more likely now that the Court has prevented Congress from doing what it has done in the past– ratcheting up restrictions on campaign donations and expenditures.
Legislating through general rules would have benefits beyond restricting undue influence. Many political philosophers, including Fredriech Hayek, have endorsed legislating by general rules. They make planning easier by making law more predictable and provide greater assurance to the public that law is based on reason rather than on caprice. And unlike restrictions on electoral campaigning, bans on earmarks and regulatory relief have the virtue of not protecting incumbents from electoral competition. Indeed they are likely to deprive incumbents of some advantages Because the ability to gain earmarks and provide regulatory relief increases with seniority, earmarking gives voters reason to support incumbents, whatever their policy positions.
The way to make politics more honest is to constrain the actions of legislators, not the speech of citizens.