Tuesday night’s Republican Senate runoff election proved once again how rolling back restrictive campaign finance regulations helps — not hinders — competitive democracy. In a post-Citizens United world, grassroots challengers finally have the resources to compete. Elections are more competitive when anti-free speech campaign finance law is rolled back. The numbers speak for themselves.
There is always a powerful advantage incumbency has in reelection to public office, but campaign finance laws have significantly increased that advantage. Prior to the enactment of such laws in the latter part of the 20th century, elections to Congress were significantly more competitive than they have been since. In the post-Citizens United world, congressional race reelection rates have trended back, on average, toward pre-campaign finance reform levels.
First, here’s a look at a brief history of campaign finance reform law. Then we’ll look at how that law affected congressional elections.
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The Federal Election Campaign Act (FECA) was signed into law by President Richard Nixon in 1972. It originally required candidates to disclose donations, limited spending, and limited the amount that candidates and their families could self-finance. In 1974, in the wake of Watergate, and other 1972 election scandals, the law was further strengthened. The Supreme Court decided in Buckley v. Valeo in 1976 that some of the law was unconstitutional but allowed other parts of the law to stand.
In 2002, Sen. John McCain, R. Ariz., and Sen. Russ Feingold, D. Wis., introduced the Bipartisan Campaign Finance Reform Act (BCRA), which was signed into law by President George W. Bush in 2002.
In 2010, a significant part of campaign finance law — the restrictions on corporations, and other organizations, being able to spend on elections independently of political candidates — were ruled unconstitutional. In that Citizens United v. FEC decision, the Supreme Court ruled that those restrictions violated the First Amendment.
With draconian restrictions on speech limited, the ability of incumbents to rely on campaign finance laws to keep opponents at bay was smashed. There’s a reason those who want to restore First Amendment political rights call campaign finance laws “incumbent protection acts.” The data conclusively back up that assertion.
Data compiled by the Brookings Institution and the University of Virginia’s Center for Politics show that post-World War II the success rate for House members seeking reelection averaged 92.4 percent. When retiring members are included, the average rate drops to 84.5 percent. Breaking out those numbers based on major pieces of campaign finance legislation truly shows how campaign finance laws protect incumbents and limit competitive democracy.
Prior to campaign finance regulations taking effect, from 1946 to 1972 the success rate for House members seeking reelection averaged 90.3 per cent. When including retirements, the rate averaged 83.3 percent. These numbers are significantly lower than the post-war average.
After the post-Watergate restrictions on campaign finance activity, the success rate of incumbent House members seeking reelection jumped to 94.6 percent. When including retirements, the reelection rate jumped to an average of 85.5 percent. This is a significant increase due to it being harder for challengers to raise money to unseat members of Congress under restrictive campaign finance regulations.
After the even more restrictive regulations enacted due to BCRA in 2002, the success rates for incumbents increased further. There were four elections between BCRA’s passage and the Citizens United decision: 2002, 2004, 2006, and 2008. The average success rate for incumbents seeking reelection for those four elections was 95.6 percent, and the reelection rates including retirements was 88.2 percent.
Just how competitive has Citizens United made electoral politics? The post-Citizens United success rate of incumbent House members seeking reelection plummeted to 91.9 percent, which is below the post-WWII average. When the reelection rate includes retirements, it is below pre-campaign finance regulation levels, at 82.9 percent.
The data don’t lie, contrary to what the political class tells you; less campaign finance regulation strengthens, rather than hurts, competitive democracy.
Here’s how that played out in Alabama this week.
Prior to Citizens United, incumbents, like Luther Strange, were able to raise money from people looking to get on their good side. Over multiple years, incumbents are able to build up sizeable war chests. When looking to run for federal office, challengers were often intimidated by the amount of money incumbents had on hand, and otherwise strong challengers would either be vastly outspent or decide to not run for election outright.
After Citizens United, the playing field was leveled. While restrictions on the amount of money challengers, like Roy Moore, can raise from individuals remains, the ability for allies of candidates to pool resources to help has been greatly increased. While challengers and their allies seldom spend the same as incumbents and those looking to help them, they are able to at least compete.
This is true especially in a small-media market like Alabama. When spending money in an election campaign, there is a law of diminishing returns. Over a certain point, for every dollar you spend, you only have the ability to move the needle a miniscule bit in your direction. You can only saturate a media market with a campaign message so much. There is a point at which extra money is virtually worthless.
Pre-Citizens United, a challenger like Moore would have had trouble breaking through the negative ads of an incumbent, especially when coupled by a party machine, like Mitch McConnell’s.
Post-Citizens United, allies of challengers do not face artificially low limits on the amount of money they can pool to help their candidate. While unable to match the $10 million-plus spent by allies of Strange, the roughly $2 million spent by Moore’s allies was enough to help him to a decisive victory.
While there are multiple reasons Moore won, pre-Citizens United the likelihood that the incumbent would have prevailed would have been close to pre-ordained. With the level playing field of a post Citizens United world, the grassroots, and their allies, are able to topple the machine.
That’s why incumbents, and especially Democratic incumbents, hate freedom in political spending. It threatens their livelihood.
Robert Eno is the director of research for Conservative Review. He is a conservative from deep blue Massachusetts but now lives in Greenville, SC.