Like aftershocks following an earthquake, the political responses to last month’s high-profile judicial campaigns continue to rumble through the system. The aftershocks threaten to do more damage than the original temblor.
Bothered by the exuberant display of political free speech, reformers predictably and drearily think the solutions can be found in more regulation. When the state Public Disclosure Commission met last month, staff members briefed it on independent expenditure campaigns this year.
According to The Seattle Times, commissioners “appeared alarmed” by the money spent on these independent efforts. Mike Connelly, a commission member from Spokane, is quoted as saying that “the corporations, trade associations, unions … have taken control of the election process. By the simple volume of the money being spent, they have taken over … pre-empted if you will, the voters and individual citizens.”
Alarmed indeed. Consider what the PDC learned. A little more than $2 million was spent in Supreme Court races, with the Building Industry Association of Washington (BIAW) the largest single player. The big money went to the race between incumbent Chief Justice Gerry Alexander and challenger John Groen. Alexander won re-election in the primary. From the other heavily contested primary, the top two finishers, state Sen. Steve Johnson and incumbent Justice Susan Owens, face off next month.
Exactly how have outside interests “pre-empted” the voters, many of whom participate in and are represented by unions, trade associations and corporations? It looks to me like the voters had the last word and delivered the expected results: re-electing one incumbent and sending another incumbent into a run-off against a well-known and credible state senator.
Granted, Groen had a better showing than might have been expected in a race pitting an attorney with no judicial experience against an incumbent running for his third six-year term. The BIAW money probably helped him. But it’s also likely that some of the heavy-handed advertising backfired, creating sympathy for the incumbent and distaste for the challenger, despite the fact that neither candidate had anything to do with the ads’ content.
It would be far better if the candidates were responsible for their own campaigns. But misguided attempts to reform campaign finance have weakened a candidate’s control. When the McCain-Feingold campaign finance reform bill limited soft-money contributions to candidates and political parties, enormous sums of money flowed to so-called “527 groups,” from MoveOn.org to the Swift Boat Veterans. And when the Legislature extended campaign finance limits to Supreme Court races, lawmakers created the conditions leading to this year’s independent expenditures – eroding accountability in much the same way the national 527 campaigns did.
The protestations of alarm are overwrought. The ads, while tough, were just part of the story. Voters had access to plenty of information. The BIAW, the group on the receiving end of most of the righteous indignation, did not hide its involvement. Disclosure requirements were satisfied.
The PDC directed staff to look into ways to restrict independent expenditures. In politics, money is speech. What the PDC wants to do is limit free speech, presumably because voters can’t cope.
Imagine: Lurid TV programs air in prime time, e-mail systems clog with ads for sex products, the tabloids at the supermarket checkout line offer suggestive titillation, and the speech police want to make sure we don’t get unfiltered information about Supreme Court candidates.
They know it won’t be easy. That pesky First Amendment keeps getting in the way, making it hard to come up with solutions that “would really take care of the problem.” Besides, blogs, YouTube and podcasts have transformed political communications, soaring above the regulators’ pedestrian efforts to control the game.
One idea worth discarding early: public funding for judicial elections. Gov. Chris Gregoire has asked her staff to explore the idea. It should be a brief investigation. Voters don’t like it. It simply adds to the burden of challengers taking on entrenched incumbents. And from what we’ve seen with presidential campaigns, there’s no evidence that public financing would substantially slow independent expenditures anyway.
The system is working, despite the reformers’ tireless efforts to impose gag rules. There’s no need to pursue yet another flawed effort to limit the public’s access to unfettered political speech. We can handle it.
Richard S. Davis, president of the Washington Research Council, writes every other Wednesday. His columns do not necessarily reflect the views of the council. Write Davis at rsdavis@researchcouncil.org or Washington Research Council, 108 S. Washington St., Suite 406, Seattle, WA 98104-3408.
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