Working Paper No. 07-46:
Revisiting the Fable of Reform
Date Posted: 2007
The modern campaign finance fable has its root in progressive political arguments. Advocates placed great faith in the management by experts of social problems, and the application of scientific principles to politics. For campaign finance reform, this meant the study of campaigns, the diagnosis of corruption and the prescription of legislative remedies. To sustain this idea over time, as it turns out, required a fable. That fable justified past reform efforts as calculated, measured and reasonable remedies, prescribed by Congress (or legislators, or regulators) after careful examination of political ailments. As new symptoms arise, the fable taught that lawmakers (or regulators) are justified in revisiting the diagnosis, unfettered by judicial interference or constitutional constraint.
In the Supreme Court's 1957 majority opinion in United States v. UAW-CIO, known more commonly as Auto Workers, Justice Frankfurter added the necessary history to makes the reform fable work. Subsequent campaign finance decisions lean heavily on this account of the reasonable and measured history of campaign finance regulation. Judges rely on the decision's expression of "history" to justify deference to regulatory judgments.
This Article corrects and supplements the history in Auto Workers. It examines in detail the specific events Frankfurter cited in the opinion. It shows how the opinion avoided political context and truncated legislative history. What emerges from a more complete account of the history is a messy, complicated record, dictated by political opportunism. At each step, reform is a way to capitalize on public sentiment (against the Sugar Trust, or John L. Lewis, as we shall observe) and restrict political rivals' access to financial resources, using little debated legislative vehicles and parliamentary skill.
If Congress's credibility as a source of reform is derived from a mistaken view of its record, then judges may be too willing to accept Congress's rationalizations for legislative choices. If, out of misplaced respect for a fable, courts allow enforcement of laws that burden political activity, citizens and activists outside the bubble of Congressional protection risk disproportionate punishment for exercising political rights. Correcting the flawed historical premise, and setting courts to the task of evaluating closely all these laws, would go some distance to restoring proper checks upon campaign legislation. Courts, legislators, and lawmakers need to understand history. Especially in campaign regulation, where high purpose can conceal self-interest, it does no good to adopt a fable as history, or adapt history to a fable.