One of the most shopworn arguments against limiting the influence of money in politics is that incumbent legislators can’t be trusted to pass laws that affect their own re-election. Washington Post columnist George Will trotted this argument out in a recent column, claiming that “all limits will be set by incumbent legislators . . . [to] serve incumbents’ interests.” And in this April’s McCutcheon v. FEC decision, Supreme Court Chief Justice John Roberts intoned that “those who govern should be the last people to help decide who should govern.” In an era where people distrust government, this type of rhetoric may get some nods.

There are just two problems with the argument. It’s empty rhetoric. And it doesn’t jibe with the Constitution.


We know it’s empty because these critics don’t make an exception for campaign finance laws passed by the voters themselves. Many states, and even cities, allow voters to put an initiative directly onto the ballot, without going through the legislature, and several have passed campaign finance initiatives. And nobody is willing to argue that voters themselves shouldn’t be trusted to help decide who should govern. So in these cases, the opponents of campaign finance reform simply ignore their own rhetoric.

In 2011, Chief Justice Roberts struck down the Arizona Citizens Clean Elections Act, which, as he conceded, was “passed by initiative.” And in 2012, the Court summarilytossed a Montana campaign finance law that had been passed by voter initiative in 1912. Meanwhile, this winter, big-money donors are challenging another Montana campaign finance law passed by a 1994 voter initiative.

The truth is, the Supreme Court has made it clear that it doesn’t like voter-passed campaign finance laws any better than laws passed by legislatures. In striking down election contribution limits passed by the voters of Berkeley, California, the Court proclaimed that “[i]t is irrelevant that the voters, rather than a legislative body, enacted” the law. A federal court cited that opinion in striking down a statewide campaign finance law passed by voters in Missouri.

So opponents of reform should be honest, and admit that their resistance to efforts to reduce the influence of big funders in politics has nothing to do with who passed the law. The argument about “incumbent legislators” is a political smokescreen, deployed to capitalize on dissatisfaction with Congress, but forgotten when inconvenient.

It’s also inconsistent with the Constitution. The “incumbent legislator” argument, if anyone took it seriously, would mean that we shouldn’t ever trust Congress to pass laws that could affect members’ re-election. Is that what the Constitution says?

To be sure, the Framers worried about a self-interested Congress. As James Madison wrote in the Federalist Papers, Congress should be “dependent on the people alone.”

But the Framers didn’t accept the implications of George Will’s position.

In Article I, section 4, the Constitution says that “Congress may at any time by Law make or alter” laws on the times, places, and manner of elections. Section 5 says “[e]ach House shall be the judge of the elections, returns and qualifications of its own members” and that “[e]ach House may determine the rules of its proceedings, punish its members for disorderly behavior, and, with the concurrence of two thirds, expel a member.” So the Framers would have been perplexed by George Will’s thundering about “incumbent legislators” writing the laws that govern federal elections.

It’s time for those who oppose limiting money in politics to drop this dishonest and unconstitutional argument, and for the rest of us to demand that our state and federal legislators get serious about restoring sanity to our political system. This isn’t about Democrats, Republicans, or the political fights of today. This is about reclaiming our democracy for ourselves and our country’s future.

Fein is the legal director of Free Speech For People  a national nonpartisan nonprofit organization that engages in legal advocacy to confront the misuse of the U.S. Constitution.