On 4/22/11, Smith, Brad <BSmith@law.capital.edu> wrote:
Dear David,
A constant theme in my scholarship, my legal briefs, and my popular writing
for many years has been that a major problem with virtually all campaign
finance measures - perhaps *the* major problem - is that they are
particularly prone to abuse for partisan purposes.
This is the intractable problem of election law generally.
Non-campaign finance laws that are nevertheless election laws are made
by incumbents, the vast majority of whom anticipate seeking
re-election under the laws they make for elections.
There is not only partisanship in this, but a large issue regarding
the self-dealing that is inherent in voting on the rules for one's own
re-election campaign. Another very influential group when it comes to
election laws - election officials - have a non-partisan bias to
engage in CYA by, inter alia, avoiding the transparency that is the
predicate condition of accountability.
Rephrased along the lines of the above, I would concur with Brad Smith
that this is perhaps *the* major problem of election law, one that
guarantees that we will be able to discuss, debate and "reform"
election law eternally. Putting on a non-partisan hat and delegating
election rule-making to a "non-partisan" group simply disguises the
partisan preferences at hand (which are likely, but not necessarily,
those favoring "moderation" or "moderate" candidates).
The purpose of elections is solely to measure the will of the people
like a nurse takes a temperature, and not to tamper with the
thermometer to encourage the "correct" readings on the thermometer.
Yet, this "tampering" flows from the unavoidable partisanship of
everyone who would participate in elections, at least absent the
strictest adherence and fidelity to the measurement of the will of the
voters, come what may.