Eliminate potential impropiety by making PSC appointive

While it lacks important contextual background and sometimes reads as if it supports a hidden agenda, a series about campaign finance law regarding donations by The New Orleans Times-Picayune and WVUE brings up an interesting question regarding donations to Louisiana’s Public Service Commission. But, just as the best answer to questions about limits to candidates for statewide executive, Board of Elementary and Secondary Education, and legislative spots is perhaps not what the series authors would support, so is the best answer to the same question regarding the PSC also not something that its commissioners or self-styled reformers would support.

The argument for restricting donations to candidate for these other positions not only is for the most part intellectually lazy, but it also tramples free speech rights. The case against donations because they buy influence is almost without qualification rejected by political science research, although they do serve to buy access. Still, with access easily obtainable this way by a multitude of interests, and with independent-minded policy-makers out there who are expert at playing off interests against each other constrained only by their constituents, it’s clear that no one interest has any structural advantage over any other.

Better supported as a point of concern is the notion that contributions may put a donor close to the head of the line in terms of appointments to boards and commissions, although almost all of these officers have little power and do not receive a salary, but as appointees are expected (or at least anticipated) by appointers to follow that person’s issue preferences, their decisions end up reflecting by and large the will of the majority of the public who put the appointers into the offices where they may appoint. Thus, there is no problem of democratic deficit or having certain interests with outsized influence here, either.

But perhaps the PSC is a different story, for two reasons. One is that its elective positions are salaried, full-time jobs. This creates an additional, potentially perverse incentive for allowing donors to exert more influence over an official who must run for reelection periodically: the desire to keep paid employment. This also is true of other statewide elected officials.

Yet compounding the problem is that the narrowness of the PSC’s authority, especially its regulatory power, magnifies the potential influence of donors. Since it rules over a narrow scope of issues, those who do not have an interest over that small subset of them tend to ignore the activities of these positions, leaving the field of play to a much smaller group of interests. The same is a valid critique of the five junior statewide elected positions: secretary of state, attorney general, treasurer, insurance commissioner, and agriculture and forestry commissioner. So perhaps this case is different, and thus more stringent limits, including to zero (emulating the position on the gambling industry) should be put in place.

However, the simplistic idea of banning contributions from regulated industries by the PSC questionably reduces free speech rights of some and illegitimately enhances that of others. Such a ban would privilege interests advocating against legal activities of regulated industries, for these still could make donations. Further, it magnifies the influence of any interests not regulated; for example, current PSC Commissioner Clyde Holloway gets a large amount of his campaign cash haul from political interests outside of the PSC from contacts he has built up over a lengthy political career including a stay in Congress and runs for statewide offices.

And, this seems to be a solution in search of a problem. Witness PSC Commissioner Foster Campbell, who gets a good portion of his donations from industry despite the fact that he is the most ardent foe of many of the industries being regulated, to the harm of both taxpayers and consumers. Why should so many regulated entities give to him and not to his competitor, or potential competitors who never ran because they saw industry support of him, in his last 2008 reelection when they were so much more industry-friendly if donations really give some kind of influence advantage to the donors?

In short, any ban on regulated interests’ given not only serves no useful purpose, it is unjustifiably punitive on those interests relative to others. So because this collateral damage exists by reducing the free speech rights of some, the real solution is to go back to first principles and rather than tackling the symptoms, get rid of the disease: make PSC positions (and while at it make some if not all of the junior statewide elective offices) appointive, not elective.

That way, money can play no role in decisions. And while this brings up the criticism above of donors getting appointments, the current checks that exist in terms of legislative concurrence in appointment – and the political reality that an appointer can ill afford to have someone not capable of performing such a relatively high-profile job in that position, risking unfavorable redounding of bad decision-making by appointees to affect his job security – will maximize the chances that these positions are not bought and sold on the basis of donations.

Short of this, establishment of term limits would prove somewhat helpful. With those in place, officeholders may think more in terms of policy accomplishments and how their performance will be judged in terms of future ambitions for other offices and feel less pressure to follow donors’ requests, knowing donors’ resources cannot help them stay in office forever.

Of course, those who seek to increase their political influence by having their speech unregulated such as the media, those with a vendetta against regulated industries, and commissioners themselves will reject either of these solution because it reduces their power and privilege. But these are the best policy options that maximize political expression and minimize any untoward temptations PSC commissioners might feel from blandishments presented by any interest.