The Democratic Paradox of Campaign Finance Reform
Author(s): Daniel R. Ortiz
Source: Stanford Law Review, Vol. 50, No. 3, (Feb., 1998), pp. 893-914
Published by: Stanford Law Review
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TheDemocraticParadoxof Campaign
FinanceReform
DanielR. Ortiz*
Campaignfinance reformrests on a centralfear: thatpolitical actors will
converteconomicadvantageintopoliticalpower. However,thisfear assumesa
failure of normativedemocratictheory. If voters thinkthroughpolitical decisions in the way democratictheoryassumes-by exercisinginformed,careful,
independentjudgment-economic inequalitiesamong candidatesshould make
little differenceto the outcomeof elections. Reform,then,is premisedon doubt
about voters'-or at least some voters'-civic capabilities. This is the democraticparadox of campaignfinance reform. Thisarticle reveals thisparadox
and traces similaritiesbetweencampaignfinance reformand other types of
regulationof thepoliticalprocess-some attractiveand some not. It concludes
that the paradox is unavoidableand, althoughdiscomforting,should be made
transparent.For onlyby confrontingour democraticshortcomingscan we hope
to overcomethem.
INTRODUCTION
Seldom have so many workedso hardand so long to accomplish so little.
Despite enduringpopularsupport,campaignfinance reformhas had, at best,
mixed success. Congress has moved slowly, when at all,' and has often enacted changes that are either cosmetic, easy to circumvent,or practicallyunenforceable.2 If a reform should actually threatento matter,the courts, par* JohnAllan Love Professorof Law and ElizabethD. and RichardA. MerrillResearchProfessor, Universityof VirginiaSchool of Law. I would especiallylike to thankPamelaS. Karlan
and VincentA. Blasi for theirhelpfuland kindcriticismof an early draftof this article. I would
also like to thankErikPritchardforhis researchassistance.
1. On the nationallevel, variousgroupshave pushedcampaignfinancereformever since the
end of the nineteenthcentury. Congress'responsehas alwaysbeengrudging.For a comprehensive
E. MUTCH,
history of federal efforts at campaignfinance regulation,see generally ROBERT
CAMPAIGNS,CONGRESS,AND COURTS:THE MAKINGOF FEDERALCAMPAIGNFINANCELAW
(1988). Fora brieferrecounting,see generallyAnthonyCorrado,Moneyand Politics:A Historyof
Federal Campaign Finance Law, in CAMPAIGN
FINANCEREFORM:A SOURCEBOOK
25 (Anthony
Corrado,ThomasE. Mann,DanielR. Ortiz,TrevorPotter& FrankSoraufeds., 1997) [hereinafter
CAMPAIGN
FINANCEREFORM].
2. See Corrado,supra note 1, at 27-32 (detailingfaults of pre-Watergatelegislation). The
Federal Election Campaign Act Amendments of 1974, Pub. L. No. 93-443, 88 Stat. 1263, are the
great exception to this statement. See Daniel R. Ortiz, The First Amendment at Work: Constitutional Restrictions on Campaign Finance Regulation, in CAMPAIGN
FINANCEREFORM,supra note
1,at61.
893
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ticularlythe United States SupremeCourt,have been quick to strike, leaving
in their wake a patchworkframeworkthat Congress never would have enacted and that makes little sense.3 And to the extent courts do leave something meaningful behind, the available enforcementmechanisms are underfunded,hamstrungby political interference,and designed to deadlock.4
The states have been only slightly more successful. Several states have
passed real reform measures,5often through initiative, only to have their
hearts struck out by the courts.6 And state administrativeenforcement
mechanismssuffer from many of the same problemsas their federal counterparts.7 The only source of optimism in the reform saga is the remarkable
(and perhapsfoolish) tenacity of reformers. Over and over they returnto the
fray, only to be disappointedonce again.
The usual villains in the campaign finance story are the legislators who
depend on private fundraisingto run their campaigns, the larger private interests that fund them, and the courts,particularlythe United States Supreme
Court. In fact, nearly every discussion favoring reformattacksBuckleyv.
3. Buckleyv. Valeo,424 U.S. 1 (1976) (percuriam),is thebest examplehere. In thatcase, the
SupremeCourtheld, among otherthings, that Congresscould limit contributionsto a candidate
fromothers,but not fromthe candidatehimself. See id. at 23-29, 51-54. It is doubtfulthatCongress wouldhave ever agreedto treatthe one type morefavorablythanthe other,since the effect is
to give rich challengersa strong advantageover less rich incumbents. Similarly,the Court in
contributions
to a candidate,but not independent
Buckleyheld thatCongresscould limitthird-party
expenditureson thatsamecandidate'sbehalf. See id. at 23-29, 39-51. Figureson both sides of the
campaignfinancedebatecriticizethis distinctionas makinglittle sense. See ColoradoRepublican
Fed. CampaignComm.v. FEC, 116 S. Ct. 2309, 2325-28 (1996) (Thomas,J., concurringin the
judgmentand dissentingin part) (arguingagainstthe constitutionalityof limitingcontributions);
Buckley,424 U.S. at 241-46 (Burger,J., concurringin partanddissentingin part)(arguingagainst
the constitutionality
of limitingcontributions);
id. at 259-62 (White,J., concurringin partand disof limitingexpenditures).
sentingin part)(arguingin favorof theconstitutionality
4. For a generaloverviewof the FEC'sabilityto enforceits mandate,see generallyThomas
E. Mann,TheFederal ElectionCommission:Implementingand EnforcingFederal CampaignFinance Law, in CAMPAIGN
FINANCEREFORM,supra note 1, at 275, and source materials excerpted
there. The most pressing criticismsof the FEC's various structuralflaws appearin BROOKS
WHYTHEFEDERAL
ELECTION
COMMISSION
FAILED23-37 (1990).
JACKSON,BROKENPROMISE:
5. See generally AnthonyCorrado& Daniel R. Ortiz, Recent Innovations,in CAMPAIGN
FINANCEREFORM,supra note 1, at 335 (describing the recent flurry of state reform efforts).
6. See, e.g., Carverv. Nixon, 72 F.3d 633 (8th Cir. 1995) (holdingunconstitutional
Missouri
to $100 to $300 per electioncycle),
PropositionA, whichlimitedindividualcampaigncontributions
cert. denied, 116 S. Ct. 2579 (1996); ShrinkMo. Gov't PAC v. Maupin,71 F.3d 1422 (8th Cir.
two Missouristatutesthatlimitedspendingin stateoffice electoral
1995) (holdingunconstitutional
campaignsand that prohibitedcarry-overof contributionsfrom one campaignto another),cert.
denied, 116 S. Ct. 2579 (1996);Day v. Holahan,34 F.3d 1356 (8th Cir. 1994) (holdingunconstitutional Missouricampaignfinancereformlaws); Vannattav. Keisling, 899 F. Supp. 488 (D. Ore.
1995) (holdingunconstitutionalan Oregonballot measurethat limited the amountof campaign
contributionsthatcandidatescouldacceptfromout-of-district
donors).
7. See generally THOMASGAIS& MICHAELMALBIN,THEDAY AFTERREFORM:SOBERING
CAMPAIGN
FINANCELESSONSFROMTHEAMERICAN
STATES(forthcoming 1998).
February1998]
CAMPAIGN
FINANCEREFORM
895
Valeo8as posing the centraldifficulty to campaignfinance reform.9 Buckley,
I agree, is wrong. But I think there is a deeperproblemhere. The majorobstacle to campaign finance reform is not that the Supreme Court misunderstands the role of money in politics nor, more fundamentally,misinterprets
the First Amendment,as many who favor regulationargue. Rather,the arguments advancedby the reformersthemselves are internallyincoherent. In
a deep sense, those who argue for campaignfinance reformappearto violate
democratictheory in the name of defendingit.
All arguments favoring reform regard the regulation of campaign
spending as necessary to protect liberal democracy.'0 Without such regulation, the argumentgoes, differentfeaturesof democraticpolitics will suffer.
As I will show, however, despite theirvery differentviews of which features
need protection,reformargumentsall rest on a single fear: that, left to themselves, various political actors will transformeconomic power into political
power and thereby violate the democratic norm of equal political
empowerment.'1To me, this fearmakes sense.
Nevertheless, in the name of protecting democracy, these theories all
violate one of democracy'scentralnormativeassumptions: the idea that voters are civically competent.12To the extent Americansare the kind of people
that democratictheory demands-i.e., engaged, informed voters who carefully reason throughpolitical arguments-we hardly need the kind of protection that campaign finance regulationaffords us. Even if one side of a
political race dramaticallyoutspendsthe other,voters can be relied on to sort
through the merits and ultimately decide on the right candidate or policy.
Only if many of us do not make decisions this way need we worry about the
dangers of overspending. In other words, the equality-protectingand other
rationales underpinning most forms of campaign finance regulation are
premised on doubts about voters' civic capabilities. This is the democratic
paradoxof campaignfinancereform.
In the first section of this article, I lay the ground for this paradox. I
show how, despite their seeming differences, all four leading justifications
for campaign finance reform rest on a single fear: that campaign spending
8. 424 U.S. 1 (1976) (per curiam).
9. See, e.g., CASS R. SUNSTEIN,DEMOCRACY
AND THEPROBLEMOF FREESPEECH94-101
AND THE PROBLEMOF FREE SPEECH];CASS R.
(1993) [hereinafter SUNSTEIN,DEMOCRACY
SUNSTEIN,THE PARTIALCONSTITUTION
84-85, 223-24 (1993); Ronald Dworkin, The Curse of
American Politics, N.Y. REV. BOOKS,Oct. 17, 1996, at 19.
10. See text accompanying notes 14-33 infra.
11. See JOHNRAWLS,POLITICAL
LIBERALISM
360-61 (1993); MICHAELWALZER,SPHERES
OF JUSTICE22 (1983); Cass R. Sunstein, Political Equality and Unintended Consequences, 94
COLUM.L. REV. 1390, 1391-93 (1994).
12. For a general discussion of this tension between the demands of democratic theory and the
civic capacities of average citizens, see MICHAELX. DELLICARPINI& SCOTTKEETER,WHAT
AMERICANS
KNOWABOUTPOLITICS
ANDWHYITMATTERS22-61 (1996).
896
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can converteconomicintopoliticalpower. In the secondsection,I explain
how this centralconcerndisappearsif votersare civicallycompetentin the
I focuson a powertheoryassumes.Inparticular,
waynormativedemocratic
ful argumentthat RonaldDworkinhas recentlymade that democracyreforpeople'svotesto makea difference,
quiresnot only an equalopportunity
but also an equalopportunity
for peopleto persuadeothersto theirviews.13
to persuade"
means,I showthatit
By unpackingwhatan "equalopportunity
is premisedon a particularview of how votersmakepoliticaldecisions,a
view whichis at oddswithnormativedemocratic
theory.
The thirdsectionexploresthe pedigreeof this belief in voters'civic incompetence. The belief goes back very far and underliesmany historical
electoralpractices,includingpropertyqualifications,
pauperexclusions,poll
of certainracialand gendergroups,and
taxes, outrightdisenfranchisement
literacytests. Justas all of these now discreditedmechanismswere once
defendedas ways of makingsurethatthe vote was independently
exercised
those
who
were
of
or
onlyby
capable understanding sufficientlycaringabout
finance
reformreflectssuspicionaboutvoters'abilityto
politics,campaign
exerciseindependent
politicaljudgment. Whilethe older,now discredited,
meansworkedby denyingthe vote to peoplewhose civic capabilitieswere
suspect,campaignfinanceregulationworksby limitingthenumberandtypes
of appealsthatpeoplecan maketo thesevoters'attention.Only if you believe thatpeopledo not exercisethe vote in the way democratictheorydemandswouldyou fearunconstrained
appealsto them.
Althoughwe have now repudiatedall thesepractices,it is importantto
realizewhy. We have rejectedthemnot becausewe have come to believe
theiraim of ensuringthe independentexerciseof politicaljudgmentis not
worthpursuing-farfromit. We haverejectedthemonly becausewe have
come to thinkthatsome peoplehad misappropriated
thesepracticesto unexclude
that
were
as
as
the
rest
of us of exercising
justly
groups
just capable
thiskindof judgment.Theircentraldemocratic
aimremainsuntarnished.
Thefourthsectionexploresa moreflatteringanalogybetweencampaign
financereformandprohibitionsagainstvote trafficking.As I show, these
two typesof reformareanalogousonly if we againbelievethatvotersmake
politicaldecisionsin a way thatconflictswithnormativedemocratictheory.
Forreformersto drawsupportfromthisanalogy,theymustfirstquestionthe
civic capacitiesof manyof thevoterswhosechoicestheyaimto protect.
The final section of the articleoutlinesa new strategyfor defending
campaignfinanceregulation.This strategysees reformas imperativeprecisely becausedemocratictheoryis, in somedeepsense,utopian. Sincewe
do not live up to the demandsthatnormativedemocratictheoryplaceson us,
13. See Dworkin,supranote 9, at 23-24.
February1998]
FINANCEREFORM
CAMPAIGN
897
we shouldstoppretendingthatwe do andinsteaddesigninstitutionalstructures,includingcampaignfinanceregulations,to overcome,not ignore,our
weaknesses. Seen from this perspective,democracywould functionas a
regulativeideal ratherthanas a descriptionof reality. As such, campaign
financeregulationwouldbe defendedas a meansof copingwith our civic
incompetenciesratherthanas a practicenecessaryto protectthe civically
competentfrombeingpreyeduponby advertising.Sucha provocativedebut it is morerealisticand
andcontroversial,
fense maybe bothunflattering
less internallyconflictedthanits predecessors.At bottom,reformersmust
rejectthe two alternativeassumptionsthatunderliemuchof everydaydiscourseaboutdemocracy:thatwe do notcarehow votersmaketheirpolitical
decisionsor that,if we do care, votersmake sufficientlyindependent,informedjudgments.
I. THE EVIL AT THE ROOT OF ALL MONEY
Four seemingly differentconcernsmotivatecampaignfinance regulation.
First,somereformersadvocateregulationas a meansto improvethe day-today operationof legislative politics. Vincent Blasi, for example, has argued
that the need to keep representatives'eyes on theirjobs justifies some important campaign finance restrictions.14 Since elected representativesfeel
they need to spend much time that could otherwise be spent on lawmaking
raising money to protect their seats from challenge, they will devote too
muchof theirenergyto tasksotherthanthosetheirconstituentselectedthem
to do.'5 In this view, fundraisingis a form of shirking, which impairs the
quality of the voters' representation.Blasi believes that the state has an importantinterest in representativesavoiding such behavior, an interest which
14. See VincentBlasi, Free Speechand the WideningGyreof Fund-Raising:WhyCampaign
L. REV.1281, 1282SpendingLimitsMayNot Violatethe First Amendment
AfterAll, 94 COLUM.
83 (1994).
15. As Blasi putsit:
As difficultas thegeneralsubjectof representation
canbe, one doesnot needa sophisticated
of eitherrepublican
understanding
theoryor moder interestgrouppoliticsto concludethat
there is a failure of representationwhen candidatesspend as much time as most of them now
do attendingto the task of fund-raising. This featureof moder representationshould trouble
those who favor close constituentcontrol as well as those who favor relative independencefor
legislators;those who favor an "aristocracyof virtue"as well as those with more populist ideals regardingwho should serve; those who conceive of representationas flowing exclusively
from geographicconstituenciesas well as those who see a role for constituenciesdefined along
other lines, be they racial, ethnic, gender, economic, religious, or even ideological. Whatever
it is that representativesare supposedto represent,whetherparochialinterests,the public good
of the nation as a whole, or something in between, they cannot dischargethat representational
function well if their schedules are consumed by the need to spend endless hours raising
money and attendingto time demandsof those who give it.
Id. at 1304 (footnotes omitted).
898
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supportssome regulationof money in politics, particularlythe imposition of
campaignspendinglimits.16
Second, many argue that regulatingmoney in politics can help improve
the quality of political discussion and debate. The two most notable proponents of this view, J. Skelly Wrightand Cass Sunstein,believe that appropriate regulationcan refocus political discourse on substantiveideas. Wright,
for example, argues that unregulatedspending leads to people voting according to what he calls "intensities."17 When candidates spend huge
amounts of money on mass advertising, he argues, voters will follow the
louder ratherthan more thoughtfulvoice.18 He also believes that restraining
spending would improve discussion by encouragingretail ratherthan mass,
wholesale politics.19 To his mind, such a shift would mean that candidates
would individually engage and address voters ratherthan treating them as
mass consumersto be targetedwith affective advertisements,the same way a
deodorantmanufacturerinterestedin increasingdemandfor its productmight
view them.
Similarly,Cass Sunsteinhopes that campaignfinance regulationwill improve political debate, but he focuses on legislative rather than electoral
politics.20 As he puts it:
Politicsshouldnot simplyregisterexistingpreferencesand theirintensities,especially as these are measuredby privatewillingnessto pay. In the American
constitutionaltradition,politics has an importantdeliberativefunction. The
constitutionalsystemaspiresto a formof "governmentby discussion." Grants
of cash to candidatesmightcompromisethatgoal by, for example,encouraging
legislaturesto vote in accordancewithprivateinterestratherthanreasons.21
By lessening the legislator's incentive to serve contributorsratherthan
constituents, regulation may improve the chance that the legislature will
function throughdiscussion, reason-giving, and debate. Thus, according to
Wright and Sunstein, campaign finance regulation is necessary to improve
16. See id. at 1302-09.
17. J. Skelly Wright,Politics and the Constitution:Is MoneySpeech?, 85 YALEL.J. 1001,
1019 (1976).
18. See id. at 1018-20.
19. For example,in rejectingthe view thatrestrictingcontributionsand expenditureswill reducethe overallamountof politicalspeech,he writes:
Thegivingandspendingrestrictions
andotherindividualsto relymore
maycausecandidates
on less expensivemeansof communication.
Butthereis no reasonto believethatsucha shift
in meansreducesthenumberof issuesdiscussedin a campaign.And,by forcingcandidates
to
put moreemphasison localorganizingor leafletingor door-to-door
canvassingandless on
therestrictions
full-pageadsandtelevisionspotcommercials,
maywell generatedeeperexplorationof theissuesraised.
Id. at 1012(footnoteomitted).
20. See Sunstein,supranote 11, at 1392(statingthat"[c]ampaignfinancelaws mightpromote
the goal of ensuringpoliticaldeliberationandreason-giving"in the legislature).
21. Id.
February1998]
CAMPAIGN
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899
the quality of political decisionmakingon both the elective and representative levels of democraticpolitics.
Third, even more reformersargue that campaign finance regulationprotects the political process from direct, quid pro quo corruption. This view,
like Sunstein's, maintains that, without some forms of regulation, particularly limitations on individual direct contributionsto political candidates,
candidates become so beholden to contributorsthat they follow the contributors' rather than the voters' interests.22 Everyone, including the Supreme Court, agrees that this is a serious danger.23 The pivotal questions
concern how great a danger it actually presents24and how well alternative
means of regulation,like briberylaws, can controlit.25
Fourth,and most controversially,many reformersarguethat regulationis
necessary to maintain political equality.26 These writers all start with the
belief that democracydemandsformalequality in the political sphere. Some
voters' candidatesmay win, some may lose, but each voter should have an
equal chance to affect the ultimate decision. This principle representsthe
democraticnorm of equal political entitlementand is reflected in such legal
rules as one person, one vote,27the Fifteenth and Nineteenth Amendments,
and the Voting Rights Act of 1965.28 This principle is, by now, an almost
universally accepted tenet of our political culture, although it is, of course,
subject to certain well-known exceptions that reflect some individuals' inability to properlyexercise choice. For example, the best known and probably least controversialexception is thatdenying childrenthe rightto vote.29
To this last group of reformers,problems arise from democracy's tolerance of great economic inequality.30The dangeris that some of the rich will
22. The anticorruption
rationalediffersfromSunstein'sview, however,in thatit does not see
debateand reason-givingas necessarilyrepresentingthe voters' interests. Theirinterestsmightbe
which Sunsteinmightdecryas privateinterestsheld in common.
undeliberative,
23. See FECv. NationalConservativePAC,470 U.S. 480, 496-97 (1985). This, in fact, was
the single reformgoal the SupremeCourtupheldin Buckleyv. Valeo,424 U.S. 1, 26-27 (1976) (per
curiam).
24. See BradleyA. Smith,FaultyAssumptionsand UndemocraticConsequencesof Campaign
FinanceReform,105 YALEL.J. 1049, 1067-71(1996).
25. See Buckley,424 U.S. at 27-28 ("[L]awsmakingcriminalthe giving andtakingof bribes
only deal with the mostblatantandspecificattemptsof thosewith moneyto influencegovernmental action.");see also ColoradoRepublicanFed. CampaignComm.v. FEC, 116 S. Ct. 2309, 232829 (1996) (Thomas,J., concurringin thejudgmentand dissentingin part)(discussingthe Court's
view of briberylaws in Buckley).
26. See Sunstein,supranote 11, at 1392.
27. See Karcherv. Daggett,462 U.S. 725 (1983) (in the contextof federalapportionment);
Reynoldsv. Sims, 377 U.S. 533 (1964) (in the contextof statelegislativeapportionment).
28. 42 U.S.C. ?? 1973-1973gg-10(1994).
29. See, e.g., CAL. CONST.art. II, ? 2; N.Y. CONST.art. II, ? 1; VA. CONST.art. II, ? 1.
30. See BruceAckerman,Creditingthe Voters:A New Beginningfor CampaignFinance, 13
AM. PROSPECT
71, 72 (1993).
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try to stretchtheireconomicadvantageinto the politicalsphere. If the rich
do converteconomicintopoliticalpower,theyviolatethe normof equalpoliticalentitlement.Manyreformersbelievethatcampaignfinanceregulation
is necessaryto helpkeepthe inequalityacceptedin the economicrealmfrom
infectingpolitics,whereinequalityis not so tolerated.31Proposalslimiting
individualspending,for example,areoftendefendedas a way of preventing
influenceon politics.32
thewealthyfromexertinga disproportionate
thisgeneralposition. He sees blindness
RonaldDworkinbestarticulates
as the fundamental
problemwiththe SupremeCourt'scasesrestrictingcamBuckley.TheCourtsimplyfails to see
paignfinanceregulation,particularly
roles. As Dworkinexplains:
one of a citizen'stwo democratic
Citizens play two roles in a democracy. As voters they are, collectively, the final referees or judges of political contests. But they also participate, as individuals, in the contests they collectively judge: they are candidates, supporters,
and political activists; they lobby and demonstrate for and against government
measures, and they consult and argue about them with their fellow citizens....
[W]hen wealth is unfairly distributed and money dominates politics, then,
though individual citizens may be equal in their vote and their freedom to hear
the candidates they wish to hear, they are not equal in their own ability to command the attention of others for their own candidates, interests, and convictions.
When the Supreme Court said, in the Buckley case, that fairness to candidates
and their convictions is "foreign" to the First Amendment, it denied that such
fairness was required by democracy. That is a mistake because the most fundamental characterization of democracy-that it provides self-government by
the people as a whole-supposes that citizens are equals not only as judges but
as participants as well.
... [Of course, n]o citizen is entitled to demand that others find his opinions persuasive or even worthy of attention. But each citizen is entitled to compete for that attention, and to have a chance at persuasion, on fair terms, a
chance that is now denied almost everyone without great wealth or access to
it.33
To Dworkin,democracyrequiresnotjust thatwe eachhavean equalsay
in choosingamongcompetingcandidatesand positions-that is, an equal
vote-but also thatwe eachhavean equalopportunity
to persuadeothersto
our own views aboutthese candidatesand issues. Unregulatedspending
for it allowsthe richto makemoreappeals
violatesthis secondrequirement,
on behalfof theirviews thancanothers.
Theseseeminglydisparate
justifications,however,ultimatelyreston one
centralfear: that economicinequalitiesmight encroachon the political
31.
32.
Finance,
33.
See id. at 71.
See Edward B. Foley, Equal-Dollars-Per-Voter: A Constitutional Principle of Campaign
94 COLUM.L. REV. 1204, 1204 (1994).
Dworkin, supra note 9, at 23.
February1998]
CAMPAIGN
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sphere. The concerns behind the first and thirdjustifications-for example,
that elected officials will shirk theirjobs to do fundraisingand that elected
officials will representcampaigncontributorsratherthan their own constituents-arise because candidatesthemselves perceive that money makes a big
difference in their election prospects. If candidates thought that money
would not make a large difference beyond a certain threshold, they would
spend less time fundraisingand would be less inclined to accept contributions that might appearto bind them to particularinterests. In other words, it
is belief in the power of money to influence politics that leads candidatesto
shirk once in office and overvaluethe interestsof contributors. If candidates
did not believe they could convert economic into political advantage,neither
type of misbehaviorwould occur.
The second concern-that money debilitatesreason-giving and deliberation-also grows out of this same belief. Sunstein's fear that money impairs
legislative deliberationstems largely from his belief that elected officials will
feel compelled to rewardtheir contributorslest they find themselves without
money in the future. And Wright'sconcernthat money harmselectoralpolitics because it encouragesmass advertisingover face-to-face retail politicsand thus, to his mind, manipulatesaffect more than communicates ideasreveals how he believes economic power translatesinto political power. At
bottom, then, whatever the particulardefense offered for campaign finance
regulation, the fear is the same: Without regulation, the rich will convert
their economic into political power. Shirking,debilitateddebate, corruption,
and dangerouslyunlevel playing fields are all different manifestationsof a
single problem. No matterhow it is expressed, the conversion of economic
into political inequalityis the root of all evil in political money.
II. DEMOCRACYAT WAR WITHITSELF
The notion that people can transformeconomic into political power has
such great common-sense appeal that few reformerseven bother to explain
how it occurs. That speakerswith more money can make more appeals to
voters than can those with less money seems obviously to violate equality,
particularlythe equality of opportunityto persuade others, which Dworkin
and others believe democracyrequires. But how does it do so? It is important to lay out the argumentbecause it entails somewhat troublingand "undemocratic"assumptionsaboutvoters' civic capabilities.
Consider two different citizens.34 The first holds down a busy job, but
still manages to read several newspapers, argue politics around the water
34. Theseportraitsare admittedlyquitestylized. Few of us completelyfit one portraitor the
other. We arenearlyall some combinationof both. I knowI am. The caricaturesarehelpful,however, because they help bring into sharperfocus the assumptionsthat we make about ourselves
whenwe describecertaindangersin politics. I employthemas heuristicdevices.
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cooler, and watch the talking heads on Sunday discuss the latest failings of
the political process. The other holds down a busy job too, but spends very
little time pursuingpolitics. Insteadof talking politics with others at work,
the second goes as far as possible to avoid such conversations. This second
citizen is fundamentallydisengaged from public affairs and may not even
know how the candidatesstand on major issues or how they differ from one
another. The little this second, "disengaged"person knows aboutpolitics all
comes from the short commercialsthat are impossible to avoid while watching television. Perhapssome of these have made an impression and maybe
this voter prefers a particularcandidatebecause she has more commercials
than her opponent,all of which are visually stirringand full of general emotional appeal. The voter can favorablyrememberher name, moreover, because the commercialsappearsteadily, but not often enough to annoy. Both
citizens vote in November.
How might money have affected these two voters' choices? As to the
first, money in politics represents-from a democraticand First Amendment
perspective-a very great good. It allows the politically engaged voter to
carefully consider more appeals from each candidate. Many of these appeals, of course, will fail to convey the kind of informationand argument
that the voter cares about and, as such, will be wasted. In no way, however,
should the presence of money worryus here. At worst, the money would be
wasted trying to influence the engaged voter; at best, it would help this voter
make a more informed choice at the polls. Thus, for the engaged voter,
money cannot impair her political choice and may actually improve it. To
say with respect to this voter, then, that campaign spending has converted
economic into political power may be right-it has, after all, turned the
voter's choice-but it is a "good" turn, one we should celebrate, not condemn. Money has, after all, enabled the engaged voter to betterjudge the
merits of each candidate. It has improveddemocracy,not impairedit.
But what about the second, disengagedvoter? This voter also feels good
about his choice. He walks into the voting booth feeling certain about his
decision. He may not know what the issues are or where the candidates
really standon these issues, but from the numerouscommercialshe has seen,
he feels better about one candidatethan the other. In this case too, the campaign has convertedeconomic into political power. The disengaged voter is,
after all, choosing on the basis of commercials made possible by money.
Money, then, has made a differencehere too, but is it, as before, a good difference?
The reformersthink not, and their reason is interesting. Although they
arguethatmoney allows the richercandidateto drownout the poorerone,35it
35. See SUNSTEIN,DEMOCRACY
AND THEPROBLEMOF FREESPEECH,supra note 9, at 99
(criticizingH. Ross Perot'spresidentialcampaignfor "delug[ing]the mediawith advertisements"
February1998]
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is clear that, strictly speaking, the poorer candidate's views are not silenced.36 These views remainedavailable to interestedand inquiringminds
such as that of the engaged voter. The drowning out occurrednot because
opposing views could not be heard, but because the second voter was not
interested in hearing them. Perhaps they were dull, or hard to follow, or
maybe just thought to be irrelevant. To reformers,the real problem is that
mass advertising produced an affective judgment, which the second voter
acted on at the polls.37 As before, campaignspending influenced choice, but
this time not in a positive way. It did not provide the voter with more concrete informationon which to base a decision. Instead,money sold the candidate the same way manufacturerssell their products: by appealing to a
consumer's emotion ratherthan to his intellect. Thus, money produced a
change in the vote, but on a basis many regardas inappropriate.
In Dworkin's view, the two candidatesdo not have the same opportunity
to persuadevoters. With respect to the civic slackers, the "disengaged"voters, the candidate with the greaterresources can conduct a more extensive
and thus more effective advertisingcampaign. But it is importantto realize
thatthe candidateslack an equal opportunityto persuadethe civic slackernot
so much because of their inequality of resources-that was, after all, no
problem with respect to the first voter-but ratherbecause of how the civic
slacker makes political choices: by respondingto sheer advertisingstimulus
ratherthan to issues.38 The inequalityof opportunityto persuade,then, ultimately rests on the civic slacker's disinterestin a politics of substantivepolicy argumentand ideas. With respect to the civic slacker, an equal opportunity to persuadedemands something akin to equal resources, but it also entails a particularlyundemocraticform of persuasion-sheer stimulus rather
than convincing argumentation. Requiring equality of resources will give
each side a fair shot at the civic slacker, but not on any ground traditional
democratictheory recognizes as legitimate.
One starkway of bringing this out is to show how our notions of equal
opportunityto persuade in other decisionmakingcontexts depend critically
on how we believe the particulardecisionmakermakes decisions. When a
and "purchas[ing]
his way into publicconsciousness");Wright,supra note 17, at 1018-20 (noting
thatthe candidatewith moremoney is able to talk at higher"decibels"withoutcontributingmore
ideas to the politicaldebate);Dworkin,supra note 9, at 22 ("Itseems perverseto sufferthe clear
unfairnessof allowingrichcandidatesto drownoutpoorones.").
36. See Joel L. Fleishman& Pope McCorkle,Level-UpRatherThanLevel-Down:Towardsa
New Theoryof CampaignFinanceReform,1 J.L.& POL.211, 244-45 (1984).
37. See note 35 supra.
38. The slackercouldrespondto eitherthe quantityor qualityof the stimuli,butin eithercase
would not be respondingprimarilyto ideas. Such a notionunderliesmanyreformers'arguments.
See David A. Strauss,Corruption,Equality,and CampaignFinance Reform,94 COLUM.
L. REV.
1369, 1373 (1994) (arguingthat"makinga campaigncontributionis roughlyequivalentto delivering a certainnumberof votes to the legislator");Wright,supranote 17, at 1018-20.
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decisionmaker, like a judge, reasons to a decision after listening to both
sides, an equal opportunityto persuadedoes not requireequal resources. If it
did, our civil and criminaljustice systems would look much different. Legitimacy would demand not just court-appointedattorneys for indigents in
most criminal cases,39but something akin to equal quality legal representation and equal investigative supporton both sides of a case. In the case of a
diligent judge, we expect the decisionmakingprocess itself to mitigate some
of the effects of inequalityof resources.
On the other hand, if the decisionmakeremploys a lottery or other random decisionmakingprocess to preserve equality among applicantscompeting for a privilege or benefit, fairness does demand that applicants deploy
equal resources. Imagine the uproarthat would accompany an announcement that people could file as many applicationsas they wanted-and could
afford-in a lotteryto grantexemptions from compulsorymilitaryservice in
wartime. Thus, whether someone has an equal opportunityto persuade depends less on whetherthatperson has been able to deploy as many resources
as have others than it does on the methodology of the decisionmaker. If the
decisionmakerrelies on careful reasoning, inequalityof resourcesposes less
difficulty. In the campaign finance context, the reformers'assumptionthat
equality of opportunityto persuade requires equal resources makes sense
only if the reformers believe that voters-those being persuaded-do not
carefully reason their way throughtheir decisions. In other words, the reformersmust believe that many of us resemble civic slackers more than we
should.
Moreover, with respect to the civic slacker, the situation may be worse
than a lottery. If civic slackers respondedat randomto political candidates,
their votes would in the aggregatecancel each other out, leaving the overall
outcome of the election unaffected. In other words, they might introduce
some noise or static into the system, but they would not change the bottom
line; the final result would still reflect the choices of politically engaged voters. If, however, civic slackers respond in more predictableways to certain
stimuli, like political advertising,then money can be spent to influence their
choices more systematically and the overall outcome will no longer reflect
the choices of the politically engaged. This seems to be the reformers'real
worry.
How does this affect Dworkin's argumentthat Buckley and its defenders
misunderstandwhat democracy requires? Remember, Dworkin criticizes
Buckleyfor ignoring one of a citizen's two roles in democracy: that of a persuader of others.40 But does it really? Can we separatea citizen's role as
judge from that as persuaderas neatly as Dworkindoes?
39. See Gideonv. Wainwright,372 U.S. 335 (1963).
40. See Dworkin,supranote 9, at 22-24.
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In someways,I thinknot. To the extentyourandmy relativeabilitiesto
persuadeanotherpersondependon how that person makes choices, my
complaintaboutinequalityaims at the rightnessof thatperson'sdecisional
criteria.If you will alwaysbe thebettercandidatein a particular
voter'seyes
becauseyou aretall, blond,andblue-eyedandI am not, is my complaintof
nothavinga fairshotat thatvoter'svoteaimedmoreat youradvantagesor at
thevoter'smisguidedpoliticalcriteria?
Dworkin'scomplaint,then,aboutsome havingless opportunityto persuadethanothersis, at bottom,a complaintaboutthe way manyof us evaluatepoliticalcandidates.Manyof us, he thinks,simplydo not exercisepolitical choice in the informed,deliberate,reasonedway he believesdemocracy
requires.And he is right. SurveyaftersurveyshowsthatmanyAmericans
makeuninformedpoliticalchoices.41But achievingequalityof persuasion
by disrespectingthe ways some votersmakechoicesraisesvery thornyissues. For one thing,it appearsthatwe may be violatingdemocracyin the
verynameof protectingit.
In the last hypothetical,for example,imaginewhatit wouldmeanto respect my equalityclaim. To place me in an equalpositionwith my tall,
blond,blue-eyedopponentwouldrequirethatall candidateshide theirfaces
fromthe public. We wouldhave to deny thosevoterswho choose among
candidatesin this particularway the informationthey deem relevant. But
doingso amountsto imposingon themanunwantedpoliticaldecisionmaking
calculus. Theywantto judgeon thebasisof looks. Theproblemis not that
theymistakenlythinklooksarea goodproxyforpolicy.
Dworkin'sargumentworks similarly. In his view, reformserves to
limit-and thus to equalize-the availabilityof certainpoliticalstimulito
which manyvotersrespond. But denyingthese votersexposureto stimuli
they believe to be importantreallyrepresentsan attemptto disciplinetheir
or at leastto mitigateits overallimpacton the outcomeof
decisionmaking
the election. Reform,in a deep sense, disrespectsthese voters' evaluative
autonomy. It frustratestheirabilityto judge candidatesin the way they
wouldotherwisejudge. The questionis whethersuch decisionaldiscipline
promotesor underminesdemocracyand equalityoverall. Canwe preserve
equalityamongvotersas personsby accordingunequalrespectto theirdecisionalcriteria?Thisis anotherformof the democraticparadoxof campaign
financereform.
III. SOME CHILLINGANALOGIES
Whencampaignfinanceregulationis seen as minimizingthe influence
of certainkindsof votes,it appearsless akinto unabashedly
democraticrules
41. See CARPINI& KEETER,supra note 12, at 62-104.
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like one person, one vote and more akin to practices we now believe offensive to democracy, such as propertyqualifications,pauper exclusions, poll
taxes, disenfranchisementof certain racial and gender groups, and literacy
tests. Unlike these now discreditedpractices, campaign finance regulation
does not formallybar certaingroupsfrom voting. But as I will show, it does
share these practices' centralaim of minimizing the effect of votes resulting
from disfavoreddecisional criteria.
These analogies are meantto be provocative. By offering them, I do not
mean to undercutreform through"guilt by association." Rather, I want to
demonstrate,first, thatthe centralgoal of reform,as I have describedit, has a
longstandingpedigree and, second, thatwe have repudiateddevices that have
pursued this goal not because we. distrustedthe goal itself, but because the
devices had been hijackedto serve other, quite troubling,and antidemocratic
ends. Our rejection of these devices does not in fact reflect any belief that
dependentand uninformedpoliticaljudgment is just as good as its opposite.
Instead,it reflects the belief that the particulargroups these devices operated
to exclude were just as capable as the rest of us of making independent,informed choices. But the question still remains: Should the partial resemblance between campaignfinancereformand these now discreditedpractices
worry us? Is campaign finance reform itself susceptible to the same kind of
misappropriationthatthese otherdevices suffered?
To answer these questions, we must understandthe argumentsthat once
favored these now discreditedpractices. Propertyqualifications, for example, limited the vote to owners of certainamounts of property.42Nowadays
such limits seem designed only to favor one class, propertyholders, at the
expense of others,and that was partof their originaleffect. Originally,however, propertyqualificationswere thoughtto promote a vital goal: ensuring
that voters had a stake in political mattersand exercised independentpolitical
judgment.43 People without property,it was feared, would not care sufficiently about the public realm to form political opinions worthy of respect44
and would be susceptible to pressure from those who controlled their income.45 In this view, only a propertyowner of sufficient means would care
42. At the time of the AmericanRevolution,all Americancolonies except South Carolina
limited the vote to property holders. See ALBERTE. MCKINLEY,THE SUFFRAGEFRANCHISE
IN
THETHIRTEEN
ENGLISHCOLONIES
IN AMERICA478-81 (1905). South Carolina limited the vote to
taxpayers.See id. at 481.
43. See RobertJ. Steinfeld,PropertyandSuffragein the EarlyAmericanRepublic,41 STAN.
L. REV.335, 340 (1989).
44. See WILLI PAUL ADAMS, THE FIRST AMERICANCONSTITUTIONS:REPUBLICAN
IDEOLOGY
AND THEMAKINGOF THESTATECONSTITUTIONS
IN THEREVOLUTIONARY
ERA 211
(Rita Kimber& RobertKimbertrans.,Universityof NorthCarolinaPress 1980) (1973); SAMUEL
ONTHERIGHTOFSUFFRAGE
109 (Boston, Otis, Broaders & Co. 1842).
JONES,TREATISE
45. See Steinfeld,supranote 43, at 340-42.
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sufficientlyaboutpublicaffairsandbe sufficientlyfree fromexternalinfluencesto exerciseindependent
politicaljudgment.46
The secondrationale-freedomfrominfluenceby others-resemblesthe
equalityof influencerationaleofferedby campaignfinancereformers.They,
of course,do not fearthatdirecteconomiccoercionwill overbeara voter's
judgment. Rather,reformersare concernedthatthe voterwill
independent
follow certainkindsof politicalstimulusand fail to exerciseindependent,
deliberate
judgment.Still,thebottomline is similar.Justas propertyexclusionswerethoughtto maintainequalityof influenceamongindependent
votersby preventingone manfromdirectingthe vote of otherswho aredependent on him,47campaignfinanceregulationis thoughtto maintainequalityof
influenceamongengagedvotersby preventingsomefromdirectingthe vote
of otherswho aresusceptibleto massadvertising.
of pauperexclusionsmadesimilararguments.As wage earnSupporters
ersgainedthevote andpeoplecameto see a steadywageas ensuringa sufficient stakein politicalmattersand independenceof judgment,paupersbecamethe next disfavoredclass.48Not only did theynot supportthemselves,
but they dependedon local governmentfor theirneeds. This dependence
presentedobvious opportunitiesfor coercionof a particularlythreatening
kind:49coercionby representatives
of the stateitselfratherthanby otherprivate parties.50Pauperexclusionsthusworkednot only to preserveequality
voters,but also to preventtyrannyat the handsof local
amongindependent
government.
Racialand genderexclusionswere somewhatsimilarlyregarded. Althoughwe now view them, like propertyqualificationsand pauperexcluone social groupto another,these exclusions, as workingto subordinate
* 171.
46. See 1 WILLIAM
COMMENTARIES
BLACKSTONE,
47. Blackstone makes explicit how disenfranchising one group was necessary to promote
equality:
The true reason of requiringany qualification,with regardto property,in voters, is to exclude
such persons as are in so mean a situationthat they are esteemed to have no will of their own.
If these persons had votes, they would be temptedto dispose of them undersome undue influence or other. This would give a great, an artful,or a wealthy man, a largershare in elections
thanis consistentwithgeneralliberty.If it wereprobablethateverymanwouldgive his vote
freelyandwithoutinfluenceof anykind,then,uponthetruetheoryandgenuineprinciplesof
howeverpoor,shouldhavea vote in electingthose
liberty,everymemberof the community,
delegates,to whosechargeis committedthedisposalof his property,his liberty,andhis life.
But,sincethatcanhardlybe expectedin personsof indigentfortunes,or suchas areunderthe
immediate
dominionof others,all popularstateshavebeenobligedto establishcertainqualifications;wherebysome,who are suspectedto haveno will of theirown, are excludedfrom
whosewillsmaybe supposedindependent,
morethorvoting,in orderto set otherindividuals,
oughlyupona levelwitheachother.
Id. at *171-72.
48. See Steinfeld,supranote42, at 335-37.
49. See id. at 344-48, 362.
50. See id.
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sions were oncejustifiedon two othergrounds:First,thatmembersof the
disfavoredgroupssufferedincapacitiesof judgment,andsecond,thateven if
theydidnot,theywereparticularly
susceptibleto outsidecoercion. The first
groundis depressinglyfamiliar.Manythoughtbothblacksandwomenwere
incapableof properlythinkingthroughpoliticaldecisions.51Womensufferedunderan additionaldisability.Manythoughttheirspecialrole within
the domesticsphereof home and familywas incompatiblewith politics.52
Underprevailingideologies,it was believedthatwomen were simplynot
naturallysuitedto politicaldecisionmaking.Whitemen, on the otherhand,
wereconsiderednaturalrulers.53Andshouldthe occasionalblackor woman
actuallybe capableof exercisingjudgment,therewas a dangerthatothers
would overbearit. Manybelievedthatfreedblackswere uniquelyvulnerable to their formermasters,54
or opportunistic
whites,56and
employers,55
51. See 56 CONG.REC. 784 (1918) (recording the statements of Congressman Clark that men
who once supported woman suffrage "were forced to change their views by the force of unanswerable logic"); J.N. BRENAMAN,A HISTORYOFVIRGINIACONVENTIONS
80, 81, 88 (1902) (discuss-
CHAPMAN
CATT&
ing Virginia'seffortsto eliminatethe electoralpowerof blackvoters);CARRIE
ANDPOLITICS
279 (1926) (quoting former President
NETTIEROGERSSHULER,WOMANSUFFRAGE
Taftas saying,"Thelackof experiencein affairsandthe excess of emotionon thepartof womenin
reachingtheirpoliticaldecisions[on certainissues] ... wouldlowerthe averagepracticalsense and
self-restraint of the electorate ...."); WILLIAM
THERIGHTTOVOTE:POLITICS
ANDTHE
GILLETTE,
PASSAGEOF THEFIFTEENTH
AMENDMENT
42, 89 (1965) (discussing the belief that blacks lacked
the necessary characteristicsfor intelligentexercise of the vote); RICHARD
L. MORTON,
THE
NEGROINVIRGINIAPOLITICS,1865-1902, at 151-52 (1918) (discussing the views during Virginia's
1901-1902Constitutional
Conventionthatblackswerea "menacein politics").
52. See 56 CONG.REC. 785 (1918) (recording the statements of Congressman Clark that the
vote would bring women "discontent, sorrow, and pain"); LINDAK. KERBER,WOMENOF THE
REPUBLIC:INTELLECT
AND IDEOLOGY
IN REVOLUTIONARY
AMERICA235, 269-88 (1980) (dis-
cussingthe nation'sgrudgingresponseto women'ssacrificesduringthe revolutionaryera);JUDITH
THE QUESTFORINCLUSION
6-8 (1991) (noting that, although
SHKLAR,AMERICANCITIZENSHIP:
women "were said to be good more frequently than men,... they were not fit to be citizens").
53. One commentator present during the battle over the Nineteenth Amendment described this
position with regard to women:
It maintainsthat woman is dependentwhethershe likes it or not, and all the laws that could be
written never would alter the fact. In the plant, animal, and human kingdom alike, in all the
fundamental,instinctive family relations,the female is bound in the very natureof things to be
dependent. The tyrannyof man, the old common law of England, and acts of parliamentare
not responsible for the fact that the male creatureis always the leader, the protector,and the
rulerof his kind. An act of Congress, it maintains,will not alter the fact that women instinctively seek and glory in the protectionof men, that men will lead, will control and dominate
and rule, and that normalwomen will be contentin the masterfuldominationof their men; that
all the laws in Christendomcould not alterthese elemental instincts. It is not cruel legislation
that has made the female of the species dependenteverywhere,among the flowers of the earth,
the beasts of the field, the birds, the savages, and at the family hearth,and no amountof legislation can undo it. All the king's horses and all the king's men are helpless in the face of elemental instincts.
INTHEUNITEDSTATES249-50 (1918).
KIRKH. PORTER,A HISTORYOFSUFFRAGE
54. See id. at 83-84.
55. See GILLETTE,
supra note 51, at 42.
56. See BRENAMAN,supra note 51, at 80-81.
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womenwerethoughtto be easilyswayedby theirhusbands.57
In thisview, if
blacksand womenwere allowedto vote, they wouldmore likely multiply
theirmasters'or husbands'votesthanaddan independent
voice of theirown.
Racialand genderexclusionsthus sought,as campaignfinanceregulation
does, to promoteequalityamongthosethoughtto be civicallyindependent
andcapableof judgment.
Poll taxeswere also defendedon similargrounds. Althoughpoll taxes
were long employedto frustratesouthernblacksfrom voting,58they were
also oncejustifiedas a safeguardto ensurethatall who voted caredabout
publicaffairs.59If votingcameat a cost,the argumentwent,only thosewho
caredwouldvote, andthe outcomewouldreflectsounderjudgment.60Thus,
in theory,poll taxesworkedto promoteequalityamongcertainengagedcitizensby discouraging
votingon a lark.
Literacytests representperhapsthe best parallelto campaignfinance
regulation.Althoughwe now thinkof literacytests as a shamefulmeansof
excludingblacksfromthe vote-and, indeed,thatwas amongtheiroriginal
purposesin some jurisdictions61-theytheoreticallyserved an important
civic function. In theory,they ensuredthatall who votedcouldreadnewspapers and journals,the primarysourcesof political informationat the
time.62 In otherwords,like the previousdevices,literacytests workedto
disenfranchisethose who might well make politicaldecisionson inferior
grounds,suchas a candidate'slooks,simplepartyaffiliation,or theadviceof
andjudgment
others,ratherthanaccordingto the voter'sown understanding
of the issues. By exclusion,literacyteststhuspreservedequalitywithinthe
limitedclassof engagedvoters.
57. See CAROLEPATEMAN,THESEXUALCONTRACT
39-57, 97-99, 168-72 (1988).
58. See BRENAMAN,
supra note 51, at 89-90 (discussingVirginia'sdesire duringits 19011902 Constitutional
Conventionto use the poll tax to limitsuffrage);see also FREDERIC
D. OGDEN,
THEPOLLTAX INTHESOUTH1-31 (1958).
59. See Harperv. VirginiaBd. of Elections,383 U.S. 663, 674, 677 (1966) (Black, J., dissenting); id. at 684-85 (Harlan, J., dissenting); A.F. THOMAS,THE VIRGINIACONSTITUTIONAL
CONVENTION
ANDITSPOSSIBILITIES
12 (1901).
60. Cf OGDEN,
supranote 58, at 32 (notingthatsupportersof the poll tax believedthat"anyone who will not pay $1.00 fortheprivilegeof votingdoes not deserveto havethatprivilege").
61. See BRENAMAN,
supra note 51, at 89-90 (discussingVirginia'suse of literacytests and
blackvotersduringits 1901-1902Constitutional
poll taxesto disenfranchise
Convention).
62. In examiningliteracytests,the SupremeCourthas stated:
Yet in our society where newspapers,periodicals,books, and other printedmattercanvass and
debate campaignissues, a State might conclude thatonly those who are literateshould exercise
the franchise. It was said last centuryin Massachusettsthat a literacy test was designed to insure an independentand intelligentexercise of the rightof suffrage.
Lassiter v. Northampton County Bd. of Elections, 360 U.S. 45, 52 (1959) (citations and footnote
omitted); see also JONES,supra note 44, at 132-33 (stating that a person must be educated to properly vote).
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Now, of course,campaignfinanceregulationis differentfrom all of
thesenow suspectpractices.It excludesno one fromthe votingbooth..Yet
campaignfinanceregulationdoes frustratecertainvoters from exercising
choice in ways they otherwisewould and minimizesthe overalleffect of
theirvotes if they do.63 In a sense,then,campaignfinanceregulationis to
is to outrightracialexclumanyof thesepracticesas racialgerrymandering
sion. Likeracialgerrymandering,
finance
campaign
regulationdoes not bar
anyonefromvoting,butit doesdilutetheeffectof certainvotes: thevotesof
thosewho respondto politicsin certaindisfavoredways.64Whereasracial
worksby preventingracialgroupsfromeffectivelyaggregerrymandering
their
individual
votes, campaignfinancelimitationswork by supgating
pressingappealsto certainvoters'choice mechanisms.Regulationstarves
these votersof the stimulusto whichthey are most likely to respondor at
leastmakessurethatall the candidatescanmakea roughlyequalnumberof
suchappeals.
So therearetwo hopesin campaignfinancereform.First,insofaras reformdiminishessuchappeals,it will reducethe role of affectin votingand
increasethe role of issues, arguments,policies, and ideas.
correspondingly
Second,insofaras campaignfinanceregulationequalizessuch appeals,it
will limittheiroveralleffect. Thevotesof peoplewho respondin suchways
to politicswill largelycancelthemselvesout.
IV. A MORECOMFORTING
ANALOGY
Thereformers,
of course,neverraiseanyof the foregoinganalogies.But
on
they mightrely anotheranalogythatresonatesmorepositively: the prohibitionagainstvotebuying. In one view, spendinggreatamountsof money
on an electionlookslikebuyingit. If successful,thisanalogywouldbe quite
helpfulto the reformers'case, for vote buyingis universallydiscreditedin
ourpoliticalculture.65
Butdoestheanalogyreallywork?
At first,vote buyingappearsto be a riddle.66It outlawsbehaviorthat
seemsto benefitbothof the partiesdirectlyinvolved. Like any consensual
trade,vote buyingmustimprovethe welfareof boththe buyerandthe seller
in orderto occur.67Thebuyerandsellerwill tradeonly if the buyerprefers
thevote overthemoneyandthesellerprefersthemoneyoverthevote.
63. See text accompanyingnotes34-41 supra.
64. See id.
65. See generallyPamelaS. Karlan,Not by Moneybut by VirtueWon?VoteTraffickingand
the VotingRightsSystem,80 VA.L. REV.1455(1994) (discussingthe dangersof vote trafficking).
66. See id. at 1456-59(discussinghow antitrafficking
laws can actuallyrestrictvoter autonomy).
67. See JAMESM. BUCHANAN& GORDONTULLOCK,THE CALCULUSOF CONSENT270
(1962).
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Commentatorshave disagreed over how to describe the problem with
vote buying. To some, the danger lies in the social vulnerability that alienability would create. Vote sellers would disproportionatelycome from
marginal social groups.68 While selling their votes might improve their
short-termprospects, it is likely to do damage in the long run.69 This is because selling their votes would impair their alreadymeager political power
and therebyreinforcetheir social subjugation.70To some public choice theorists, on the other hand, the problem lies in the imperfectionsthat would inevitably infect the marketfor votes.71 These imperfections,they fear, would
lead to stable coalitions of vote traders,coalitions which would systematically exploit people outside the tradingbloc.72 To others, the problem lies in
the likelihood that vote buyers who succeed in the election will raid the public fisc to pay off their debts.73Finally, to those who worry about commodifying human personality,the problem might lie in the way one's vote is intrinsically connected to one's self. People holding this view might believe
that the vote should be inalienablebecause it is so tied up with the voter's
status as citizen. To allow a person to sell his vote would commodify a centralpartof his identity.
Under none of these theoriesdoes vote buying seem closely analogous to
campaign spending. If anything, increased campaign spending combats
these dangers. By providingmore informationto interestedvoters, campaign
spending (1) allows voters within marginal communities to better protect
themselves; (2) destabilizes vote trading coalitions by providing members
reasons to split from them; (3) provides informationthat may enable voters
to punish officials who raid the treasury;and (4) allows voters to make more
informedpolitical choices and thus better develop and exercise their identities. To the extent campaignspendingprovides more informationof interest
to voters, it can only ease, as opposed to exacerbate,the various problemsof
vote buying.
Under anotherview, however, vote buying is closely analogous to campaign spending. Imagine A sells his vote to B; both A and B are happy. C,
however, has a complaint against both. Although C may still cast a vote in
the election-the same as before A and B traded-the vote means something
different than before. It no longer representsa right to have equal influence
over the outcome of the election because B now effectively votes twice. C's
68. See Karlan,supranote65, at 1458-59.
69. See id. at 1469 (arguingthat,once a politicianhas purchaseda vote, he may be temptedto
thinkhe has dischargedhis dutyto the voter).
70. See id. at 1470-72.
71. See BUCHANNAN
& TULLOCK,
supranote 67, at 275.
72. See id. at 270-76.
73. See RichardA. Epstein, WhyRestrainAlienation?,85 COLUM.L. REV.970, 987-88
(1985).
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say countsonly half as muchas B's. So the valueof C's vote has changed
even if the vote itself has not.74
C couldnot, of course,complainif A andB cast theirvotes independently and happenedto supportthe same candidate. C's rightis a rightto
haveherjudgmentcountequallywithothers'in thevotingbooth,not a right
to controlthe outcomeof the election. ThetradebetweenA andB, in other
words,imposescosts on C not becauseC loses, butbecauseC's entitlement,
the vote, is definedin termsof A andB exercisingindependentchoice. In
thisview of votebuying,it is wrongforA to sell hervoteto B notbecauseof
anyinjuryto A or B, butbecausetheirtradedilutesthevalueof C's vote. In
economicterms,A andB's tradecreatesnegativeexternalitiesbecausethe
valueof everyoneelse's vote is partlydefinedaccordingto the independence
of A andB's voting. A's vote belongsto A, butall othervotershavea right
in it belongingonly to her,just as A hasa rightin theirvotesbelongingonly
to them. In otherwords,whenA sells her vote, she is not only alienating
somethingthatis hers,but also givingawaysomethingthatdoes not belong
to heralone: partof the valueof everyoneelse's vote. Democracy,to most
eyes, doesnot allowherto alienateso much.75
Theprohibitionagainstvote buyingis, in this view, continuouswith all
the now discreditedvotingpracticesdiscussedbefore. It seeks to ensureexerciseof pojustas thosepracticeswereoncebelievedto-the independent
liticaljudgment. Thatwe cling to this prohibitionwhile repudiatingall the
otherpracticesshowsthatwe do not questionthis goal, but do worryabout
thesepractices'misappropriation.
In otherwords,theproblemwithall these
lies
not
in
the
were
saidto pursue,butin theirperversion
practices
goal they
to other,troublingends.
If we conceptualizethe evil of vote buying in this way, campaign
spendingis analogousundera particular
descriptionof how votersmakepoliticaldecisions. To the engaged,activevoter,campaignspendingcanmake
it fundspresentsno ideas,
only a positivedifference.If the communication
arguments,or information,the voterwill discountit. At worst,the added
communication
it provideswill provea distractionor minorirritant,but it
will not impairthatvoter'spoliticalchoice. Moreover,to the extentit does
provideideas,arguments,and information,it can only improvethe voter's
decisionmaking.Forevenif thevoterdisagreeswithall the information
presented,the speech will have bettertested the voter's opinionsand made
74. Cf BUCHANAN& TULLOCK,supranote 67, at 270 (describinghow vote selling changes
the valueof a person'svote even thoughhe didnot participatein the exchange).
75. Cf Karlan,supranote 65, at 1466 (discussinghow thereis a dangerto the groupwhen individualsengagein vote trafficking).
February1998]
CAMPAIGN
FINANCEREFORM
913
strongerthe voter'sjudgment.Whateverextracommunication
moneymakes
hurt
cannot
this
of
voter's
possible,then,
type
decisionmaking.76
On the otherhand,to the unengaged,passivevoterwho neitherfollows
nor caresfor ideas,popoliticalarguments,carefullyanalyzesinformation,
liticaladvertisingmay indeedmakea negativedifference.77Remember,the
fearhereis thatthe unengagedvoterwill respondpositivelyto sheeradvertising stimulus,thathe will vote for the candidatewho has the morelavish
advertisingcampaign,regardlessof whetherthat campaignconveys informationaboutwherethe candidatestandson the majorissues. To the extent
thattheunengagedvoterrespondsthisway,spendingresemblesvote buying.
The engaged,activevoter'svote is dilutedbecauseanothervoterhas abdicatedproper,independent
judgment.The civic slackercedes his vote to the
candidatewith the betteradvertisingcampaign,just as the traditionalvote
seller cedes his vote to the vote buyer. In both cases, followingsomeone
else's politicaljudgmenthasthird-party
effects. It devaluesthevote of those
exercisingindependent
judgment.78
that
the analogybetweenvote buying and campaign
Note, however,
spendingdependson strongassumptionsabouthow some voters do and
shouldbehave. It requires,descriptively,thata significantnumberof citizens-those analogousto vote sellers-be civic slackers:voterswho make
politicaldecisionsin a somewhatcarelessway. It also requires,prescriptively, a strongnormativecommitmentto a particularconceptionof how
people shouldvote. Afterall, accordingto the civic slacker'sown values,
does not cause any
followingpoliticaladvertisingwithoutdiscrimination
it
harm; only injuresfromtheperspectiveof engagedvoters. Forthe analogy
to vote buyingto work, then, democracyitself must impose an engaged,
normativeconceptionof decisionmaking.In otherwords,democracymust
eschewpluralismamongdifferentconceptionsof howpeopleshouldvote.
CONCLUSION:
A NEW STRATEGY
FORREFORNI
Thus,the debateaboutcampaignfinanceregulationconcernssomething
moreandvery differentthanis oftenthought.It is less aboutequality,pure
and simple,and more aboutwhat the vote represents,whetherdemocracy
requirespeopleto makepoliticaldecisionsin a particular
way, andhow peomake
choices.
To
not
all
ple actually
reformers,
political
ways of making
decisions
are
in
their
demands
the indepolitical
equal. Democracy,
eyes,
exercise
of
deliberate
pendent
politicaljudgment.Reformersaimto promote
equalityamongthosewho vote this way by minimizingthe distortingeffect
76. See Dworkin,supranote 9, at 22.
77. See text accompanyingnotes 17-21supra.
78. See text accompanyingnotes26-33 supra.
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[Vol. 50:893
of votes that reflect other decisionmakingprocesses. In the end, to champion
equality among the engaged citizenry, reformersmust disregardthe "rights"
of civic slackers.
The opponents of campaignfinance reform, on the other hand, promote
equality of a differentsort: equalityamong voters who use differentkinds of
decisional criteria. To opponents,the differentways in which civic slackers
and engaged citizens make political decisions are entitled to equal constitutional respect. From this perspective,reformersappearelitist and suspicious
of modem mass politics.79
All of this suggests a new strategy for reformers: honesty. Currently,
their opponents, both on and off the Supreme Court, have the upper hand
partly because their argumentis cleaner, more straightforward,and less internally conflicted. They assume either that voters are largely engaged,
thoughtful, and civically responsible or that the law should equally respect
all ways of making a political choice.80 Reformerscannot win under either
of these assumptions. Under the first, reformerscannot argue that more advertising poses any dangerbecause the voters can be relied on to see through
it. Under the second, advertising can pose no danger because we cannot
normativelydistinguishamong differentvoters' differentuses of it. Reformers must move the public debateto differentgroundsandjoin argumentover
how people should make political decisions and how they actually do. There
is nothing shameful about this. On this issue, they must, moreover, frankly
admit that they are not egalitarians. Democracy is a substantivenotion, demandingmuch, perhapstoo much, from its citizens.
Although it sounds uncomfortablyelitist to say that not everyone's way
of making political decisions should be equally respected, that is exactly
what reformersmust do in order to make their argument,let alone win the
debate. They must persuade us that democracy is, in this one sense, profoundly antiegalitarian,that it cannot equally respect all forms of decisional
autonomy. We must come to see, in other words, that if we have mistaken
democracyas egalitarian,it is only because we have flatteredourselves into
believing thatwe are all the engaged citizens thatdemocracydemandswe be.
The reformers'case is an unflatteringone, to be sure. It views many voters'
civic capacities quite dimly. But if reformersare to make their case, they
must force us to recognize our civic failings. For only by recognizing our
failings can we ever hope to grapplewith and perhapseventually overcome
them.
79. See L.A. Powe, Jr.,Mass Speechand the NewerFirst Amendment,1982 SUP.CT. REV.
243,274,283.
80. See Dworkin,supra note 9, at 22 (describingthe "individual-choice"
argumentagainst
campaignfinanceregulation).