Game Over for Campaign Finance Reform?

moneyshirt.jpgCommenting on today’s decision on campaign financing (WRTL v. FEC), Richard Pildes highlights how a seemingly technical insistence on the protection of “issue ads” may undo the whole edifice of regulation:

[T]he analogy to the regulation of pornography is hard to miss here; there, the Court held that as long as sexual material had any other “redeeming social value,” the First Amendment protected it. In consequence, we saw the birth of x-rated films that offered just a bit more than unadulterated scenes of sex. Now, we are likely to see a return of the kinds of ads we saw before McCain-Feingold: ads that contain a fig-leaf of reference to issues that is just enough to give them constitutional protection, even if the ads are close to hard core efforts to influence election outcomes.

Expect more Swift Boatings and character assassinations, bedizened by fleeting mentions of “the issues.”

Commentators in the “thick of it,” far more knowledgeable on the topic than me, have declared WRTL a “sea change,” effectively repudiating the landmark McConnell decision that was only reached four years ago. But I have a sense the seeds for WRTL were sown about 30 years ago in Buckley, the leading case on campaign finance. Consider this ringing declaration from the 1976 Buckley opinion:

[T]he concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment.

As soon as that point is capitulated, campaign finance reform becomes (to borrow a Borkian turn of phrase) a policy at war with itself. We already have anti-bribery laws to prevent quid pro quo exchanges of dollars for favors. Campaign finance regulation’s raison d’etre is to prevent the conversion of economic into political power. Buckley declared that rationale unconstitutional, and no advocacy is brilliant enough to evade those confines. Trying to argue for effective campaign finance regulation within the confines of Buckley is like trying to compose an epic in a villanelle: the form itself defeats the meaning one would give it.


I’m not saying that the campaign finance system that the Roberts court is undoing accomplishes nothing. At least we know who is giving what to whom . . . and I expect that will be the next target of the anti-reform crowd, “extending” NAACP v. Button.

But I am saying that the Supreme Court’s message today is clear for reformers: give up. Even the most timid reforms will end up constitutional impossibilities. Reformers may try to establish “floors” of public spending to give disadvantaged candidates some publicity. But as I explain in a forthcoming piece in the Illinois L. Rev., we can expect those floors to rapidly become meaningless as unrestricted spending escalates. Modern campaigning is largely a struggle for issue salience, a positional good whose value is inevitably relative. We should also expect public funding itself to be attacked in so-called issue ads. Anything goes in the brave new public sphere of WRTL.

The bottom line for those who care about democracy: focus on substance, not rules of the game like campaign finance. They may be intimately connected, as Michael Dorf suggests. But reform is futile as long as the current Supreme Court stands ready to eviscerate any effort to level the campaign playing field.

Photo Credit: Rob Lee/Flickr, Money Shirt.

Frank Pasquale

Frank is Professor of Law at the University of Maryland. His research agenda focuses on challenges posed to information law by rapidly changing technology, particularly in the health care, internet, and finance industries.

Frank accepts comments via email, at pasqresearch@gmail.com. All comments emailed to pasqresearch@gmail.com may be posted here (in whole or in part), with or without attribution, either as "Dissents of the Day" or as parts of follow-up post(s). Please indicate in your comment whether or not you would like attribution, or would prefer your comment (if it is selected for posting) to be anonymous.

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8 Responses

  1. Paul Gowder says:

    So when do we start talking amendment? As much as I hate the idea of tinkering with the First, this situation is so intolerable that it has to be considered.

  2. Frank says:

    Given what Levinson has written about our broken constitution, I doubt an amendment would go through…there are just too many vested interests who can get 25% of the states to adhere to the status quo.

    So that’s why I focus on the move from process to substance: find the issues and candidates you care about and campaign for them.

    But I was remiss not to mention the one practical way out of this mess that I now see: David Gamage’s proposal on taxing contributions to pay for public funding:

    http://www.yalelawjournal.org/pdf/113-6/GamageFINAL.pdf

    This idea of taxing tiering of advocacy is analogous to the ideas I lay out here, and which Volokh appears to concede as potential hedges on his “right of medical self defense”:

    http://concurringopinions.com/archives/2006/11/notes_on_medica.html

  3. BR says:

    Public financing of campaigns seems the most sensible remaining option for reformers. The idea would be to swamp the value of private campaign contributions (without barring them, and thus raising these constitutional problems)by giving campaigners enough funds to do everything they need to do to put together a competitive campaign for the relevant office. The cost would be so much smaller than the cost society pays in government benefits handed out as return favors for private campaign contributors, it would be a very good investment. The public recognizes that guys like Perot or Bloomberg are less beholden to campaign contributors because they can afford to fund their own campaigns — the idea is that candidates should be able to fund their own campaigns generally with public financing. This idea did actually seem to work pretty well for presidential elections for a brief period after Watergate, but the public financing has not kept up with the costs, and its need to be extended to Congress and state and local offices.

  4. Frank says:

    BR: I would like to think that a possibility. My suspicion is that private interests will eventually swamp whatever public funding is raised. That’s why I hope that the system of taxation of donations mentioned in the Gamage article cited in my comment above gets implemented; the only way to be sure that public funding is reasonably proportional to private funding is to tax private funding in order to pay for public funding.

  5. AYY says:

    “Even more Swift Boating. . . ” (Sigh) Not sure what you think “Swift Boating” means, but it does not have a negative connotation. Perhaps you are thinking of Dan Rather.

  6. “even if the ads are close to hard core efforts to influence election outcomes.”

    I guess I’m supposed to be alarmed by that prospect but strangely I’m not – even though I realize a crazed Michael Bloomberg-type could go on a spending spree. Anyway, I find it somewhat amusing that the Supreme Court is being criticized here for not respecting a 4 year-old precedent while at the same time noting ominously the (unfair) restraints imposed by a 30 year old precedent.

  7. M. Bloomberg says:

    I never understand pro-campaign finance partisans. Even with campaign finance regulations in place, one rich guy can dominate the field by funding himself. Rather, with campaign finance regulations in place, rich guys have an unnatural advantage, because the people cannot combine in corporate entities or unions to raise money and have voice. Ok, you say, but how many neighborhoods make a corporation with each neighbor as a shareholder? The reality is different than theory. Fine: then the bottom-line is that either way, there are rich guys out there on the left and rich guys out there on the right. Instead of complaining about campaign finance, just get Warren Buffett or Bill Gates or George Soros to run for office. Or, say, Al Franken. But all this talk of repealing the First Amendment and regulations that infringe on free speech is downright anti-democratic.

  8. Brett Bellmore says:

    I think it is somewhat revealing that, from Pew’s original astroturfing of campaign ‘reform’, to the above backhanded acknowlegements of the unpopularity of public financing, (Look at how few make that check off, even when it costs them nothing!) that this ‘reform’ is something that has to be shoved down the peoples’ throat whether we like it or not.

    You people are the essential “useful idiots” in a drive by incumbant office holders to silence critics and fatally handicap challengers. It’s simply amazing how resistant you are to recognizing the fundamental, inescapable, conflict of interest inherent in allowing officeholders in a democracy to regulate what may be said in an effort to unseat them.

    “Congress shall make no law”; As the expression goes, what part of “no law” don’t you understand? Apparently the “no” part…