I first want to apologize to those of you in attendance expecting to hear a talk on the moral virtues of capitalism—my original subject. I suppose that I shouldn’t have to explain to a Washington audience how one can become caught up by current issues in a lively campaign, losing concentration on the great and abiding questions of the centuries, but that has happened. As I hope you will see, however, my approach in discussing the campaign finance question is very similar to my approach in evaluating capitalism—to compare markets versus politics or electoral systems as mechanisms for collective decision making by a society. The virtues that I will discuss today of money in politics closely resemble what I view to be the virtues of capitalism—though there are some important additions that make capitalism as an institution even more virtuous—but the themes are very close.
My ambition today is to reanalyze the campaign finance question from a somewhat different vantage than is common, not only in the current discussion of the issue by Senator McCain, Senator Bradley, and others, but also in the two basic approaches to the campaign finance question that dominate the modern debate. One of these approaches is what we might call the campaign finance "reform" tradition—a quite substantial literature that dates from the turn of the century that is highly critical of the role of money in the electoral process and supports extending current campaign finance regulations, eventually toward the substitution of government campaign financing in place of financing directly by the citizenry. The second and contrary approach derives from the values of the First Amendment. It views citizens as possessing a right to make campaign contributions and expenditures as speech and as an incident of citizen association. Thus, it opposes current limitations—perhaps all limitations—on private campaign finance.
These two opposing approaches to the issue can each count many eminent supporters. But I believe that the current debate between them has come to a dead end. The failure of the debate is reflected in the increasing difficulty the Supreme Court has in determining the constitutionality of various campaign finance restrictions as evidenced by the increasing and unusual divisions on the Court. The failure is also reflected in the internally contradictory position of the most prominent current proponent of reform, Senator McCain, whose position on campaign finance possesses something of the tone of an Alcoholics Anonymous dropout: please help us; we cannot stop.
The debate has failed because neither the reform tradition nor the First Amendment tradition illuminates very clearly how the financing of campaigns by private citizens contributes to or derogates from our system of politics. Certainly not every private campaign contribution or expenditure perverts the electoral process. But conversely, why or in what contexts should we view contributions or expenditures as forms of speech? The absolutist position of both sides of the debate has not advanced, and shows no prospect of ever advancing, our understanding of the role of money in politics. It is time for a new approach.
II. The Two Competing Approaches toward Campaign Finance
Let me first describe briefly the two principal contrasting approaches to the campaign finance issue. I will do so summarily, and so I am abstracting a good deal of detail, but I think this description is generally fair:
A. The Reform Tradition
The central organizing thought of the reform tradition is that money—whether in the form of a contribution to a campaign or an expenditure on behalf of a candidate—corrupts the electoral system. There are two principal senses in which money corrupts:
First, a campaign contribution or a campaign expenditure may affect the actual substance of decisions made by public officials. The most obvious example is a bribe that the candidate accepts and in return promises to provide some government privilege directly to the contributor as opposed to providing the privilege on grounds of public merit. This is the easiest grounds for concern about campaign finance: No American can support bribes; hopefully, they are rare.
Less directly, as Senator McCain has emphasized, contributions or expenditures can corrupt by deflecting the candidate’s attention toward matters of interest to the contributor as opposed to the broader interests of the public. At base, this complaint derives from a lack of faith in the ability or commitment of the legislator. That is, the official taking the bribe knows what he or she is doing. Senator McCain’s complaint sees government officials as incapable of determining the interests of the public on grounds independent of the campaign contribution. Thus, one accusation is that money buys influence over the elected official, making the contributor or the contributor’s cause appear more persuasive than, in some abstract sense, it ought to be. Or, even less directly, money can buy access to the official, providing a differential opportunity for the contributor to persuade a legislator who does not independently seek out or confront broader public values.
Yet, there is a second and, in some ways, deeper sense in which the reform tradition views money as corrupting. It is less tangible and most closely resembles an aesthetic sensibility. Even if money does not affect the decisions or views of candidates or elected officials, money has a corrupting effect on the political process. This part of the tradition is conceptually the most difficult and is in greatest conflict with First Amendment concerns. Though this view is often alleged to derive from a conception of political equality, it represents, I believe, an aesthetic aversion to money itself. Here is the argument: Our democracy is structured to treat each citizen as morally and politically equal through the principle of one person/one vote. Given that principle of equality, it is wrong to allow those citizens with greater financial resources to participate more actively in politics through either contributions or expenditures than citizens with lesser resources. Just as eliminating property ownership as a qualification for voting along with other reforms extended the equality principle, so eliminating effects of the possession and expenditure of wealth is claimed to enhance the purity of the political process.
As a pure equality argument, the proposition is problematic. No one really believes that all citizens are or should be exactly equal politically. There are many grounds making citizens unequal in the political realm to which no one would object—some citizens have better ideas, are more persuasive, have developed reputations for good judgment that other citizens respect. Later in this talk, I will emphasize an important addition to this list. The complaint is at heart aesthetic, because the real concern is that, where the possession of money is a characteristic that violates the equality principle, the political process is somehow tainted.
Given these concerns about corruption in its various senses, what is the ideal conception of the electoral process to the reform tradition? We might describe this ideal as a form of perfected group political communication. An election provides an opportunity for each citizen to express his or her political ideals or preferences. These political ideals need not be static but may be developed in the course of an electoral debate among the citizenry over the definition of the public good. The election itself resembles a collecting point that gathers each of these disparate views and transforms them into an electoral outcome. The elected candidate reflects this electoral outcome as a representative or acts on his or her own political principles, unrelated to money, in pursuit of broader public values.
B. The First Amendment Tradition
Now if this is the ideal to the campaign finance reform tradition, one can see that it is not too dissimilar from the ideal to the First Amendment tradition: each citizen expressing political values as fully and completely as possible. The chief difference is that the reform tradition regards the expression of ideas as occurring without regard to money, while the First Amendment tradition regards contributions and expenditures as forms of expression. That is the reason I believe the defining characteristic of the reform tradition is its aesthetic distaste for money.
I confess that I have been somewhat over expansive in describing these First Amendment views as constituting a "tradition." There is, of course, a great First Amendment tradition addressing other topics. In the area of campaign finance, however, the tradition consists largely of assertions that contributions or expenditures are a form of speech. Sometimes these claims are clearly overbroad as if, in motivation and effect, the typical contribution or expenditure were equivalent to the circulation of an 18th-century political pamphlet. The most spirited defense of unlimited private finance by Professor Smith (hilariously nominated recently to the Federal Election Commission) is in large part empirical. Professor Smith claims to show that money spent on campaigns increases information but cannot buy elections—he cites the Huffington and Forbes campaigns as examples—and, conversely, that contribution limits have enhanced incumbents and favored select elites and still have not reduced the amounts raised and spent on campaigns. In a similar vein, Judge Buckley has criticized limits, emphasizing his own electoral experience and that of other outsiders such as Senator McCarthy. These arguments, however, remain chiefly empirical—to some extent, even anecdotal—in a field in which empirical demonstration and proof are extremely difficult to produce. The arguments lack an organizing framework and, as a consequence, have not been sufficient to convince the reformers.
C. The Nature of the Debate and Its Failure
That the debate between these two traditions reduces to a debate over characterization—contributions are corrupting versus contributions are speech—indicates why the debate is not illuminating and, equally, why the Supreme Court has such a hard time with the question. As is well known, in Buckley v. Valeo, the Court distinguished between contributions and expenditures and also distinguished between contributions to candidates and contributions to broader causes or parties—soft money. The Court held, and continues to hold, that it does not violate the First Amendment to constrain contributions to candidates, first, because candidate contributions come the closest to bribes, and second, in the closest I can find to a theory of campaign contributions, because the Court asserts that candidate contributions have a principally symbolic importance. Thus, in Buckley, a 1976 case, the Court approved a $1,000 limit on candidate contributions; just months ago in Nixon v. Shrink Missouri Government, the Court reaffirmed a nominal $1,000 limitation that would equal $378 under Buckley in real terms. Presumably, any limitation that preserves a symbolic meaning satisfies this constitutional standard. And to the Court, all other forms of campaign finance—expenditures and soft money contributions—because they seem more indirect than bribes, are constitutionally protected forms of expression and political association.
But no one can believe that this is a satisfactory answer, and it is hardly satisfactory to members of the Court themselves. The free speech absolutists and the reform absolutists remain. Problems that have been reduced to debates over characterization cannot easily be resolved nor, surely, compromised. In the Shrink Missouri Government case, Justice Stevens declared boldly, "Money is property; it is not speech," a proposition that can be disagreed with but cannot be refuted—any more than its converse. Neither he nor those who oppose his view gives us any reason to understand why money in politics is better considered as property or as speech. It is time for a new approach.
III. Elections and Markets
I would like to begin the analysis, first, by endorsing entirely the conception of the ideal electoral process that I identified both with the reform and the First Amendment traditions: that an election ought in a normative sense to reflect a gathering together—a collecting point—of the political ideas and values of the citizenry. What I would like to do is to compare this ideal of the electoral process to the process of the market.
In any society, the two principal mechanisms for the collective decision as to how to distribute the society’s resources are the society’s political system and its economic system or the character of its markets. That is, putting aside the individual actions of any citizen, in terms of collective decision making—decisions or allocations of resources implicating some larger set of citizens—there are only two alternative processes: markets and politics. In the United States and most Western nations, we constrain markets by civil law, antitrust law, and some direct regulation, all designed to maximize citizen economic welfare, and we constrain political decisions in terms of process by our Constitution and our system of democratic elections.
For purposes of evaluating the issue of campaign finance, the constraints on our electoral process are most important. As collective decision making mechanisms, there are some similarities and many differences between markets and elections. In describing an election as a collecting point for the ideals and values of the citizenry, we see a similarity. Markets are also collecting points, whether we mean locational markets common in the developing world, markets such as the New York Stock Exchange, or even shopping malls, that maximize choices at the most competitive prices by concentrating and most effectively bringing together sellers and buyers.
The operation of elections, however, differs structurally in systematic ways from the operation of a market. It is my view that, by examining carefully these differences, we can gain a better appreciation of the potential role of the private financing of political campaigns.
Although this list is not meant to be exhaustive, I believe three structural differences between elections and markets are important for evaluating private campaign finance:
First, our electoral process necessarily imposes a set of geographical limitations on the electoral expression of the political views of citizens. According to our electoral process, each citizen is limited to voting within a constrained set of political jurisdictions—city, district, state. These jurisdictions are defined chiefly by geography, which has relevance for some set of public issues but is otherwise arbitrary from the standpoint of political principle. For example, as a resident of Connecticut, the electoral process alone affords me no possibility of registering my support for political or ideological positions of a congressperson or senator from, say, California, however strongly I may support his or her views. For issues totally local to California, my views may be irrelevant. But surely at the level of Congress or the Senate, the positions that the politician takes will have effects extending beyond the borders of his or her state. Even the exception for purely local issues is problematic. What if I believe that the policies implemented by, say, the mayor of Indianapolis will provide a guide to the reform of my own local government?
There are some geographical limitations on market activity as well, but they are characteristic generally of more primitive economic systems. That is, economic growth and development occur most rapidly where markets are opened up, which is to say, where it is made possible for citizens of one location to take advantage of the greater differential productivity of citizens from afar. Put less abstractly, a Connecticut citizen may be prohibited by our electoral process from providing his or her vote to enrich political decision making in California but is not prohibited from providing his or her market talents to California citizens. Companies and citizens from California can easily gain through the market the advantage of helicopters made in Connecticut or Yale memorabilia; they are prohibited by our electoral process from gaining political advantage in an election of any Connecticut political expertise, passion, or commitment.
A second structural difference between markets and elections is that elections are necessarily time-bound, in the sense that we cannot have a continuous registering or re-registering of citizens’ views through elections. We stage elections only periodically—two years, four years, six years. This means, as a general matter—and it is well recognized in the political science literature—that there is a time gap between the registering of political views by the vote and the execution of political tasks by the person elected.
There are several implications of this electoral time gap. First, if citizens’ views change or if the plurality that dominates the electoral body changes, there is no electoral mechanism for registering that change during the term of the elected official. Secondly, given elections by mere plurality, there is an accountability problem where an official elected by one plurality seeks reelection from a different plurality, disappointing the expectations of the first set of electors. This is the problem of campaign promises that are never carried out.
Here again, our market system operates differently. There are very few products that are repurchased continuously, but as the dominant set of consumers of a product alters the product features it most intensely demands, manufacturers under competition can change the product design to best meet the new needs. Manufacturers are not constrained artificially to two-year, four-year, or six-year replacement terms. In addition, not the market itself, but legal constraints on market transactions, reduce the accountability problem through our system of warranty law. There is no similar mechanism in our electoral system. More simply, unlike the market, it is very difficult to enforce promises made during an election.
The third and probably most important structural constraint on the electoral process is that we allow each citizen only one vote per election and we weight that vote equally to the votes of all other citizens. There are many important reasons that we do so, and I am not challenging the principle of one person/one vote. The question, rather, is the implication of this constraint on our political environment more generally.
The market operates in a substantially different way. Market outcomes are determined entirely by intensity of demand or preference. There is some influence of the level of aggregate wealth, but markets for very few products are dominated by the rich. Market outcomes, instead, are determined by different intensities of demand by members of the consuming public.
Elections governed by the principle of one person/one vote suppress all intensity of political preference beyond that bare minimum necessary to lead the citizen to vote at all. There are numerous implications of suppressing intensity of political preference, many well known from the public choice literature. The electoral problems of vote cycling and indeterminacy described by authors from Condorcet to Arrow to Samuelson all derive from this feature of elections. Perhaps most serious is the potential coercion of non-mobilized minorities, which allows electoral pluralities—like market monopolies—to redistribute resources despite a negative effect on aggregate welfare.
Again, markets are entirely different. Economic markets are rich because they are not dominated, nor, surely, structurally constrained, by mere plurality preferences. Imagine that the only products and services available in the market were those preferred by the median consumer. Markets, instead, provide an outlet for the demands and preferences of any set of citizens willing to pay the money to express them. These different demands and preferences are what allow the principle of comparative advantage its greatest breadth and what provide for broadscale economic growth.
As mentioned earlier, perhaps the most difficult issue with respect to campaign finance is how to think about equality. Some commentators support constraints—even the abolition—of campaign contributions by private citizens on equality grounds: If no individual citizen can contribute, then each citizen will be treated equally by definition. I believe that normatively we cannot accept this position. I believe that we want the richest and most vibrant political environment that we can obtain and that we forsake a rich political environment by tolerating structural constraints on the intensity of political views. Given our commitment to the ideal of one person/one vote in elections, citizen involvement in the electoral process—the campaign—becomes the central mechanism for registering intensity of political viewpoint.
IV. The Market Analogy Extended—Implications of the Approach
To extend the analogy to the market somewhat further, the structural limitations on the electoral process described above—limitations of geography, limitations of time, limitations on registering intensity of political feeling—magnified by the limitations on the extent to which citizens can employ financial contributions to register the intensity of their political views, reduce our political system to the equivalent of a primitive, near barter-like, economy.
The geographical constraints that limit a citizen’s vote to candidates within his or her city, district, or state prohibit the political views of the citizen from Connecticut from enriching the political environment of California. In the marketplace, though from Connecticut, I can encourage greater investment in a particular California vineyard or tomato garden or encourage the expansion of product choices by a Yosemite clothing maker. The possibilities of my making political investments that might increase or enrich choices in California are not closely similar.
Toward the same point, the accountability and shifting plurality problems that derive from the time-gap of limited periodic elections are very difficult to overcome with in-kind contributions. As mentioned earlier, Professor Smith claims to observe greater entrenchment of incumbents following the introduction of campaign contribution limits. The observation is not implausible. Incumbents, and especially repeat incumbents, have had greater opportunities than challengers to establish reputation and good will. Given limitations on campaign finance, it is differentially difficult for challengers to invest to build up a brand name or good will equivalent to that of the incumbent.
Most importantly, the principle of one person/one vote, along with the legal limitations on campaign finance, reduces dramatically the ability of any citizen, within a district or without, to register intensity of political support for a candidate or a cause. Participation must take the form of the modest campaign contribution allowed by current law or an in-kind contribution of time or energy. In market terms, these political constraints reduce the gains from trade—here, the trade of political commitment—and suppress comparative advantage.
Again, I accept that the principle of one person/one vote is an important affirmation of the political and moral equality of citizens—in the election itself. In the debate that precedes the election, however, there is no normative value from suppressing—leveling—intensities of political view by limitations on private finance. The political views and ideals of citizens are not distributed equally—nor should they be. In a vibrant and lively democracy, the political views of citizens vary dramatically in intensity from indifference to some issues to passionate commitment to others.
I believe that the analysis of campaign finance has been unduly narrowed by imagining that campaigns in our democracy represent battles over pure ideas. A pure idea can be transported across jurisdictions nearly costlessly. If a citizen from, say, New Jersey conceives of a pure idea—say, E = MC2—citizens in California can take advantage of it without regard to the electoral process.
But political campaigns are seldom, if ever, about ideas. It is difficult to identify any candidate at any level who is known for a pure idea. Given plurality elections, the general views of opposing candidates hardly differ substantially. A campaign, instead, is better thought of as an exercise in mobilization in which the most successful result is achieved when the mobilization builds on itself. Campaign contributions and the expenditures made possible by them provide the mechanism for achieving mobilization.
Limitations on private political contributions thus impoverish, rather than enrich, our democratic political environment. Since I am not allowed to vote in California, apart from the modest contribution I am allowed, any contribution to the California political debate will be highly unlikely unless I feel extremely strongly about a particular issue. The geographic limitations of our elections and our campaign finance constraints are the equivalent of high tariffs or a prohibition on trade in out-of-state political views.
It has been noted that constraints on financial contributions force citizens who feel strongly about a candidate to express support by a form of in-kind contribution of time and effort. I do not mean in the slightest to disparage in-kind political efforts of this nature, and, when younger, I have gone door-to-door during campaigns. But there is a terrible primitiveness to constraining citizens to in-kind work on behalf of the political ideals in which they believe. And the primitiveness becomes increasingly telling to our political debate as skills and abilities develop broadly across the society. There is a reason that it is largely high school and college students, and other citizens without full-time jobs, who are the foot-soldiers of modern political campaigns. In-kind work for a campaign for any citizen is a function of the level of political passion and the opportunity cost of the effort. If the opportunity cost is very low, the level of political passion need not be very high to lead one to volunteer.
Put differently, there is no reason to believe that high school and college students are the citizens of our society with the deepest political views. Given current limitations on campaign contributions, a professional who feels strongly about a candidate is systematically disenfranchised in comparison to citizens for whom the opportunity costs of in-kind work are lower. But the problem goes beyond unequal treatment. Our democracy is weakened by this disenfranchisement. Limitations on campaign contributions rob our democracy of the expression of intensity of political support by shackling politically-charged citizens—and the metaphor is not wrong, we treat these citizens much like we do the prison population—shackling them to the performance of low-grade, manual labor.
I am not merely making the points here that unlimited private finance will provide a richer political environment than limited private finance or that privatized finance will be richer than government-provided finance, though I believe that both are true. My claim is stronger: There are systemic obstacles in our electoral system that prevent citizens from fully registering their political views. These are the constraints of geographical limitations on the franchise; time limitations because of periodic elections; and the obstacle imposed by the equally weighted vote of the inability to register intensity of political views. We might think of these limitations as electoral failures, corresponding to the conception of market failures.
Again, these obstacles are systemic and cannot be realistically repaired by amendments to our electoral process. These limitations, however, can be overcome by campaign contributions. Campaign contributions serve to repair these electoral failures. Through contributions to campaigns, a citizen from Connecticut can register his or her political views in California and contribute to political mobilization. Contributions to campaigns or promises of future contributions can increase the likelihood that a candidate will honor his or her election promises, just as a bond enforces performance of a commercial contract. Contributions can provide an investment in the brand name or good will of a challenger to an incumbent or to a candidate from a minority party.
Most importantly, campaign contributions can allow those citizens who feel intensely about a candidate or a political issue to register that intensity. This approach, I believe, is richer than simply advocating that money is speech, because it shows how money is related to speech. The $1,000 limitation on contributions to candidates means that no citizen is easily able to register any level of intensity of commitment beyond that which the citizen might feel for, say, four good tickets to the New York Knicks or two round-trip airfares to Colorado. Our political debate in this country deserves to be richer than that.
The argument here extends beyond the First Amendment position that contributions or expenditures on behalf of a candidate ought to be regarded as an incident of personal freedom. My argument is that, regardless of claims over personal rights, if we, as a society, want the richest and most vibrant political environment, we need to empower and encourage citizens to express their political views and commitments through political contributions. Based on democratic values alone, we should free the means of political expression from these leveling prohibitions on campaign finance.
Of course, there are many subsidiary problems in our current regime. For example, the distinction between contributions and expenditures and between contributions to candidates and to causes has a very weak conceptual base. Given these electoral failures, the distinction leads to a substantial shifting of the means of registering political support, indefensible from the broader view. For example, the candidate contribution limit necessarily shifts contributions toward soft money contributions to parties or to broader causes. Current reform proposals universally condemn soft money because of its unrestricted nature. But there are many electoral advantages from soft money contributions. A soft money contribution allows a citizen to express support for political principles of greater generality than reflected in any single politician’s views. It also allows the citizen to delegate to political professionals determination of how the money most effectively can be spent, much like a contribution to the United Way.
It should not be surprising, thus, that Professor Smith has found that the amount of money spent on campaigns has increased despite current limitations. The magnitude of campaign contributions derives from the level of political commitment. The expression of that commitment can be suppressed and redirected, but it cannot be extinguished. Much like the operation of an underground economy in a totalitarian state, the political energies of our citizens will seek an avenue of expression.
The deepest—as I have described it, aesthetic—concern about unleashing campaign finance by private citizens is the fear of taint. Without doubt, our democracy idealizes political debate in terms of the broader public good, which is not unrelated to money, but is strictly so only in a perfectly competitive world. Will broader forms of private campaign finance taint the political process, reducing the interest and participation of the citizenry?
We might think about this question by comparison to other public-minded, non-self-interested activities in our society, such as charitable giving. Just as we, as Americans, value and hope to promote political participation, we value and hope to promote charitable giving. In-kind work for charities is particularly valued but, like politics, is increasingly difficult as skills and time demands expand.
The issue, though, is similar. We currently have a regime of unlimited private finance of charities. Individuals can contribute as much as they want to any charity of their choice. Does it taint charitable activities to have them so implicated with money? Are citizens less willing to participate with charities because they know other citizens are giving financial donations? Would charitable giving in our society be greater or less with a $1,000 per person contribution limit to any charity? The dollars aside, the dollars, would the extent of charitable feeling be greater or less if a citizen knew he or she could contribute no more than $1,000 per charity? I believe that, in each of these respects, charitable activity would be substantially reduced if the expression of charitable feeling through contributions were suppressed, and I believe that the analogy to political participation is very close.
The central implication of this approach is that all constraints on political contributions or expenditures should be removed. But there do remain some outstanding issues. The question of corporate contributions is a difficult one. Should we regard a contribution by a corporation as equivalent to a contribution by an individual citizen? I don’t have a clear answer to this question, in large part, though, because we have failed to develop a rich conception of what a corporation and its employees and officers are and whether it makes sense to treat a corporation as a form of democratic institution aggregating the desires of those who work within it.
In advocating the elimination of campaign finance constraints, I do not neglect corruption or rent-seeking or, more precisely, the distribution of public favors on grounds other than merit or the broader public good. But I think that we ought to think about political corruption and rent-seeking in a different way. As any economist will tell you, any activity that generates societal costs can be controlled either by regulating inputs to the activity or its outputs. Our current system of campaign finance control suppresses all inputs to the political process—campaign contributions—on the grounds that some of those inputs may be related to corruption or rent-seeking. These controls have the necessary effect of suppressing, at the same time, a vast range of political feeling that might otherwise add fullness and depth to our nation’s political life.
The alternative method is to regulate outputs. I believe fervently that we must maintain our commitment to controlling corruption and rent-seeking: the extent to which our politicians are able to divert public values and ends for their own purposes by distributing public favors. The most effective way to limit corruption is to constrain the ways politicians can reward their contributors. The most effective way to limit rent-seeking is to eliminate the rents. The most important effort toward those ends is to reduce the size and scope of government.
Either form of regulation may be overly broad. But, surely, as between the regulation of contributions, which, in the process, suppresses the ability of citizens to register their political views, and the regulation of government favors, which, in the process, suppresses some set of government programs, it is the government largesse, rather than the political debate, that ought to be sacrificed.
In any consideration of campaign finance "reform," we must strive to create the most vibrant and dynamic political system. We must not suppress the registering of political or ideological enthusiasm now constrained by failures of the electoral process.