The myth of the level playing field: knowledge, affect, and repetition in public debate.

• Author: Sheff, Jeremy N.

1. INTRODUCTION II. WHY LEVEL THE PLAYING FIELD? THE ARGUMENT FOR REFORM III. CAMPAIGNS, CASH, AND THE POWER OF REPETITION A. Does Campaign Spending Matter? B. How Does Campaign Spending Work? IV. A RATIONALE FOR REFORM? EVALUATING EQUALIZATION PROPOSALS A. Undoing Buckley--Expenditure Limits B. Matching Funds--Raising the Playing Field C. Equal Dollars per Voter Aggregation at the Expense of Deliberation V. CONCLUSION: EQUALITY VS. RATIONALITY I. INTRODUCTION

   [I]t is said that Cato contrived to drop a Libyan fig in the Senate, as he shook out the folds of his toga, and then, as the senators admired its size and beauty, said that the country where it grew was only three days' sail from Rome. And in one thing he was even more savage, namely, in adding to his vote on any question whatsoever these words: "In my opinion, Carthage must be destroyed. " In this way Cato is said to have brought to pass the third and last war against Carthage.... (1) Justice Holmes famously asserted that "the best test of truth is the power of the thought to get itself accepted in the competition of the market." (2) This empirical claim about the relationship between the truth of a proposition and its popular acceptance is the quintessential crystallization of a widely espoused instrumentalist account of the right to free expression. Ultimately, the free exchange of ideas is considered a means to the end of rational and optimal decisionmaking in a deliberative democracy. (3) While such instrumentalist arguments have been levied against government interference in the "marketplace of ideas" for centuries, (4) the industrialization of the channels and scale of communications in the twentieth and twenty-first centuries has led many to doubt the ability of laissez-faire First Amendment policy to secure its promised benefits. Reasoning backward from the ends of instrumentalist First Amendment theory, reformers argue that the ability of certain powerful private actors to manipulate the scope and content of debate requires some qualification of Holmes's conclusion. Specifically, reformers contend that truth can only emerge from competition on a level playing field and that, left unchecked, the disproportionate wealth of certain speakers will allow them to exert a greater influence on public debate (and, by extension, public policy) than less endowed citizens and groups, in violation of the fundamental democratic principle of political equality. (5) Implicit in this argument is a claim that laissez-faire First Amendment doctrine is causing our democratic processes to generate policy outcomes that are inferior to those that could be achieved through more muscular regulation of public debate. (6)

   Modern First Amendment instrumentalists have proposed various departures from existing doctrine as a means to the end of optimal, rational, egalitarian self-government. Among the most hotly contested of these arise in the area of campaign finance law. Well-meaning reformers lament rigid constitutional barriers to creative measures that would, in theory, increase the diversity of viewpoints represented in political debate while privileging no viewpoint over any other, resulting in a better-informed citizenry and, therefore, better decisionmaking, better government, and better policy. Chief among these barriers is the widely disparaged yet remarkably stable contribution/expenditure distinction of Buckley v. Valeo (7) and its progeny. By attempting to place all candidates, citizens, or interests on an equal footing in terms of the amount they can spend on political campaigning, reformers hope to design a marketplace of ideas from which truth can reliably emerge victorious.

   This Article argues that the categorical assertion of Justice Holmes's dissent in Abrams is indeed descriptively inaccurate, but that the relationship between popular acceptance of an idea and its truth is too complex and fraught to be reliably controlled by blunt field-leveling measures in campaign finance regulation. As a result, reform proposals tend to focus on the wrong targets, potentially exacerbating the conditions they purport to alleviate. Reformers who believe that unsound policy is being generated as a result of an improperly skewed marketplace of ideas would do better to explore the dynamics of political decisionmaking and persuasion in an effort to determine why policy outputs fall short of the perceived ideal. The political science, psychology, and marketing literatures provide helpful guidance in this regard, suggesting that finance regimes play less of a role in campaign outcomes than do background levels of knowledge and commitment. Investigation of these literatures suggests that the level playing field envisioned by instrumentalist reformers, in which all speakers or points of view have equal fiscal resources for the propagation of their arguments, is anathema to those reformers' ultimate goals. Put simply, equality of resources is not a useful means to the end of enlightened policy in our democracy.

   Part II of this Article sets up the elements of the problem to be examined: whether campaign finance reforms, and particularly measures to equalize campaign expenditures, are normatively desirable from an instrumentalist point of view. Part III explores the relevant political science, psychology, and marketing literatures in an effort to explain the dynamics of knowledge, persuasion, and action in public debate, both in general and in the specific context of electoral campaigns. Part IV applies the social science findings of Part III to the questions outlined in Part II. Part IV goes on to argue that equality-minded reforms are unlikely to influence the outputs of the political process in a way that would satisfy reformers' goals and are in fact more likely to aggravate the conditions of which reformers currently complain. Part V concludes the Article with some discussion of potential alternative means to the social ends of instrumentalist free speech policy.

2. WHY LEVEL THE PLAYING FIELD? THE ARGUMENT FOR REFORM

   The project of this Article is to address only one of the many instrumentalist rationales underlying campaign finance reform agendas: the political equality rationale. (8) Since the Supreme Court (in)famously announced in Buckley v. Valeo its view that "the 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," (9) equality-based arguments in favor of campaign finance reform have been at a disadvantage relative to arguments addressing the Court-approved, anti-corruption justification for reform. (10) Nevertheless, equality remains a central concern of reformers, who often either assail the Buckley rule as misguided or repackage equality concerns as corruption concerns. (11) Examples of equality-inspired proposals range from radical "equal-dollars-per-voter" voucher regimes (usually entailing explicit abrogation of Buckley) (12) to more moderate (and legislatively successful) voluntary incentive-based systems of equal public financing. (13) What these proposals have in common is their goal of preventing economic inequality--a natural and accepted byproduct of a capitalist economy such as ours from being leveraged into political inequality--a normatively unacceptable condition in a purportedly democratic society like ours. (14)

   It is not always clear from reformers' arguments how campaign financing translates economic power into political power; indeed, the mechanism often appears to be largely assumed. (15) This assumption has crept into the analysis of the Supreme Court (16) and remains a background principle of debates about campaign finance reform. Professor Daniel Ortiz argues that the assumption that relative levels of campaign spending influence political outcomes "requires, descriptively, that a significant number of citizens ... be civic slackers: voters who make political decisions in a somewhat careless way." (17) He further argues that campaign reform measures seeking to cure deficiencies in policy that result from the political participation of such "civic slackers" imply "a strong normative commitment to a particular conception of how people should vote ... [, that is, through] the independent exercise of deliberate political judgment." (18)

   Professor Ortiz characterizes reformist arguments that rely on these two premises as potentially inegalitarian or elitist but encourages reformers to make them explicit. (19) This Article will take the argument one step further. It will analyze, descriptively, the dynamics underlying voter decisionmaking, as understood by the social scientists who study them. Based on this analysis, it will then argue that, given the two necessary premises of reformist arguments (the descriptive belief in an uninformed, unmotivated electorate and the normative belief in the superiority of deliberative political decisionmaking), equality-based campaign finance measures are actually detrimental to reformers' ostensible goals.

   Considering the importance to reformist arguments of the assumption that private campaign financing allows economic power to be translated into political power, the factual basis for the assumption has received surprisingly little scrutiny in the legal academic literature. As noted above, Professor Ortiz has exposed the basic model of the electorate necessary to uphold the assumption (20) and has elsewhere noted that this "civic slacker" model is supported by empirical research. (21) In a recent symposium, some of the contributors also discussed the empirical underpinnings of campaign finance regulation in ballot measure campaigns. (22) Apart from these early steps, however, the legal academy has given little attention to the two central questions begged by equality-based reformist arguments: (1) do political campaigns actually influence the outcomes of democratic processes, and...