Unfree Speech: The Folly of Campaign Finance Reform & Voting with Dollars: A New Paradigm for Campaign Finance.

• Author: Raskin, Jamin B.

UNFREE SPEECH: THE FOLLY OF CAMPAIGN FINANCE REFORM. By Bradley A. Smith. Princeton: Princeton University Press. 2001. Pp. xiv, 286. Cloth, $26.95; paper, $17.95.

VOTING WITH DOLLARS: A NEW PARADIGM FOR CAMPAIGN FINANCE. By Bruce Ackerman and Ian Ayres. New Haven: Yale University Press. 2002. Pp. x, 303. $29.95.

The 2001 passage of the Bipartisan Campaign Reform Act ("BCRA"), popularly known as "McCain-Feingold," set the stage for a momentous constitutional conflict in the United States Supreme Court in the 2003-04 Term. Among other things, the new legislation bans "soft money" contributions to the national political parties by corporations, labor unions, and individuals; prohibits state parties that are authorized to accept such contributions to spend the proceeds on activities related to federal elections; forbids federal candidates to participate in raising soft money; doubles the amount of "hard money" an individual can contribute in a federal election from $1,000 to $2,000 and increases the amount an individual can give in aggregate to all federal candidates, parties, and political action committees ("PACs") in a year from $25,000 to $30,000; bans all federal contributions by minors; and prohibits the expenditure of corporation and union treasury funds on "electioneering communications," defined as television or radio-broadcast advertisements that refer to a federal candidate (or candidates) and appear within thirty days of a primary election or sixty days of a general election. (1)

The new law opens a pandora's box of constitutional brain teasers that the Court will have to solve. But it takes our polity further down a certain road. This is the road of compromise regulation of our multibillion-dollar campaign-finance regime. On this middling path, we accept the fundamental and intractable role of private money in public elections, but we do our best to regulate both its attendant "corruption," defined narrowly as the trading of campaign contributives for political influence and favor, and also its attendant "appearance of corruption." (2) This latter concept is odd since we do not usually conclude that the appearance of a problem creates a sufficiently compelling interest to override freedom of speech. For example, while we can certainly legislate within the bounds of the First Amendment to criminalize obscenity (3) or incitement to imminent lawless action, (4) we cannot constitutionally criminalize the appearance of obscenity or the appearance of incitement to imminent lawless action. How can preventing the appearance of corruption constitute an interest sufficiently compelling to justify burdens on speech?

In any event, we have chosen the middle path of modest regulation against two alternative paths that lead in opposite directions: a totally deregulated free market in campaign contributions and expenditures in which political money is treated as simply a proxy and vehicle for speech; and a public-finance regime in which we do our best to abolish the power of private money and treat campaigns as a public process like the election itself.

If the Supreme Court upholds the BCRA, we will likely continue on this middle road. Individual private-campaign contributions will grow rapidly, perhaps even doubling in the 2004 elections given the increased giving limits. Corporations and unions, perhaps now forbidden to contribute soft money and produce "electioneering" ads, will have a diminished role for a while but will soon enough find other ways to make their influence felt. We will see no sharp policy departures that either deregulate or substitute for the present market in campaign-finance capital.

Yet, if the Court invalidates large chunks of the BCRA, as it is likely to do, the forces of reform will have to conclude that the century-long effort to contain and channel private money has reached a dead end. The only viable progressive alternative to the status quo will be some kind of national public-financing regime written in such a way as to permit candidates to opt out and go private if they like, as is required by the Court's decision in Buckley v. Valeo, (5) but otherwise gives candidates the public means to run a serious campaign in return for forswearing private contributions. In the meantime, the ambiguities, contradictions, and gaps in the current compromise regime will give greater political impetus to Senator Mitch McConnell (R-Ky.) and other conservatives who think that political money, regardless of its source or its destination, should run free like a river. After the invalidation of the BCRA, reform will focus on creating a parallel public regime and conservative resistance will focus on throwing away even the skeletal regulations we have.

Thus, it is a fine time to examine two books--Bradley Smith's Unfree Speech: The Folly of Campaign Finance Reform, (6) which will appeal to conservatives, and Bruce Ackerman and fan Ayres's Voting with Dollars: A New Paradigm for Campaign Finance, (7) which may intrigue liberals--that imagine sweeping changes to our campaign-finance regime.

I.

In Unfree Speech: The Folly of Campaign Finance Reform, Bradley Smith has written an impassioned and eloquent defense of a free market in the financing of America's political campaigns. One is tempted to call Professor Smith's work the definitive libertarian statement about campaign finance: indeed, the Cato Institute and other self-described libertarian groups fighting campaign-finance reform have ardently promoted his ideas. (8) But there are revealing evasions in his argument--specifically about the role of private corporations, the public self-subsidies engineered by incumbents, and the acceptability of compulsory-disclosure rules--that complicate and cast doubt on his libertarianism. These equivocations make him, in the final analysis, more the conservative champion of the status quo than the visionary of a systematically deregulated libertarian regime of money in politics or the apostle of law-and-economics seeking to abolish rent-seeking behavior. While he succeeds in exposing the illiberal "folly" of much conventional reform, he ultimately fails to show how we might redesign public institutions to open up our politics to new voices, new choices, greater participation, and more political freedom.

Professor Smith has served since May of 2000 as a Republican-designated member on the Federal Election Commission, a position he secured over the protests of the Brennan Center for Justice, Vice President Al Gore, and other advocates of reform. From this perch, Commissioner Smith battles greater campaign regulation. Yet one hopes that his short-term regulatory agenda does not keep him from spelling out a more robust and systematic political libertarianism that could be a meaningful contribution to public discourse.

Smith's greatest offering in this book lies in his polemical demolition of the standard rhetoric of campaign-finance reform. He makes mincemeat of the foggy complaint that "campaign spending is too high" (p. 41), showing that Americans spend "two to three times as much money each year on the purchase of potato chips," and that Philip Morris and Procter & Gamble "spend roughly the same amount on advertising as is spent by all political parties and candidates" (p. 42). He makes a good case that as a society, we spend too little money on political communication and campaigning, a point we must keep in mind (p. 45).

Smith also debunks the claim that "money buys elections," pointing to dozens of congressional campaigns where the lesser-financed candidate won, and arguing that the normally high correlation between campaign spending and victory is more likely to reflect the popularity of the winning candidate than to create it (pp. 48-51). Although Smith does not mention it, Rob Richie and the Center for Voting and Democracy have forcefully documented that campaign funding is a substantially less-important factor in general election victory in congressional races than the engineered partisan and demographic makeup of legislative districts. (9) If you give major-party congressional nominees the choice between having a favorably gerrymandered district and a fundraising disadvantage, or an unfavorably gerrymandered district and a fundraising advantage, all the smart ones will choose the former. (Of course, most incumbents are able to get both.)

Grabbing the bull by the horns, Smith attacks the assumption that "[m]oney is a corrupting influence on the legislature" (p. 51). Here, corruption cannot mean the "personal enrichment of a legislator in exchange for a vote" (p. 52), since that kind of dirty dealing is already proscribed by laws against bribery. Smith asserts "[w]hat reformers mean by 'corruption' is that legislators react to the wishes of constituents; or what, in other circumstances, might be called 'responsiveness.' What makes this particular incidence of responsiveness 'corrupt' is that the constituents involved have taken an active role in supporting the candidate's campaign for election" with money contributions (p. 52). Smith illustrates what he sees as the reformers' fallacy by citing a Common Cause bulletin reporting $14.2 million in campaign contributions from the "sugar and peanut industries" over several elections. (10) But, Smith argues, this evidence is meaningless with respect to corruption because "[n]o effort is made to show that any congressman or senator, let alone a majority, voted against his conscience or the wishes of his constituency in exchange for votes on the issue" (p. 53). (I think he actually meant to write "in exchange for campaign contributions.")

Smith is correct that if corruption simply means compromising the moral purity or "true beliefs" of the politician, then the claim that money corrupts legislatures seems highly doubtful. The kinds of politicians that receive huge sums from agri-business interests are the kinds of politicians that would robotically serve...