The Democratic Paradox of Campaign Finance Reform Author(S): Daniel R

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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 Stable URL: http://www.jstor.org/stable/1229326 Accessed: 02/07/2008 11:04

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http://www.jstor.org The DemocraticParadox of Campaign FinanceReform

DanielR. Ortiz*

Campaignfinance reformrests on a centralfear: thatpolitical actors will converteconomic advantage into political power. However,thisfear assumesa failure of normativedemocratic theory. If voters thinkthrough political decisions in the way democratictheory assumes-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. This article reveals this paradox and traces similaritiesbetween campaignfinance reformand other types of regulationof thepolitical process-some attractiveand some not. It concludes that the paradox is unavoidableand, althoughdiscomforting, should be made transparent.For only by confrontingour democraticshortcomings can we hope to overcomethem.

INTRODUCTION

Seldom have so many worked so hardand so long to accomplish so little. Despite enduringpopular support, campaign finance reform has had, at best, mixed success. Congress has moved slowly, when at all,' and has often en- acted changes that are either cosmetic, easy to circumvent,or practicallyun- enforceable.2 If a reform should actually threatento matter,the courts, par-

* JohnAllan Love Professorof Law and ElizabethD. and RichardA. MerrillResearch Pro- fessor, Universityof VirginiaSchool of Law. I would especiallylike to thankPamela S. Karlan and VincentA. Blasi for theirhelpful and kind criticismof an early draftof this article. I would also like to thankErik Pritchard for his researchassistance. 1. On the nationallevel, variousgroups have pushedcampaign finance reform ever since the end of the nineteenthcentury. Congress'response has alwaysbeen grudging.For a comprehensive history of federal efforts at campaignfinance regulation,see generally ROBERTE. MUTCH, CAMPAIGNS,CONGRESS, AND COURTS:THE MAKINGOF FEDERALCAMPAIGN FINANCE LAW (1988). For a brieferrecounting, see generallyAnthony Corrado, Money and Politics:A Historyof Federal Campaign Finance Law, in CAMPAIGNFINANCE REFORM: A SOURCEBOOK25 (Anthony Corrado,Thomas E. Mann,Daniel R. Ortiz,Trevor Potter & FrankSorauf eds., 1997) [hereinafter CAMPAIGNFINANCE REFORM]. 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: Constitu- tional Restrictions on Campaign Finance Regulation, in CAMPAIGNFINANCE REFORM, supra note 1,at61.

893 894 STANFORDLA WREVIEW [Vol. 50:893

ticularlythe United States SupremeCourt, have been quick to strike, leaving in their wake a patchwork frameworkthat Congress never would have en- acted and that makes little sense.3 And to the extent courts do leave something meaningful behind, the available enforcementmechanisms are under- funded,hamstrung by 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 administrative enforcement mechanismssuffer from many of the same problems as their federal counter- parts.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 reformattacks Buckley v.

3. Buckleyv. Valeo,424 U.S. 1 (1976) (percuriam), is the best examplehere. In thatcase, the SupremeCourt held, among other things, that Congresscould limit contributionsto a candidate fromothers, but not fromthe candidatehimself. See id. at 23-29, 51-54. It is doubtfulthat Con- gress would have ever agreedto treatthe one type morefavorably than the other,since the effect is to give rich challengersa strong advantageover less rich incumbents. Similarly,the Court in Buckleyheld thatCongress could limit third-partycontributions to a candidate,but not independent expenditureson thatsame candidate'sbehalf. See id. at 23-29, 39-51. Figureson both sides of the campaignfinance debate criticize this distinctionas makinglittle sense. See ColoradoRepublican Fed. CampaignComm. v. FEC, 116 S. Ct. 2309, 2325-28 (1996) (Thomas,J., concurringin the judgmentand dissentingin part) (arguingagainst the constitutionalityof limiting contributions); Buckley,424 U.S. at 241-46 (Burger,J., concurringin partand dissentingin part)(arguing against the constitutionalityof limitingcontributions); id. at 259-62 (White,J., concurringin partand dissentingin part)(arguing in favorof the constitutionalityof limitingexpenditures). 4. For a generaloverview of the FEC's abilityto enforceits mandate,see generallyThomas E. Mann, The Federal ElectionCommission: Implementing and EnforcingFederal CampaignFi- nance Law, in CAMPAIGNFINANCE REFORM, supra note 1, at 275, and source materials excerpted there. The most pressing criticismsof the FEC's various structuralflaws appearin BROOKS JACKSON,BROKEN PROMISE: WHY THE FEDERAL ELECTION COMMISSION FAILED 23-37 (1990). 5. See generally Anthony Corrado& 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 PropositionA, which limitedindividual campaign contributions to $100 to $300 per electioncycle), cert. denied, 116 S. Ct. 2579 (1996); ShrinkMo. Gov't PAC v. Maupin,71 F.3d 1422 (8th Cir. 1995) (holdingunconstitutional two Missouristatutes that limited spending in state office electoral campaignsand that prohibitedcarry-over of contributionsfrom one campaignto another),cert. denied, 116 S. Ct. 2579 (1996); Day v. Holahan,34 F.3d 1356 (8th Cir. 1994) (holdingunconstitutional Missouricampaign finance reform laws); Vannattav. Keisling, 899 F. Supp. 488 (D. Ore. 1995) (holding unconstitutionalan Oregonballot measurethat limited the amountof campaign contributionsthat candidates could accept from out-of-district donors). 7. See generally THOMASGAIS & MICHAELMALBIN, THE DAY AFTERREFORM: SOBERING CAMPAIGNFINANCE LESSONS FROM THE AMERICAN STATES (forthcoming 1998). February1998] CAMPAIGNFINANCE REFORM 895

Valeo8as posing the centraldifficulty to campaignfinance reform.9 Buckley, I agree, is wrong. But I think there is a deeper problemhere. The major ob- stacle to campaign finance reform is not that the Supreme Court misunder- stands the role of money in politics nor, more fundamentally,misinterprets the First Amendment, as many who favor regulation argue. Rather, the arguments advancedby the reformersthemselves are internallyincoherent. In a deep sense, those who argue for campaignfinance reform appearto 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, different features of democraticpolitics will suffer. As I will show, however, despite their very differentviews of which features need protection,reform arguments all 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 fear makes sense. Nevertheless, in the name of protecting democracy, these theories all violate one of democracy's centralnormative assumptions: the idea that voters are civically competent.12To the extent Americansare the kind of people that democratic theory demands-i.e., engaged, informed voters who carefully reason through political arguments-we hardly need the kind of protection that campaign finance regulation affords us. Even if one side of a political race dramaticallyoutspends the 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 campaignfinance reform. 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 THEPROBLEM OF FREESPEECH 94-101 (1993) [hereinafter SUNSTEIN,DEMOCRACY AND THE PROBLEMOF FREE SPEECH];CASS R. 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 AMERICANSKNOW ABOUT POLITICS AND WHY IT MATTERS22-61 (1996). 896 STANFORDLA WREVIEW [Vol. 50:893 can converteconomic into politicalpower. In the secondsection, I explain how this centralconcern disappears if votersare civicallycompetent in the way normativedemocratic theory assumes. In particular,I focus on a power- ful argumentthat RonaldDworkin has recentlymade that democracyre- quiresnot only an equalopportunity for people's votes to makea difference, but also an equalopportunity for peopleto persuadeothers to theirviews.13 By unpackingwhat an "equalopportunity to persuade"means, I show thatit is premisedon a particularview of how votersmake political decisions, a view whichis at oddswith normative democratic theory. The thirdsection explores the pedigreeof this belief in voters'civic in- competence. The belief goes back very far and underliesmany historical electoralpractices, including property qualifications, pauper exclusions, poll taxes, outrightdisenfranchisement of certainracial and gendergroups, and literacytests. Just as all of these now discreditedmechanisms were once defendedas ways of makingsure that the vote was independentlyexercised only by thosewho werecapable of understandingor sufficientlycaring about politics,campaign finance reform reflects suspicion about voters' abilityto exerciseindependent political judgment. Whilethe older,now discredited, meansworked by denyingthe vote to peoplewhose civic capabilitieswere suspect,campaign finance regulation works by limitingthe numberand types of appealsthat people can maketo thesevoters' attention. Only if you believe thatpeople do not exercisethe vote in the way democratictheory de- mandswould you fearunconstrained appeals to them. Althoughwe have now repudiatedall these practices,it is importantto realizewhy. We have rejectedthem not becausewe have come to believe theiraim of ensuringthe independentexercise of politicaljudgment is not worthpursuing-far fromit. We have rejectedthem only becausewe have come to thinkthat some peoplehad misappropriatedthese practicesto un- justly excludegroups that were just as capableas the restof us of exercising thiskind of judgment.Their central democratic aim remains untarnished. The fourthsection explores a moreflattering analogy between campaign financereform and prohibitionsagainst vote trafficking.As I show, these two typesof reformare analogousonly if we againbelieve that voters make politicaldecisions in a way thatconflicts with normativedemocratic theory. Forreformers to drawsupport from this analogy,they must first question the civic capacitiesof manyof the voterswhose choices they aim to protect. The final section of the articleoutlines a new strategyfor defending campaignfinance regulation. This strategysees reformas imperativepre- cisely becausedemocratic theory is, in some deep sense, utopian. Since we do not live up to the demandsthat normative democratic theory places on us,

13. See Dworkin,supra note 9, at 23-24. February1998] CAMPAIGNFINANCE REFORM 897 we shouldstop pretendingthat we do and insteaddesign institutional struc- tures,including campaign finance regulations, to overcome,not ignore,our weaknesses. Seen from this perspective,democracy would functionas a regulativeideal ratherthan as a descriptionof reality. As such, campaign financeregulation would be defendedas a meansof coping with our civic incompetenciesrather than as a practicenecessary to protectthe civically competentfrom being preyedupon by advertising.Such a provocativede- fense may be bothunflattering and controversial, but it is morerealistic and less internallyconflicted than its predecessors.At bottom,reformers must rejectthe two alternativeassumptions that underlie much of everydaydis- courseabout democracy: that we do not carehow votersmake their political decisionsor that, if we do care, votersmake sufficientlyindependent, in- formedjudgments.

I. THE EVIL AT THE ROOT OF ALL MONEY

Four seemingly differentconcerns motivate campaignfinance regulation. First,some reformersadvocate regulation as a meansto improvethe day-to- day operationof legislative politics. Vincent Blasi, for example, has argued that the need to keep representatives'eyes on their jobs 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 theirenergy to tasksother than those their constituents elected them 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 im- portantinterest in representativesavoiding such behavior, an interest which

14. See VincentBlasi, Free Speechand the WideningGyre of Fund-Raising:Why Campaign SpendingLimits May Not Violatethe First AmendmentAfter All, 94 COLUM.L. REV.1281, 1282- 83 (1994). 15. As Blasi putsit: As difficultas the generalsubject of representationcan be, one does not needa sophisticated understandingof eitherrepublican theory or moder interestgroup politics to 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 ide- als regardingwho should serve; those who conceive of representationas flowing exclusively from geographic constituenciesas 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 supposed to represent,whether parochial interests, 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 STANFORDLA WREVIEW [Vol. 50:893

supportssome regulationof money in politics, particularlythe imposition of campaignspending limits.16 Second, many argue that regulatingmoney in politics can help improve the quality of political discussion and debate. The two most notable propo- nents of this view, J. Skelly Wrightand Cass Sunstein,believe that appropri- ate regulation can refocus political discourse on substantive ideas. 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 rather than treating them as mass consumersto be targetedwith affective advertisements,the same way a deodorantmanufacturer interested in increasingdemand for 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: Politics shouldnot simplyregister existing preferences and theirintensities, es- pecially as these are measuredby privatewillingness to pay. In the American constitutionaltradition, politics has an importantdeliberative function. The constitutionalsystem aspiresto a formof "governmentby discussion." Grants of cash to candidatesmight compromise that goal by, for example,encouraging legislaturesto vote in accordancewith privateinterest rather than reasons.21 By lessening the legislator's incentive to serve contributorsrather than constituents, regulation may improve the chance that the legislature will function through discussion, 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 thatrestricting contributions and expenditureswill re- duce the overallamount of politicalspeech, he writes: The givingand spending restrictions may cause candidates and other individuals to relymore on less expensivemeans of communication.But there is no reasonto believethat such a shift in meansreduces the number of issuesdiscussed in a campaign.And, by forcingcandidates to put moreemphasis on local organizingor leafletingor door-to-doorcanvassing and less on full-pageads and television spot commercials, the restrictions may well generatedeeper explo- rationof the issuesraised. Id. at 1012 (footnoteomitted). 20. See Sunstein,supra note 11, at 1392 (statingthat "[c]ampaign finance laws mightpromote the goal of ensuringpolitical deliberation and reason-giving" in the legislature). 21. Id. February1998] CAMPAIGNFINANCE REFORM 899

the quality of political decisionmakingon both the elective and representa- tive levels of democraticpolitics. Third, even more reformersargue that campaign finance regulationpro- tects 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 Su- preme 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 control it.25 Fourth,and most controversially,many reformersargue that regulationis necessary to maintain political equality.26 These writers all start with the belief that democracydemands formal equality 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 represents the 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' in- ability to properlyexercise choice. For example, the best known and proba- bly least controversialexception is that denying childrenthe right to vote.29 To this last group of reformers,problems arise from democracy's toler- ance of great economic inequality.30The dangeris that some of the rich will

22. The anticorruptionrationale differs from Sunstein's view, however,in thatit does not see debateand reason-givingas necessarilyrepresenting the voters' interests. Theirinterests might be undeliberative,which Sunsteinmight decry as privateinterests held in common. 23. See FEC v. NationalConservative PAC, 470 U.S. 480, 496-97 (1985). This, in fact, was the single reformgoal the SupremeCourt upheld in Buckleyv. Valeo,424 U.S. 1, 26-27 (1976) (per curiam). 24. See BradleyA. Smith,Faulty Assumptions and UndemocraticConsequences of Campaign FinanceReform, 105 YALEL.J. 1049, 1067-71(1996). 25. See Buckley,424 U.S. at 27-28 ("[L]awsmaking criminal the giving and takingof bribes only deal with the most blatantand specific attemptsof those with money to influencegovernmen- tal action.");see also ColoradoRepublican Fed. CampaignComm. v. FEC, 116 S. Ct. 2309, 2328- 29 (1996) (Thomas,J., concurringin the judgmentand dissentingin part)(discussing the Court's view of briberylaws in Buckley). 26. See Sunstein,supra note 11, at 1392. 27. See Karcherv. Daggett,462 U.S. 725 (1983) (in the context of federalapportionment); Reynoldsv. Sims, 377 U.S. 533 (1964) (in the contextof statelegislative apportionment). 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, Crediting the Voters:A New Beginningfor CampaignFinance, 13 AM. PROSPECT71, 72 (1993). 900 STANFORDLA WREVIEW [Vol. 50:893 try to stretchtheir economic advantage into the politicalsphere. If the rich do converteconomic into political power, they violatethe normof equalpo- liticalentitlement. Many reformers believe that campaign finance regulation is necessaryto helpkeep the inequalityaccepted in the economicrealm from infectingpolitics, where inequality is not so tolerated.31Proposals limiting individualspending, for example,are often defended as a way of preventing the wealthyfrom exerting a disproportionateinfluence on politics.32 RonaldDworkin best articulatesthis generalposition. He sees blindness as the fundamentalproblem with the SupremeCourt's cases restrictingcam- paignfinance regulation, particularly Buckley. The Courtsimply fails to see one of a citizen'stwo democraticroles. As Dworkinexplains: 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 com- mand 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 com- pete 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,democracy requires not just thatwe eachhave an equalsay in choosingamong competing candidates and positions-that is, an equal vote-but also thatwe eachhave an equalopportunity to persuadeothers to our own views aboutthese candidatesand issues. Unregulatedspending violatesthis secondrequirement, for it allowsthe richto makemore appeals on behalfof theirviews thancan others. Theseseemingly disparate justifications, however, ultimately rest on one centralfear: that economicinequalities might encroachon the political

31. See id. at 71. 32. See Edward B. Foley, Equal-Dollars-Per-Voter: A Constitutional Principle of Campaign Finance, 94 COLUM.L. REV. 1204, 1204 (1994). 33. Dworkin, supra note 9, at 23. February1998] CAMPAIGNFINANCE REFORM 901 sphere. The concerns behind the first and thirdjustifications-for example, that elected officials will shirk their jobs to do fundraisingand that elected officials will representcampaign contributorsrather than 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 overvalue the 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's concern that money harmselectoral politics because it encouragesmass advertisingover face-to-face retail politics- and thus, to his mind, manipulatesaffect more than communicates ideas- reveals 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,debilitated debate, corruption, and dangerously unlevel 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 WITH ITSELF

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 speakers with 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 troubling and "un- democratic"assumptions about voters' 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. These portraitsare admittedlyquite stylized. Few of us completelyfit one portraitor the other. We arenearly all some combinationof both. I knowI am. The caricaturesare helpful, however, because they help bring into sharperfocus the assumptionsthat we make about ourselves when we describecertain dangers in politics. I employthem as heuristicdevices. 902 STANFORDLA WREVIEW [Vol. 50:893 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 pursuing politics. Instead of 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 about politics all comes from the short commercialsthat are impossible to avoid while watch- ing television. Perhapssome of these have made an impression and maybe this voter prefers a particularcandidate because she has more commercials than her opponent, all of which are visually stirringand full of general emo- tional appeal. The voter can favorably rememberher name, moreover, because the commercials appearsteadily, 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 worry us 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 con- demn. Money has, after all, enabled the engaged voter to better judge 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 stand on these issues, but from the numerouscommercials he 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 difference here too, but is it, as before, a good difference? The reformersthink not, and their reason is interesting. Although they arguethat money allows the richercandidate to drown out the poorer one,35it

35. See SUNSTEIN,DEMOCRACY AND THEPROBLEM OF FREESPEECH, supra note 9, at 99 (criticizingH. Ross Perot'spresidential campaign for "delug[ing]the media with advertisements" February1998] CAMPAIGNFINANCE REFORM 903

is clear that, strictly speaking, the poorer candidate's views are not si- lenced.36 These views remainedavailable to interestedand inquiringminds such as that of the engaged voter. The drowning out occurred not 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 con- crete informationon which to base a decision. Instead,money sold the candidate the same way manufacturerssell their products: by appealing to a consumer's emotion rather than 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 greater resources can conduct a more extensive and thus more effective advertisingcampaign. But it is importantto realize that the candidateslack an equal opportunityto persuadethe civic slacker not 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 substantivepol- icy argumentand ideas. With respect to the civic slacker, an equal opportunity to persuade demands something akin to equal resources, but it also entails a particularlyundemocratic form 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 stark way of bringing this out is to show how our notions of equal opportunityto persuade in other decisionmaking contexts depend critically on how we believe the particulardecisionmaker makes decisions. When a

and "purchas[ing]his way into public consciousness");Wright, supra note 17, at 1018-20 (noting that the candidatewith more money is able to talk at higher"decibels" without contributing more ideas to the politicaldebate); Dworkin, supra note 9, at 22 ("It seems perverseto suffer the clear unfairnessof allowingrich candidates to drownout poorones."). 36. See Joel L. Fleishman& Pope McCorkle,Level-Up Rather Than Level-Down: Towards a New Theoryof CampaignFinance Reform, 1 J.L.& POL.211, 244-45 (1984). 37. See note 35 supra. 38. The slackercould respond to eitherthe quantityor qualityof the stimuli,but in eithercase would not be respondingprimarily to ideas. Such a notionunderlies many reformers'arguments. See David A. Strauss,Corruption, Equality, and CampaignFinance Reform,94 COLUM.L. REV. 1369, 1373 (1994) (arguingthat "making a campaigncontribution is roughlyequivalent to deliver- ing a certainnumber of votes to the legislator");Wright, supra note 17, at 1018-20. 904 STANFORDLA WREVIEW [Vol. 50:893

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. Le- gitimacy 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 ran- dom decisionmakingprocess to preserve equality among applicantscompet- ing for a privilege or benefit, fairness does demand that applicants deploy equal resources. Imagine the uproar that would accompany an announce- ment that people could file as many applicationsas they wanted-and could afford-in a lottery to grant exemptions from compulsorymilitary service in wartime. Thus, whether someone has an equal opportunityto persuade de- pends less on whether that person 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 resources poses less difficulty. In the campaign finance context, the reformers' assumption that 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 through their decisions. In other words, the reformers must 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 Buckley for ignoring one of a citizen's two roles in democracy: that of a per- suader of others.40 But does it really? Can we separate a citizen's role as judge from that as persuaderas neatly as Dworkin does?

39. See Gideonv. Wainwright,372 U.S. 335 (1963). 40. See Dworkin,supra note 9, at 22-24. February1998] CAMPAIGNFINANCE REFORM 905

In someways, I thinknot. To the extentyour and my relativeabilities to persuadeanother person dependon how that person makes choices, my complaintabout inequality aims at the rightnessof thatperson's decisional criteria.If you will alwaysbe the bettercandidate in a particularvoter's eyes becauseyou aretall, blond,and blue-eyed and I am not, is my complaintof not havinga fairshot at thatvoter's vote aimedmore at youradvantages or at the voter'smisguided political criteria? Dworkin'scomplaint, then, aboutsome havingless opportunityto per- suadethan others is, at bottom,a complaintabout the way manyof us evalu- ate politicalcandidates. Many of us, he thinks,simply do not exercisepoliti- cal choice in the informed,deliberate, reasoned way he believesdemocracy requires.And he is right. Surveyafter survey shows thatmany Americans makeuninformed political choices.41 But achievingequality of persuasion by disrespectingthe ways some votersmake choices raisesvery thornyis- sues. For one thing,it appearsthat we may be violatingdemocracy in the veryname of protectingit. In the last hypothetical,for example,imagine what it wouldmean to respect my equalityclaim. To place me in an equalposition with my tall, blond,blue-eyed opponent would require that all candidateshide theirfaces from the public. We wouldhave to deny those voterswho choose among candidatesin this particularway the informationthey deem relevant. But doingso amountsto imposingon theman unwantedpolitical decisionmaking calculus. Theywant to judge on the basisof looks. The problemis not that theymistakenly think looks are a goodproxy for policy. Dworkin'sargument works similarly. In his view, reformserves to limit-and thus to equalize-the availabilityof certainpolitical stimuli to which manyvoters respond. But denyingthese votersexposure to stimuli they believe to be importantreally represents an attemptto disciplinetheir decisionmakingor at least to mitigateits overallimpact on the outcomeof the election. Reform,in a deep sense, disrespectsthese voters' evaluative autonomy. It frustratestheir ability to judge candidatesin the way they would otherwisejudge. The questionis whethersuch decisionaldiscipline promotesor underminesdemocracy and equalityoverall. Can we preserve equalityamong voters as personsby accordingunequal respect to theirdeci- sionalcriteria? This is anotherform of the democraticparadox of campaign financereform.

III. SOME CHILLINGANALOGIES

Whencampaign finance regulation is seen as minimizingthe influence of certainkinds of votes,it appearsless akinto unabashedlydemocratic rules

41. See CARPINI& KEETER,supra note 12, at 62-104. 906 STANFORDLA WREVIEW [Vol. 50:893

like one person, one vote and more akin to practices we now believe offen- sive to democracy, such as property qualifications, pauper exclusions, poll taxes, disenfranchisementof certain racial and gender groups, and literacy tests. Unlike these now discreditedpractices, campaign finance regulation does not formallybar certain groups from voting. But as I will show, it does share these practices' central aim of minimizing the effect of votes resulting from disfavoreddecisional criteria. These analogies are meant to be provocative. By offering them, I do not mean to undercutreform through "guilt by association." Rather, I want to demonstrate,first, that the centralgoal of reform, as I have described it, has a longstandingpedigree and, second, that we 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 uninformedpolitical judgment 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 resem- blance between campaignfinance reformand these now discreditedpractices worry us? Is campaign finance reform itself susceptible to the same kind of misappropriationthat these other devices suffered? To answer these questions, we must understandthe argumentsthat once favored these now discreditedpractices. Propertyqualifications, for example, limited the vote to owners of certain amounts of property.42Nowadays such limits seem designed only to favor one class, property holders, at the expense of others, and that was part of their original effect. Originally,however, propertyqualifications were thought to 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 suffi- ciently about the public realm to form political opinions worthy of respect44 and would be susceptible to pressure from those who controlled their in- come.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 ENGLISH COLONIES IN AMERICA478-81 (1905). South Carolina limited the vote to taxpayers.See id. at 481. 43. See RobertJ. Steinfeld,Property and Suffragein the EarlyAmerican Republic, 41 STAN. L. REV.335, 340 (1989). 44. See WILLI PAUL ADAMS, THE FIRST AMERICANCONSTITUTIONS: REPUBLICAN IDEOLOGYAND THEMAKING OF THESTATE CONSTITUTIONS IN THEREVOLUTIONARY ERA 211 (Rita Kimber& RobertKimber trans., University of North CarolinaPress 1980) (1973); SAMUEL JONES,TREATISE ON THE RIGHT OF SUFFRAGE 109 (Boston, Otis, Broaders & Co. 1842). 45. See Steinfeld,supra note 43, at 340-42. February1998] CAMPAIGNFINANCE REFORM 907

sufficientlyabout public affairs and be sufficientlyfree fromexternal influ- encesto exerciseindependent political judgment.46 The secondrationale-freedom from influence by others-resemblesthe equalityof influencerationale offered by campaignfinance reformers. They, of course,do not fearthat direct economic coercion will overbeara voter's independentjudgment. Rather,reformers are concernedthat the voter will follow certainkinds of politicalstimulus and fail to exercise independent, deliberatejudgment. Still, the bottomline is similar.Just as propertyexclu- sionswere thought to maintainequality of influenceamong independent voters by preventingone manfrom directing the vote of otherswho aredepend- ent on him,47campaign finance regulation is thoughtto maintainequality of influenceamong engaged voters by preventingsome fromdirecting the vote of otherswho aresusceptible to massadvertising. Supportersof pauperexclusions made similar arguments. As wage earn- ers gainedthe vote andpeople came to see a steadywage as ensuringa sufficient stake in politicalmatters and independenceof judgment,paupers be- camethe next disfavoredclass.48 Not only did they not supportthemselves, but they dependedon local governmentfor theirneeds. This dependence presentedobvious opportunitiesfor coercionof a particularlythreatening kind:49coercion by representativesof the stateitself rather than by otherpri- vate parties.50Pauper exclusions thus worked not only to preserveequality amongindependent voters, but also to preventtyranny at the handsof local government. Racialand genderexclusions were somewhatsimilarly regarded. Al- thoughwe now view them, like propertyqualifications and pauperexclusions, as workingto subordinateone social groupto another,these exclu-

46. See 1 WILLIAMBLACKSTONE, COMMENTARIES * 171. 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 under some undue influence or other. This would give a great, an artful,or a wealthy man, a larger share in elections thanis consistentwith general liberty. If it wereprobable that every man would give his vote freelyand without influence of anykind, then, upon the truetheory and genuine principles of liberty,every member of the community,however poor, should have a vote in electingthose delegates,to whosecharge is committedthe disposalof his property,his liberty,and his life. But,since that can hardly be expectedin personsof indigentfortunes, or suchas areunder the immediatedominion of others,all popularstates have been obliged to establishcertain qualifications;whereby some, who are suspectedto have no will of theirown, are excludedfrom voting,in orderto set otherindividuals, whose wills maybe supposedindependent, more thor- oughlyupon a levelwith each other. Id. at *171-72. 48. See Steinfeld,supra note 42, at 335-37. 49. See id. at 344-48, 362. 50. See id. 908 STANFORDLA WREVIEW [Vol. 50:893

sions were oncejustified on two othergrounds: First,that members of the disfavoredgroups suffered incapacities of judgment,and second, that even if they did not, theywere particularly susceptible to outsidecoercion. The first groundis depressinglyfamiliar. Many thought both blacks and women were incapableof properlythinking through political decisions.51 Women suf- feredunder an additionaldisability. Manythought their special role within the domesticsphere of home and familywas incompatiblewith politics.52 Underprevailing ideologies, it was believedthat women were simply not naturallysuited to politicaldecisionmaking. White men, on the otherhand, wereconsidered natural rulers.53 And shouldthe occasionalblack or woman actuallybe capableof exercisingjudgment, there was a dangerthat others would overbearit. Manybelieved that freed blacks were uniquelyvulner- able to their formermasters,54 employers,55 or opportunisticwhites,56 and

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 unanswer- able logic"); J.N. BRENAMAN,A HISTORYOF VIRGINIA CONVENTIONS 80, 81, 88 (1902) (discussing Virginia'sefforts to eliminatethe electoralpower of blackvoters); CARRIE CHAPMAN CATT & NETTIEROGERS SHULER, WOMAN SUFFRAGE AND POLITICS 279 (1926) (quoting former President Taftas saying,"The lack of experiencein affairsand the excess of emotionon the partof womenin reachingtheir political decisions [on certainissues] ... wouldlower the averagepractical sense and self-restraint of the electorate ...."); WILLIAMGILLETTE, THE RIGHT TO VOTE: POLITICS AND THE PASSAGEOF THEFIFTEENTH AMENDMENT 42, 89 (1965) (discussing the belief that blacks lacked the necessary characteristicsfor intelligentexercise of the vote); RICHARDL. MORTON,THE NEGROIN VIRGINIAPOLITICS, 1865-1902, at 151-52 (1918) (discussing the views during Virginia's 1901-1902Constitutional Convention that blacks were a "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"); LINDA K. KERBER,WOMEN OF THE REPUBLIC:INTELLECT AND IDEOLOGYIN REVOLUTIONARYAMERICA 235, 269-88 (1980) (discussingthe nation'sgrudging response to women'ssacrifices during the revolutionaryera); JUDITH SHKLAR,AMERICAN CITIZENSHIP: THE QUESTFOR INCLUSION 6-8 (1991) (noting that, although 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 dependentwhether she 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 ruler of his kind. An act of Congress, it maintains,will not alter the fact that women instinc- tively seek and glory in the protectionof men, that men will lead, will control and dominate and rule, and that normalwomen will be content in the masterfuldomination of their men; that all the laws in Christendomcould not alter these 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 amount of legislation can undo it. All the king's horses and all the king's men are helpless in the face of elemental instincts. KIRKH. PORTER,A HISTORYOF SUFFRAGE IN THE UNITED STATES 249-50 (1918). 54. See id. at 83-84. 55. See GILLETTE,supra note 51, at 42. 56. See BRENAMAN,supra note 51, at 80-81. February1998] CAMPAIGNFINANCE REFORM 909

womenwere thought to be easilyswayed by theirhusbands.57 In this view, if blacks and women were allowedto vote, they would more likely multiply theirmasters' or husbands'votes than add an independentvoice of theirown. Racial and genderexclusions thus sought,as campaignfinance regulation does, to promoteequality among those thoughtto be civically independent andcapable of judgment. Poll taxes were also defendedon similargrounds. Althoughpoll taxes were long employedto frustratesouthern blacks from voting,58they were also once justifiedas a safeguardto ensurethat all who voted caredabout publicaffairs.59 If votingcame at a cost, the argumentwent, only thosewho caredwould vote, andthe outcomewould reflect sounder judgment.60 Thus, in theory,poll taxesworked to promoteequality among certain engaged citizens by discouragingvoting on a lark. Literacytests representperhaps the best parallelto campaignfinance regulation.Although we now thinkof literacytests as a shamefulmeans of excludingblacks from the vote-and, indeed,that was amongtheir original purposesin some jurisdictions61-theytheoretically served an important civic function. In theory,they ensuredthat all who voted couldread newspapers and journals,the primarysources of political informationat the time.62 In otherwords, like the previousdevices, literacytests workedto disenfranchisethose who might well make political decisions on inferior grounds,such as a candidate'slooks, simple party affiliation, or the adviceof others,rather than according to the voter'sown understandingand judgment of the issues. By exclusion,literacy tests thuspreserved equality within the limitedclass of engagedvoters.

57. See CAROLEPATEMAN, THE SEXUAL CONTRACT 39-57, 97-99, 168-72 (1988). 58. See BRENAMAN,supra note 51, at 89-90 (discussingVirginia's desire duringits 1901- 1902 ConstitutionalConvention to use the poll tax to limit suffrage);see also FREDERICD. OGDEN, THEPOLL TAX IN THESOUTH 1-31 (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 CONVENTIONAND ITS POSSIBILITIES 12 (1901). 60. Cf OGDEN,supra note 58, at 32 (notingthat supporters of the poll tax believedthat "any- one who will not pay $1.00 for the privilegeof votingdoes not deserveto have thatprivilege"). 61. See BRENAMAN,supra note 51, at 89-90 (discussingVirginia's use of literacytests and poll taxes to disenfranchiseblack voters during its 1901-1902Constitutional Convention). 62. In examiningliteracy tests, the SupremeCourt has stated: Yet in our society where newspapers,periodicals, books, and other printedmatter canvass and debate campaignissues, a State might conclude that only those who are literateshould exercise the franchise. It was said last century in Massachusettsthat a literacy test was designed to in- sure an independentand intelligentexercise of the right of 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 prop- erly vote). 910 STANFORDLA WREVIEW [Vol. 50:893

Now, of course, campaignfinance regulation is differentfrom all of thesenow suspectpractices. It excludesno one fromthe votingbooth.. Yet campaignfinance regulation does frustratecertain voters from exercising choice in ways they otherwisewould and minimizesthe overall effect of theirvotes if they do.63 In a sense, then,campaign finance regulation is to manyof thesepractices as racialgerrymandering is to outrightracial exclusion. Like racialgerrymandering, campaign finance regulation does not bar anyonefrom voting, but it does dilutethe effectof certainvotes: the votes of those who respondto politicsin certaindisfavored ways.64 Whereas racial gerrymanderingworks by preventingracial groups from effectivelyaggre- gating their individualvotes, campaignfinance limitationswork by sup- pressingappeals to certainvoters' choice mechanisms.Regulation starves these votersof the stimulusto which they are most likely to respondor at leastmakes sure that all the candidatescan makea roughlyequal number of suchappeals. So thereare two hopesin campaignfinance reform. First,insofar as re- formdiminishes such appeals,it will reducethe role of affectin voting and correspondinglyincrease the role of issues, arguments,policies, and ideas. Second, insofaras campaignfinance regulation equalizes such appeals,it will limittheir overall effect. Thevotes of peoplewho respondin suchways to politicswill largelycancel themselves out.

IV. A MORECOMFORTING ANALOGY

Thereformers, of course,never raise any of the foregoinganalogies. But they mightrely on anotheranalogy that resonates more positively: the prohibitionagainst vote buying. In one view, spendinggreat amounts of money on an electionlooks like buyingit. If successful,this analogywould be quite helpfulto the reformers'case, for vote buyingis universallydiscredited in ourpolitical culture.65 But does the analogyreally work? At first,vote buyingappears to be a riddle.66It outlawsbehavior that seems to benefitboth of the partiesdirectly involved. Like any consensual trade,vote buyingmust improve the welfareof boththe buyerand the seller in orderto occur.67The buyerand seller will tradeonly if the buyerprefers the vote overthe moneyand the sellerprefers the moneyover the vote.

63. See text accompanyingnotes 34-41 supra. 64. See id. 65. See generallyPamela S. Karlan,Not by Moneybut by VirtueWon? Vote Trafficking and the VotingRights System, 80 VA. L. REV.1455 (1994) (discussingthe dangersof vote trafficking). 66. See id. at 1456-59 (discussinghow antitraffickinglaws can actuallyrestrict voter autonomy). 67. See JAMESM. BUCHANAN& GORDONTULLOCK, THE CALCULUSOF CONSENT270 (1962). February1998] CAMPAIGNFINANCE REFORM 911

Commentatorshave disagreed over how to describe the problem with vote buying. To some, the danger lies in the social vulnerability that al- ienability 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 already meager political power and therebyreinforce their social subjugation.70To some public choice theo- rists, on the other hand, the problem lies in the imperfectionsthat would in- evitably 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 commodi- fying human personality,the problem might lie in the way one's vote is in- trinsically connected to one's self. People holding this view might believe that the vote should be inalienable because it is so tied up with the voter's status as citizen. To allow a person to sell his vote would commodify a central partof his identity. Under none of these theories does 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 informed political choices and thus better develop and exercise their identi- ties. To the extent campaignspending provides more informationof interest to voters, it can only ease, as opposed to exacerbate,the various problems of 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,supra note 65, 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, supra note 67, at 275. 72. See id. at 270-76. 73. See RichardA. Epstein, WhyRestrain Alienation?, 85 COLUM.L. REV. 970, 987-88 (1985). 912 STANFORDLA WREVIEW [Vol. 50:893

say countsonly half as muchas B's. So the value of C's vote has changed even if the vote itself has not.74 C could not, of course,complain if A and B cast theirvotes independ- ently and happenedto supportthe same candidate. C's right is a rightto haveher judgment count equally with others'in the votingbooth, not a right to controlthe outcomeof the election. The tradebetween A andB, in other words,imposes costs on C not becauseC loses, butbecause C's entitlement, the vote, is definedin termsof A and B exercisingindependent choice. In thisview of vote buying,it is wrongfor A to sell hervote to B not becauseof any injuryto A or B, butbecause their trade dilutes the valueof C's vote. In economicterms, A and B's tradecreates negative externalities because the valueof everyoneelse's vote is partlydefined according to the independence of A andB's voting. A's vote belongsto A, but all othervoters have a right in it belongingonly to her,just as A has a rightin theirvotes belongingonly to them. In otherwords, when A sells her vote, she is not only alienating somethingthat is hers,but also giving awaysomething that does not belong to her alone: partof the valueof everyoneelse's vote. Democracy,to most eyes, does not allowher to alienateso much.75 The prohibitionagainst vote buyingis, in this view, continuouswith all the now discreditedvoting practices discussed before. It seeks to ensure- just as thosepractices were once believed to-the independentexercise of politicaljudgment. Thatwe cling to this prohibitionwhile repudiatingall the otherpractices shows that we do not questionthis goal, but do worryabout thesepractices' misappropriation. In otherwords, the problemwith all these practiceslies not in the goal theywere said to pursue,but in theirperversion to other,troubling ends. If we conceptualizethe evil of vote buying in this way, campaign spendingis analogousunder a particulardescription of how votersmake politicaldecisions. To the engaged,active voter, campaign spending can make only a positivedifference. If the communicationit fundspresents no ideas, arguments,or information,the voterwill discountit. At worst, the added communicationit provideswill provea distractionor minorirritant, but it will not impairthat voter's political choice. Moreover,to the extentit does provideideas, arguments,and information,it can only improvethe voter's decisionmaking.For even if the voterdisagrees with all the informationpre- sented, the speech will have bettertested the voter's opinionsand made

74. Cf BUCHANAN& TULLOCK,supra note 67, at 270 (describinghow vote selling changes the value of a person'svote even thoughhe did not participatein the exchange). 75. Cf Karlan,supra note 65, at 1466 (discussinghow thereis a dangerto the groupwhen in- dividualsengage in vote trafficking). February1998] CAMPAIGNFINANCE REFORM 913 strongerthe voter'sjudgment. Whatever extra communication money makes possible,then, cannot hurt this type of voter'sdecisionmaking.76 On the otherhand, to the unengaged,passive voter who neitherfollows politicalarguments, carefully analyzes information, nor caresfor ideas,po- liticaladvertising may indeedmake a negativedifference.77 Remember, the fearhere is thatthe unengagedvoter will respondpositively to sheeradver- tising stimulus,that he will vote for the candidatewho has the more lavish advertisingcampaign, regardless of whetherthat campaignconveys infor- mationabout where the candidatestands on the majorissues. To the extent thatthe unengagedvoter responds this way, spendingresembles vote buying. The engaged,active voter'svote is dilutedbecause another voter has abdi- catedproper, independent judgment. The civic slackercedes his vote to the candidatewith the betteradvertising campaign, just as the traditionalvote seller cedes his vote to the vote buyer. In both cases, followingsomeone else's politicaljudgment has third-partyeffects. It devaluesthe vote of those exercisingindependent judgment.78 Note, however,that the analogybetween vote buying and campaign spendingdepends on strongassumptions about how some voters do and shouldbehave. It requires,descriptively, that a significantnumber of citizens-those analogousto vote sellers-be civic slackers: voterswho make politicaldecisions in a somewhatcareless way. It also requires,prescrip- tively, a strongnormative commitment to a particularconception of how people shouldvote. After all, accordingto the civic slacker'sown values, following political advertisingwithout discrimination does not cause any harm;it only injuresfrom the perspective of engagedvoters. Forthe analogy to vote buying to work, then, democracyitself must impose an engaged, normativeconception of decisionmaking.In otherwords, democracy must eschewpluralism among different conceptions of how peopleshould vote.

CONCLUSION:A NEW STRATEGYFOR REFORNI

Thus,the debateabout campaign finance regulation concerns something moreand very differentthan is oftenthought. It is less aboutequality, pure and simple, and more aboutwhat the vote represents,whether democracy requirespeople to makepolitical decisions in a particularway, andhow people actuallymake political choices. To reformers,not all ways of making politicaldecisions are equal. Democracy,in theireyes, demandsthe independentexercise of deliberatepolitical judgment. Reformers aim to promote equalityamong those who vote this way by minimizingthe distortingeffect

76. See Dworkin,supra note 9, at 22. 77. See text accompanyingnotes 17-21supra. 78. See text accompanyingnotes 26-33 supra. 914 STANFORDLA WREVIEW [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 campaign finance reform, on the other hand, promote equality of a differentsort: equality among 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,reformers appear elitist 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 in- ternally 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 normativelydistinguish among differentvoters' differentuses of it. Reform- ers must move the public debate to differentgrounds andjoin 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, de- mandingmuch, 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, pro- foundly antiegalitarian,that it cannot equally respect all forms of decisional autonomy. We must come to see, in other words, that if we have mistaken democracy as egalitarian,it is only because we have flatteredourselves into believing that we are all the engaged citizens that democracydemands we 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 grapple with and perhaps eventually overcome them.

79. See L.A. Powe, Jr.,Mass Speechand the Newer First Amendment,1982 SUP.CT. REV. 243,274,283. 80. See Dworkin,supra note 9, at 22 (describingthe "individual-choice"argument against campaignfinance regulation).