Sometime in the next few years, it is likely that the Supreme Court will be asked, "Are elections in the United States so distorted by the influence of money that they have ceased to be democratic?" It's not hard to imagine the average attentive American answering that question along the lines of "Hell yes!" But the Supreme Court will not say "Hell yes." There will be evidence to weigh, there will be the usual tangle of constitutional conundrums, and there will be the inconvenient fact that the campaign finance system we have grown to know and loathe is the direct result of the Court's 1976 Buckley v. Valeo ruling, which discarded a congressional attempt to limit the amount of money that can be spent in elections.
The Buckley decision has been widely questioned. A New York Times editorial called it "untenable." To some legal scholars, the central part of the ruling--allowing limits on what individuals can contribute to campaigns but not allowing limits on what politicians and parties can spend--didn't make sense from the beginning. But in recent years, as spending has exploded and donors have found new ways to make large, unregulated contributions, many more thinkers and activists have begun to hope Buckley will be overruled.
The Court's conservatives have not given encouraging signals. Justice Clarence Thomas has said he doesn't even think contributions, much less spending, should be limited. From the decision's defenders, we can expect to hear references to the "marketplace of ideas" and warnings about the danger of government intrusion into said marketplace. Freedom of speech is the controlling principle. Just because the rich can afford more of it doesn't mean their rights are less protected. (It's the converse of the equal right of the rich and poor to sleep under bridges.) For government to cap the amount of money that Steve Forbes can spend seeking office is to unconstitutionally limit his political speech. Such arguments are familiar. And they carried the day in Buckley v. Valeo.
But they also skirt the question about whether the election system is functioning democratically. For my money (insignificant though it may be), this is the most intriguing question, the heart of the matter. When another campaign finance case makes it to the High Court, the justices almost certainly will be asked to take responsibility for the system they helped create, a system in which the power of money has triumphed over one person, one vote. They will be asked to imagine again what democracy should be, what it could be, and whether government has the rightful authority, even duty, to put in place a system of fairer, more deliberative elections.
Might the Court's moderates and liberals entertain these deeper and wider questions? Over the past decade, a group of scholars and activists has been honing the arguments. Most of these observers share the perspective that American democracy is in peril; many of them believe overturning the Buckley ruling could help set things right. The reform tendency has real intellectual firepower, too: The cause was advanced by University of Chicago legal theorist Cass Sunstein's 1993 book Democracy and the Problem of Free Speech, and by Ronald Dworkin's 1996 collection Freedom's Law: The Moral Reading of the American Constitution. As well, journalists have produced a steady stream of exposés about the workings of Washington and the power of money. And thinkers from the left, right, and center have been concerned with ways of strengthening civil society, the sector in which citizens act separately from business and government. Notable here is a subgroup that puts the emphasis on a higher ideal of democratic life, often described, somewhat redundantly, as deliberative democracy.
Late last year, the Century Foundation, in partnership with the Brennan Center for Justice at the New York University School of Law, published an important contribution to the debate. If Buckley Fell is not the kind of book that gets much attention from the mainstream press, yet for anyone who is interested in getting to yes, or even to maybe, on the campaign finance reform issue, this book is invaluable. It serves as an early glimpse of the arguments the Supreme Court will eventually have to consider. I approached it with skepticism (writers tend to be First Amendment zealots) and with hope (for a better way of thinking about the money-in-politics problem). I emerged with both my skepticism and hope intact. It would take a bold Supreme Court to go where today's reformers want it to go, and perhaps it will never be so bold, unless we live to see the appointment of Sunstein and Dworkin directly to the bench (and two or three more like them). Still, the argument for a new post-Buckley set of reforms is strong and compelling.
One of the virtues of If Buckley Fell is that it is not shrill. More committed to the search for remedies than the standard simplistic journalistic exposé, the book consists of five deeply considered essays by people whose understanding of the law and the political system comes from years of close observation. As editor E. Joshua Rosenkranz writes in the introduction, the contributors were asked to "imagine what the First Amendment landscape could look like if the Supreme Court junked Buckley." To Rosenkranz, who as director of the Brennan Center is likely to be involved in the next big case, a reassessment seems certain. "It's not a question of whether the Court will reconsider Buckley, but when," he writes. But with what result? "One can almost picture several justices poised on the edge of a diving board, but hesitating to jump in for fear that there is no water in the pool," he says. Rosenkranz beckons a little more enthusiastically than his hip-wading contributors, but the call goes up to the divers: The water's fine.
The Return of Clement Stone
It's common for cynics to point to campaign finance laws as an example of the failure of liberal reform schemes. But the post-Watergate regulations of the 1970s were not an immediate failure. As University of Minnesota political science professor emeritus Frank Sorauf notes in If Buckley Fell, there have been three distinct eras of electoral regulation since Congress passed the Federal Election Campaign Act in 1974: an era of adaptation from 1974 through 1984, an era of stability from 1985 through 1990, and then the swinging 1990s.
One can't deny that some good came out of the reforms, even after they were weakened by the Buckley ruling. Richard Nixon had received more than $2 million from one man, industrialist W. Clement Stone, for his 1972 campaign. Now that there is full public financing of presidential candidates in the general election, such influence buying is less blatant. More important, as long as both major-party candidates take public funds, there is--in theory--financial parity between the two. And spending in presidential races has not risen as dramatically as congressional spending.
But as Sorauf shows, over the course of a decade and a half, money began to find its way into the system in other ways. Thanks to the soft money loophole, today's magnates can give unlimited amounts directly to the parties, and the parties can run advertising blitzes on behalf of candidates. This can make all the difference in determining which major-party candidates emerge in the primary season. Soft money is just as important in the general election, too, as party spending has become virtually the same as candidate spending. And donors can pour unrestricted money into "independent" advocacy groups, which often act as surrogates for candidates. It's less convenient than it was in the Nixon/Stone days, but it works.
Congress has been allergic to the idea of public financing of its own elections. One of the factors that caused the lid to blow off in the 1990s, as Sorauf tells it, was that competition for federal offices intensified in the early years of the decade. Due to a higher number of congressional retirements, more candidates came forth, which drove up spending. And one of the unintended consequences of the new money patterns was the increasingly important role of the two major parties. They were no longer controlling precinct captains and foot soldiers, but they controlled the big contributions. So now the parties and Congress are united against real reform.
Sometime in the next few years, some form of campaign finance bill may get passed--maybe even the long-sought-after ban of soft money. But recent history teaches that new ways of giving and spending will develop. If parties are prevented from dealing with the high rollers, the high rollers will fund "independent" groups. In that event, we are right back in the middle of the free-speech problem. How can Congress tell a political group, or a wealthy citizen, not to express opinions about candidates and electoral issues? What plainer First Amendment obstacle could there be? Consult the text: "Congress shall make no law ... abridging the freedom of speech, or of the press."
The crux of the argument put forward in If Buckley Fell is that the First Amendment need not be a roadblock to better regulation of money in politics. One line of argument is that elections are special cases and that government is obliged to "ensure the fairness and integrity of the process as a whole," as contributor Richard Briffault, a vice dean at Columbia Law School, puts it. More than one writer points out, as well, that it is not possible to sustain an "absolutist" reading of the First Amendment: Congress has made laws abridging freedom of speech in cases of national security, libel, and public safety. The Supreme Court has a long record of supporting government regulation of speech in the broadcasting industry, such as the Fairness Doctrine, precisely to promote freer expression.
In the book's most illuminating section, Ronald Dworkin makes the case that the Court could and should allow some election-related speech regulations. (The chapter appears with minor changes in Dworkin's new book Sovereign Virtue: The Theory and Practice of Equality.) In his view, the First Amendment permits "regulations of speech that further its assumed goal of protecting democracy." One such regulation would be to control the amount of money in elections. "The most effective way to prevent money from dominating politics, and to prevent powerful corporations, unions, and other groups from receiving favors for contributions, is to lessen politicians' need for money, and the most effective way to do that is to limit what the politicians may spend," Dworkin writes.
This is the very concept the Court rejected in Buckley, stating in its most-quoted passage, "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." Getting to the heart of the matter, Dworkin traces the disagreement to "how we conceive the character of American democracy." The Supreme Court took the view that the best way to protect democracy is to strictly forbid government from limiting political speech. That is the "democratic wager" upon which Judge Learned Hand said "we have staked our all." It rests on the idea that all we can expect of the democratic political system is to enforce the will of the majority; government is presumed to be neutral about how much speech is permitted and what kind. But, says Dworkin, "if we reject that majoritarian conception of democracy in favor of a different and more ambitious one that understands democracy as a partnership in collective self-government in which all citizens are given the opportunity to be active and equal partners," we should reject this wager.
In Dworkin's view of "partnership democracy," government must abide by "rigorous standards" in regulating political speech. He is not advocating specific prohibition of views, of course, but general rules that would apply equally to all: spending limits on candidates and parties, limits on political contributions, limits on spending by individuals and political action committees during an election period for messages that mention a specific party or candidate, and publicly funded broadcast time for those parties and candidates that agree not to run short commercial spots but to speak directly to the audience for at least three minutes' duration.
Dworkin concedes that such ideas are not likely to be embraced anytime soon by either the High Court or Congress. If it is true, as he says, that our answer to the question "What is the best conception of democracy?" is "likely to be decisive," then real reform depends on some combination of elites and populace deciding it is possible to imagine "partnership democracy," or as others are calling it, "deliberative democracy," or as Cass Sunstein has described it, the "Madisonian conception," in which the First Amendment's very purpose is to enable self-government. Interestingly, there are examples of Supreme Court opinions that brush up against this perspective. In Austin v. Michigan Chamber of Commerce (1990), Dworkin notes, the Court upheld a law that prohibited corporations from using their general assets to support or oppose candidates. The reasoning was that states may legislate against quid-pro-quo corruption but also against "a different kind of corruption in the political arena: the corrosive and distorting effects of immense aggregations of wealth that are accumulated with the help of the corporate form and that have little or no correlation to the public's support for the corporation's political ideas."
Is it possible that America could deliberate its way to support for a new system of regulated speech? It will not be easy going. Libertarians on the left and right would be united against it, and the nation's media would resist every inch of the way. Thinkers like Dworkin and Sunstein can rightly point out that an absolutist interpretation is removed from reality. It is impossible to expect that Congress will "make no law" abridging freedom of speech. Commercial speech, for example, has been limited in some instances with the Court's blessing. So in a logical sense, the scholars are right. But at an emotional level, an absolutist stance promotes vigilance. It translates into "Congress shall make no further laws abridging freedom of speech, dammit."
In his important 1993 book, Sunstein argues mightily against this fear, proposing "a New Deal for speech." But it may be that the nation doesn't regard government regulation the way it did in an earlier era. Many of us do fear government decision making, especially when it comes to "regulating speech." We also know, on the other hand, that our political institutions cannot be run by "marketplace" mechanisms. We fear for self-government if citizens reject those institutions as stacked against them. Many reformers, Dworkin and Sunstein included, look to Justice Louis Brandeis as a source of inspiration about the possibilities of "government by discussion." Brandeis insisted that in government "the deliberative forces should prevail over the arbitrary." His fear was not of government regulation. In his famous words, "The greatest menace to freedom is an inert people."
Up with Bob LaFollette
No legislation, no reform, can by itself spark a rebirth of democratic action. Yet the present system encourages inertness. It fails to promote popular sovereignty, citizen equality, and reasonable democratic discourse, the three goals Dworkin associates with partnership democracy. Our bold-thinking legal theorists do us a service by insisting we can create legal structures that protect free speech and at the same time promote a more ambitious democratic ideal.
There are many, however, who share these ideals but do not believe prospects for success have much to do with Buckley v. Valeo. Maybe it will be too difficult to persuade Americans that Congress should make new laws regulating speech in the name of democracy. Maybe it's not necessary to go down that perilous road. In recent years, there has been a steady stream of books envisioning all manner of ways to re-energize the body politic. It's too bad most of them go unread. I suspect that one of the problems we have that leads to citizen inertia is that thinking about democratic dilemmas makes most people's heads hurt. What we don't like to think about goes undiscussed.
Nevertheless, some of these books are useful. Peter Levine's The New Progressive Era makes a good go of it. It's a readable and thoughtful argument that starts with a look back at Robert "Fighting Bob" LaFollette's brand of Progressivism in the early decades of the 1900s. Levine, a scholar at the Institute for Philosophy and Public Policy at the University of Maryland, emphasizes the central role of fairness and deliberation in the Progressive movement and brings these considerations to bear on modern politics. A democracy can't function well without a two-way conversation between leaders and the public, he argues. As Woodrow Wilson put it, "What we need is a universal revival of common counsel."
Levine discusses ways to strengthen civil society and to promote journalism that better serves the public interest. But it's his thinking about elections that is of interest here because it represents a point of view common among progressives who do not wish to pin their hopes on junking the Buckley ruling. "A privately funded election is not fully democratic; to a large extent, it is a financial transaction," he writes. Yet, he reasons, "spending limits are not the key to reform." He does not believe that there is too much total spending in campaigns. "The key to reform is to provide new methods of campaigning that help democracy, that are accessible to all, and that are free of corruption," Levine says.
To those ends, he proposes methods of widespread civic education, such as mass distribution of nonpartisan voting guides and experiments with "deliberative polling," in which participants hash out public issues before registering their opinions. And he proposes free television and radio time to qualified candidates. Better political discussion comes from holding more competitive elections, he notes, so public financing of elections is key: "The twin goals of reform should be fairness and deliberation. Both ends have one solution: public financing of beneficial campaign practices--those that draw people into politics and promote debate. If public money is distributed equitably, it will increase competition; and if it is dispensed wisely, it will help create a deliberative democracy."
This kind of thinking seems to me to make sense. Levine puts proposed reforms in the context of a people's movement that is informed by LaFollette-style Progressivism.
It's easier, I think, to imagine a movement that gathers force around public financing than one that pushes for changes in First Amendment law. Further, public financing could solve the problem just as well: As long as candidates voluntarily agree to spending limits in exchange for public funds, there is no violation of free speech in the eyes of the Court. There is a great deal of work to be done to make the case for public financing convincing to the American public. Such efforts have begun in a few states, but the central question really has to do with Congress. If we are to have any kind of national deliberative democracy, the relationship between Congress and constituents will have to be repaired, and constituents will have to be willing to spend a good deal of public money to fund competitive elections as a starting point.
If such a movement were to come alive, it stands to reason that it would seek changes in laws that govern the political system. And without such a movement, one might be skeptical whether top-down legal reforms would have much effect. What if money in politics were strictly limited and people still ignored politics? One of the deficiencies of If Buckley Fell is that it imagines a new First Amendment jurisprudence but offers no vision of what transformation, if any, we would see in the political life of the nation. The New Progressive Era is more ambitious in that regard. To achieve a fair and deliberative democracy requires legal reform and a commitment from citizens to read, to listen, to discuss, and to confront powerful forces that now control the mechanisms of government.
The seductiveness of considering legal fixes is that they seem more realistic. If only we could get five votes on the Supreme Court, a whole new political architecture could be put in place. The problem with the holistic approach, though, is that it seems almost utopian. How do we bring civil society alive, create a new public-interest purpose in the media, reclaim our elections, and deliberate nationally in a way that restores popular sovereignty and displaces corporate/bureaucratic rule?
It is daunting. But we have come to a place in history when the political system is like a body crippled by advanced arthritis. Taping up an ankle or a wrist won't help much. A holistic therapy is required. A strong public mind and will are essential. Start by asking: Can true democracy work in modern America? If the answer is "Hell yes," we are ready for a bold regimen. ¤
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