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December 11, 2003

the campaign finance decision

Justice Scalia's dissent in the recent landmark campaign finance case is written with characteristic brio and affords an opportunity to consider the deepest issues. Some of Scalia's points are rebuttals to arguments made during Congressional debate that I would not myself defend. For example, Members of Congress had claimed that there was too much overall spending on politics, and that "attack ads" were too negative. I agree with Scalia that the total quantity of spending is not too high, and that attacks on incumbents are desirable. But there is still a very good reason for campaign-finance reform: namely, to curb the disproportionate influence of organized interests. Against this position, Scalia makes five main points:

1. It is outrageous to restrict speech by limiting campaign donations that buy political advertising, when the courts are otherwise so protective of speech that they find rights to "virtual child pornography," "tobacco advertising," "dissemination of illegally intercepted communications," and "sexually explicit cable programming."

I would reply that campaign finance involves much more serious considerations on both sides than, say, sexually explicit cable shows. On one hand, there is a connection between spending and speech. Congress could limit spending in such a way as to prevent criticism of itself: a serious danger. On the other hand, massive, unregulated campaign contributions threaten to undermine a democratic system based on one-person, one-vote. Thus not all limits on contributions are constitutional, but reasonable limits will enhance core constitutional values. The same is not true of pornography or commercial advertising, where the tension is between free speech (a constitutional right) and decency.

2. Limits on campaign donations are patronizing. They assume that voters are easily manipulated, even when they have access to information about contributors. Scalia says: "The premise of the First Amendment is that the American people are neither sheep nor fools, and hence fully capable of considering both the substance of the speech presented to them and its proximate and ultimate source. If that premise is wrong, our democracy has a much greater problem to overcome than merely the influence of amassed wealth. Given the premises of democracy, there is no such thing as too much speech."

I'm not a sheep, but I do feel completely unable to use campaign finance disclosure information to guide my voting decisions. First of all, major candidates from both parties take money from long lists of donors, so I cannot cast my vote for someone who is "clean." Second, only a tiny proportion of congressional business is covered in the press; the rest is too routine and complex for anyone to follow. Yet it is precisely on the routine, nitty-gritty, economic issues that campaign donations have the most impact. Money doesn't so much determine votes as put some issues on the agenda and keep others off. As the majority concludes, "unlike straight cash-for-votes transactions, such corruption is neither easily detected nor practical to criminalize. The best means of prevention is to identify and to remove the temptation."

3. Campaign contributions have limited impact, at most. "Evil corporate (and private affluent) influences are well enough checked (so long as adequate campaign-expenditure disclosure rules exist) by the politician's fear of being portrayed as 'in the pocket' of so-called moneyed interests."

The most sophisticated version of this argument uses data on money and votes to assert that campaign donations cancel one another out. I tried to debunk that conclusion in an article and in my New Progressive Era book. There's a lot of empirical evidence that campaign money does indeed change the political agenda. I'm delighted that the majority accepted this argument, finding that "The evidence connects soft money to manipulations of the legislative calendar, leading to Congress' failure to enact, among other things, generic drug legislation, tort reform, and tobacco legislation. ... 'Donations from the tobacco industry to Republicans scuttled tobacco legislation, as contributions from the trial lawyers to Democrats stopped tort reform' [according to former Sen. Paul Simon]. To claim that such actions do not change legislative outcomes surely misunderstands the legislative process."

4. Money probably does buy access (rather than influence), but that's acceptable. "It cannot be denied ... that corporate (like noncorporate) allies will have greater access to the officeholder, and that he will tend to favor the same causes as those who support him (which is usually why they supported him). That is the nature of politics -- if not indeed human nature -- and how this can properly be considered 'corruption' (or 'the appearance of corruption') with regard to corporate allies and not with regard to other allies is beyond me."

This is a juncture where I cannot avoid detecting class bias in Scalia's reasoning. It's not as if politicians will favor a random selection of Americans who just happen to support them. Those who get in the door--overwhelmingly--will represent investor and management interests. Politicians will also listen to some officials of working-class organizations, such as unions, but these lobbyists will be dramatically outnumbered, and they will be well-paid professionals who imperfectly represent their membership.

"Pluralists" in political science are those who believe that modern politics is and ought to be a competition among numerous interest groups, in which none has the power to prevail. Pluralists have often defended the campaign finance regime on the grounds that no single moneyed interest is dominant; there's cash available from all sides. But I agree with EE Schattschneider: "The flaw in the pluralist heaven is that the choir sings with a strong upper class accent.

Posted by peterlevine at December 11, 2003 11:34 AM


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