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Plutocrats Protected

Last summer, Jonathan Rauch, a senior fellow at the Brookings Institution, published a short e-book, Political Realism: How Hacks, Big Money, and Back-Room Deals Can Strengthen American Democracy. The over-the-top title notwithstanding, it made a concise, reasoned case against well-intentioned political reforms—including campaign-finance reform—that actually undermine rather than strengthen citizen participation in the republic.

It is important to attract readers, so provocative titles certainly matter, and Rick Hasen makes his own attempt with Plutocrats United: Campaign Money, the Supreme Court, and the Distortion of American Elections. It is a dig at the Supreme Court’s 2010 opinion in Citizens United v. Federal Election Commission, which freed corporations and unions from bans against producing political movies or other electoral advocacy.

In this case the spicy title rather backfires, for the campaign-finance system proposed by Hasen is navigable only by the wealthy and well-connected.

Hasen, an election law professor at the University of California, Irvine and editor of the popular Election Law blog, brings decades of scholarship to the book, and diverges in some important ways from the professional “reform” lobby, which is diligently working nationwide to make campaign-finance laws as onerous as possible. Hasen rejects “the crass common liberal refrain that money simply buys elections” and even acknowledges that “all this campaign money educates voters about candidates and issues.”

Moreover, he disagrees with the strategy of the reform lobby and his fellow legal scholars to expand the definition of corruption, which is the only constitutional justification for campaign-finance limits that is recognized by the current Supreme Court. Broadening the definition, reformers hope, will allow more campaign-finance concoctions to pass muster.

Hasen argues instead that reform must be based on a concept of political equality that was rejected by the Supreme Court back in 1976, long before Citizens United, in what was the first comprehensive campaign-finance decision, Buckley v. Valeo.

To achieve equality, or something like it, he proposes a campaign-finance regime that would place a $25,000 limit on how much an individual or organization could contribute or spend to support a particular candidate. The Hasen proposal would also put a $500,000 aggregate cap on how much one could contribute or spend per election cycle. Lastly, it would make a $100 voucher available to every voter to contribute as he or she pleases to a candidate or cause.

Hasen tries to balance political equality with free speech and, to his credit, his legal proposals and his philosophical arguments are both far friendlier to the Constitution than those of the vast majority of campaign-finance reformers. Nevertheless, his model would still require a robust federal agency more powerful than the current Federal Election Commission to enforce its limits. Inevitably this involves the policing of speech, to a degree that is at least as draconian as—and certainly more expensive than—the current regime.

In one of the few slips into hyperbole in the book itself, Hasen suggests that anyone not favorable to political equality as he defines political equality is likely to be a supporter of poll taxes. The nub of the problem: that he has not considered political equality from every angle.

One of the free speech problems with campaign-finance law—namely, the cost of compliance—is seldom addressed by reformers, and unfortunately Hasen is no different from the run of the mill in this respect. The cost of compliance is a de facto “campaign tax” that prevents or at least hinders political participation. Currently, well-financed campaigns and political groups pay large amounts of money to attorneys and accountants to complete their campaign reports and to comply with many other complex rules. Even with professional assistance, mistakes are made—the omission of Ted Cruz’s loan from Goldman Sachs in his FEC filings is one recent example.

To ensure that the plutocrats don’t spend more than $500,000 per election would require not only disclosure from donors and campaigns, but regular, comprehensive audits of any and every organization with the slightest connection to elections, lest it receive too much of the wrong kind of support from wealthy citizens. The $100-per-citizen voucher might work for those who just want to contribute to a candidate or cause. It will do nothing for citizens wanting to get seriously involved and start a political committee or campaign. Hasen might solve this by bolstering the voucher with what I will call a “compliance coupon” starting at around $1,000, but this would only add billions in costs to an already farfetched, multi-billion-dollar program.

If navigating new kinds of red tape were not expensive enough, encouraging the filing of lawsuits would take us even further in this direction. Hasen believes that “courts have a crucial role to play in assuring that any set of campaign finance rules does not infringe too much on robust campaigns, speech, and associational freedom.” He does not mention that the cost of bringing a lawsuit against the government can run to over a million dollars, especially if the case reaches the Supreme Court. Hasen condemns broad, proactive rulings like Citizens United and instead favors “constitutional avoidance,” narrow rulings that often only help the specific plaintiff in a given case. In this way his proposal once again advantages those who can afford to pay for lawsuits and the protection of their own particular forms of advocacy. (Such was the case when the Citizens United group fought to distribute its documentary, Hillary: The Movie.) As one of the few attorneys who brings such lawsuits pro bono (thanks in large part to generous donors), I can attest to the scarcity of legal counsel for political novices and grassroots speakers.

One could lodge many more objections to injecting equality-of-condition notions into constitutional law. But doing so isn’t really necessary, for Hasen’s thesis is undone by his own arguments. Under his regime, moneyed Americans would retain their nearly exclusive ability to overcome the barriers to entry erected by campaign-finance law.

And let’s be clear, this is not only a free speech problem; it is a “political equality” problem no matter how you define it. Plutocrats United is but the latest work to fail to come to terms with this dilemma. No surprise, because it is an inseverable feature of campaign-finance reform.

Reader Discussion

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.

on March 21, 2016 at 10:37:29 am

[…] Steve Klein reviewing my book at Library of Law and Liberty: […]

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Image of “Plutocrats Protected” | Election Law Blog
“Plutocrats Protected” | Election Law Blog
on March 21, 2016 at 11:00:37 am

1) "... Hasen suggests that anyone not favorable to political equality as he defines political equality is likely to be a supporter of poll taxes."
-and this is worse than giving out Obamaphones in lieu of a poll tax?
2) "...and instead favors “constitutional avoidance,” narrow rulings that often only help the specific plaintiff in a given case."
- Yes, it does do as you say - but perhaps we would be better off if the SCOTUS practiced such avoidance far more frequently rather than elevate every single new "crisis" of rights to a constitutional guarantee.
3) Viewing this as a free speech issue and / or an equality issue would certainly seem to present us with a dilemma. There does not appear to be any way around the *undue* (if that is one's ideological disposition) influence of the moneyed class without either abridging certain liberties and / or creating another monstrous Federal Agency.
Yet, there is perhaps a better way to solve this. Avoid the problem in the first place. simply reduce government to its intended limits. With each new assertion (arrogation) of government power comes multiple new entry points for influence and, as I like to say, new "occasions of / for sin (read corruption)"

I suspect that many of us would be content with a system that prohibited corporations and unions from making campaign contributions. This would limit undue influence of those with a greater desire and propensity to exercise such influence. Then again, media corporations would have an undue advantage.

Nope, seems like the only answer is to limit government so that it does not feel it necessary to regulate the puddles in my backyard, nor the length of roofing nails I use for my patio roof - not to mention the light bulbs that I may use or that the manufacturer may produce..

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Image of gabe
gabe
on March 21, 2016 at 14:19:57 pm

Political Finance and Financing Campaigns

Follow the money. Where does it go, and why - to what ends?

Is there a difference in political (e.g., legislative issues) finance from electoral (campaign) finance?

Are the two intertwined?

Doesn't all this really turn on the quality of the "elected" in one case; and the quality of the electorate in the other?

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Image of R Richard Schweitzer
R Richard Schweitzer
on March 21, 2016 at 15:29:16 pm

I don't see the problem of campaigning as being that big a deal. You don't need a lot of complicated rules, rules that would most certainly be created by the same people who are the subject of those rules.

It is important, I believe, to look as the election process as a hiring process. Where I work, we usually use a list of five or six criteria for a candidate, and we rate them on a scale of 1 - 5. During the interview we measure the candidate for negatives: Did the candidate lie about past experience? Does the candidate communicate well? Etc.

After the interview we document our ratings and we document the negatives. Those evaluations are summed and we hire based on that.

The American governmental hiring process is different. We exercise the pluralist vote, giving one vote for a candidate we would prefer. Our pluralist votes for a candidate are summed up and act as our ratings.

The main problem with the pluralist method is that it only counts positives. It is basically the same as if the hiring process at my company considered only the positives of a candidate, but not the negatives.

Suppose that at my company not only did we fail to count the negatives, but we also didn't have a clear list of qualifications for a position. Our rating would be just a matter of whether we like the person or not. That kind of hiring process would be a disaster for any company.

(Yeah, I know it's a little more complicated than that. The party system does a little to address the negatives. But if it works so well, please explain to me the sitting of some of the recent Presidents and please explain to me the current field of presidential candidates.)

There is no reason that ballots cannot include a clear list of criteria that qualify a candidate for office. There is no reason a voter cannot cast a negative vote against a candidate who does not meet the criteria.

The negative vote is something that has been studied and shown to produce a more moderate candidates.

The honesty of voters has been studied and voters are shown to be generally honest when voting, so most voters would tend to follow some basic guidelines if they were provided.

If the criteria were to include primary fidelity to the electoral public, the candidates would have to avoid the appearance of loyalty to such groups of political parties and financiers. That, plus the negative vote, would certainly do a lot to fix a lot of the problem of corruption.

That's how businesses hire the best candidates. That's how Americans could hire the best candidates for office. The kinds of rotten candidates we see today would be a thing of the past.

The problem is how to put in place something like that. Existing candidates would fight it tooth and nail. And the existing candidates make the rules.

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Image of Scott Amorian
Scott Amorian
on March 21, 2016 at 16:23:03 pm

"Suppose that at my company not only did we fail to count the negatives, but we also didn’t have a clear list of qualifications for a position. Our rating would be just a matter of whether we like the person or not. That kind of hiring process would be a disaster for any company."

Hey, why not? Who says a private company cannot be run well if we hire only "celebrities" - after all it seems to have worked well for the country. This system has given us The Rock Star Barack Obama and will soon present us with a choice between The Trumpster and The Fat Lady in a Pantsuit. Then there were the also-rans: Mike Huckabee, Ben Carson, etc.etc. who have elevated their celebrity runs into a somewhat lucrative profession.

I don't know about "negative voting" but it is clear that the voters themselves either do not have, or have a rather confused understanding of the proper qualifications / criteria for elective office. I suppose we will just have to struggle along with the only one that seems to matter nowadays - How much will he or she do for me?
That may be an acceptable criteria for corporate employment but it seems to lack something for elective office.

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Image of gabe
gabe
on March 22, 2016 at 12:09:01 pm

[…] Read more… […]

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Image of Daily Media Links 3/22: Major Republican Donors Fatigued by Presidential Race, Failure At The Speed Of Government: Nearly Eight Years Later, I’ve Finally Heard Back From The IRS, and more…
Daily Media Links 3/22: Major Republican Donors Fatigued by Presidential Race, Failure At The Speed Of Government: Nearly Eight Years Later, I’ve Finally Heard Back From The IRS, and more…

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.