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.