League of Women Voters Money In Politics Review Ed Smith January 16, 2016

 Libertarian vs. Egalitarian ◦ Yasmin Dawood’s “Campaign Finance and American Democracy”, June 2015  Fundamentalist vs. Idealist ◦ Cass R. Sunstein’s “Radicals in Robes”, 2005  Conservative vs. Progressive ◦ Robin West’s “Progressive and Conservative Constitutionalism”, 1990

 Libertarian ◦ Gov should not restrict electoral speech  Freedom from state control  Free market of ideas  Speech should be rebutted, not censored  Freedom of speech is essential for democracy ◦ 1 st Amendment guarantee of personal rights  Presumption against state regulation  Campaign contributions  Campaign expenditures

 Egalitarian ◦ State regulation of speech sometimes is required  Prevent monopolizing political discourse by wealthy  Prevent limiting communication means ◦ Voice of less powerful not heard  Marketplace of ideas not fully represented ◦ Constrain voices of wealthy  Equalize the power of all citizens

 Methodology by Supreme Court  Categories of justices: 1.Fundamentalists – original constitution (i.e., Renquist/Roberts) 2.Perfectionists (Idealists) – broad interpretation (i.e., Warren court majority) 3.Minimalists – narrow decisions address specifics (i.e., moderates) 4.Majoritarians – judges uphold legislative policies (i.e., New Deal upholders)

 Conservatives’ view ◦ State action best guided by private/social normative authority ◦ Constitution is best means to preserve authority ◦ Guard against legislative or judicial encroachment ◦ Social or private institutions  Likely to view as a source of wisdom and legitimate authority.

 Progressives’ view ◦ Power and authority of some social groups as “fruits of illegitimate private hierarchy” ◦ Constitution is one important mechanism for challenging private orders ◦ Social or private institutions  Likely to see patterns of domination, subordination, and oppression attended by inequalities of power.

 The dualities: ◦ Liberty vs. Equality ◦ Strict vs. broad Constitutional interpretation ◦ Faith in, or fear of, private and group normative authority

 Can Government regulate money in politics? ◦ Perhaps, Somewhat, Sometimes  FECA (1971, 1974), BCRA (2002) ◦ Attitudes and courts change over time  Buckley (1975), FEC (1986), Austin (1990), WRL (2007), Citizens United (2010), McCutcheon (2014)

 Various definitions ◦ Quid pro quo, monitory influence, distortion, bribery, inequality, etc.  Corruption = public power used for private gains  One problem: hard to discern between corruption and ordinary democratic politics ◦ Use or public office for private gain (bribery) ◦ Use of public office for political gain (quid pro quo)  When does legislative responsiveness to constituent wishes transform to corruption?

 Concept of inequalities in speech capacities  “The concept that government may restrict the speech of some elements in our society in order to enhance the relative voice of others is wholly foreign to the First Amendment” – Supreme Court, Buckley  Equality arguments not popular with the Court

 Elections treated as distinct domain of democratic activity  Campaign speech vs. political speech  Wall between elections & campaigns ◦ Art I, sec 4 does not apply to political debate before elections

 Academic literature on campaign finance regulation is vast (many fields) ◦ Not much consensus on the issues ◦ Concern on role of money in electoral process  Many efforts to regulate have been overturned by the courts  Little empirical evidence that money buys influence ◦ But some correlation to legislative outputs  Campaign finance study is a moving target ◦ Courts have allowed more money in politics

Liberty Equality

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