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

2.  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

3.  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

4.  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

5.  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)

6.  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.

7.  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.

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

9.  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)

10.  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?

11.  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

12.  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

13.  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

14. Liberty Equality

15.  LWVNOC ◦ http://lwvnoc.org/index.html http://lwvnoc.org/index.html  LWVNOC Money In Politics Study ◦ http://lwvnoc.org/Money_In_Politics_US.html http://lwvnoc.org/Money_In_Politics_US.html  LWVUS Money In Politics Review ◦ http://forum.lwv.org/ http://forum.lwv.org/ ◦ Click on “OUR WORK”, choose Money In Politics Review