by Timothy K. Kuhner. Stanford: Stanford Law Books, Stanford University Press, 2014. 376pp. Cloth $90.00. ISBN: 978-0804780667. Paper $27.95. ISBN: 978-0-8047-9156-4. E-book $27.95. ISBN: 978-0-8047-9158-8.
Reviewed by Daniel Hoffman, retired from Johnson C. Smith University. Email: guayiya [at] bellsouth.net
Law professor Timothy Kuhner has written an exhaustive, learned analysis of the Supreme Court’s campaign finance jurisprudence, drawing on legal, political science, and economics perspectives. It is at the same time a sustained, passionate polemic against the contributions of the Roberts Court to that jurisprudence. The book has seven chapters, followed by 53 pages of footnotes.
Chapter 1, The Question Raised by America’s Design, depicts our election system as distorted by massive spending on the part of a modest number of individuals and organizations, driven by their desire for access and influence, and by the incessant fundraising appeals of officeholders and candidates. About 70% of the money in politics is supplied by 0.37% of the population. Money is necessary, though not sufficient, for electoral success. Kuhner traces concerns over the power of money in politics, and laws aimed at limiting that power, back to the country’s origins, and laments that many such laws have now been erased from the books by the Supreme Court. He situates the problem in a key constitutional question that the Framers failed to address clearly: “American values and institutions derive from two different systems [capitalism and democracy], each of incredible power, whose terms are sometimes irreconcilable” (p.28).
Chapter 2, Free Market Democracy, identifies BUCKLEY V. VALEO as the starting point for the Court’s entanglement of democratic theory with the theory of free market capitalism, when it held that campaign spending is a First Amendment right. Certain limits on contributions to candidates were upheld, on the ground that preventing real or apparent corruption was a valid concern. In contrast, limits on independent spending were struck down, and equalizing political influence and ability to run for office were declared to be unconstitutional goals, wholly foreign to the First Amendment.
Kuhner, appealing to a variety of theorists and empirical studies, vehemently disagrees. The Court’s understanding of free speech bespeaks a crude neoclassical view of capitalism, in which regulating the buying and selling of political speech constitutes an impermissible infringement of the free market, betraying a “Lochnerian indifference to realities of control, power, and authority” (p.58). Not only was it an error to use any economic theory as a means of constitutional interpretation, but the Court used a flawed and biased economic theory, perhaps inspired by Milton Friedman, that assumes a perfect, fully competitive [*362] market.
Chapter 3, Corporations Speak, extends the examination of the Supreme Court’s work. Justice Powell, a fervent advocate of pro-business political activism, wrote for the majority in FIRST NATIONAL BANK OF BOSTON V. BELLOTTI, striking down a state law that barred corporations from spending in connection with ballot initiatives. Voters, he argued, have a vital interest in “the widest possible dissemination of information from diverse and antagonistic sources” (p.71). Justice Powell, who had once written a memo to the Chamber of Commerce lamenting that “few elements of American society today have as little influence in government as the American businessman, the corporation, or even the millions of corporate stockholders” (p.77), was blind to the point that, because the media market is oligopolistic, corporate participation would render the two sides unable to make their arguments with comparable force.
Four Justices dissented: White, Brennan, Marshall, and, remarkably, Rehnquist. White argued that “what some have considered to be the principal function of the First Amendment, the use of communication as a means of self-expression, self-realization, and self-fulfillment, is not at all furthered by corporate speech” (p.81). Rehnquist wrote, “I would think that any particular form of organization upon which the State confers special privileges and immunities different from those of natural persons would be subject to regulation” (p.84). Corporations differ from human beings in their incentives, organizational capacity, and wealth, yielding undue advantages in political contestation. Kuhner, again citing several political philosophers and empirical studies, agrees.
Chapter 4, Consumer Sovereignty, turns to the Citizens United case, which extended Bellotti’s reasoning to the context of elections for office. This step was not compelled by precedent; indeed, the Rehnquist Court had repeatedly declined to take it, deferring instead to contrary legislative judgments in AUSTIN V. MICHIGAN CHAMBER OF COMMERCE and MCCONNELL V. FEDERAL ELECTION COMMISSION. In AUSTIN, the Court had recognized a new compelling state interest: targeting “a different type of corruption in the political arena: the corrosive and distorting effects of immense aggregations of wealth that are accumulated with the help of the corporate form and that have little or no correlation to the public’s support for the corporation’s political ideas” (p.101). Thus, corporations could be required to establish a segregated fund for political expenditures, and barred from using their general treasury for that purpose. The goal was prevention of undue influence, not equality as such. Likewise, MCCONNELL had upheld federal limits on “soft money,” i.e., donations to party organizations rather than directly to candidates. Again, the valid purpose was “curbing ‘undue influence on an officeholder’s judgment, and the appearance of such influence’” (p.107). The Court’s reasoning, Kuhner shows, had ample theoretical and empirical support.
The Rehnquist Court’s appreciation of popular sovereignty did not commend itself to President George W. Bush’s appointees, Justices Roberts and Alito. They began their campaign with two [*363] cases ruling 5-4 against “matching funds” provisions in federal and state systems of public campaign financing. Giving increased funds to candidates who accepted public finance but were outspent by candidates who refused it, they held, was an undue burden on the private candidates. No empirical evidence was needed to establish this as an undue burden: the First Amendment guarantees the full effectiveness of speech funded by unlimited private fundraising. Matching funds are an impermissible effort to equalize the “natural advantage” in political resources that the wealthy gain from the marketplace. The “widest possible dissemination of information from diverse and antagonistic sources” contemplated in BUCKLEY need not exceed what the private marketplace will support.
The next and larger step occurred in CITIZENS UNITED V. FEDERAL ELECTION COMMISSION, another 5-4 decision which, striking down a 1907 statute, overruled the Austin and MCCONNELL cases, insofar as those had broadened the concept of corruption to cover undue corporate influence. Corporate expenditure limits, it held, are simply unconstitutional, because that spending is not tantamount to direct vote-buying. The self-evidently incorruptible (my term) Justices Thomas and Scalia dissented, declaring that even direct contribution limits should be struck down across the board! Kuhner remarks, “although we are told that government is not supposed to evaluate the worth of speech, the members of the conservative majority (themselves government employees) extol corporate speech in particular” (p.130).
The most recent case, MCCUTCHEON V. FEDERAL ELECTION COMMISSION, which lifted the ceiling on aggregate spending by a donor, is too new to be covered in this book.
Chapter 5, Why Capitalism Governs Democracy, attempts to explain why the Court has taken the turns described. Kuhner’s first question is whether these decisions are compelled by the Constitution. He argues that the Framers had a relatively narrow view of free speech; they would not have approved of misleading attack ads, and could not have envisioned the technologies or the oligopolistic structure of today’s political marketplace. Accordingly, interpreting the First Amendment today necessarily requires value judgments – and the judgments of legislators are entitled to substantial deference, as the Burger and Rehnquist Courts repeatedly recognized.
At this point one might expect Kuhner to pursue his task of explanation with an exercise in judicial biography, to show how Justices like Powell, Rehnquist, Roberts and Alito formed their different ideological convictions, and to analyze the politics of presidential nomination and Senate confirmation that has placed laissez faire extremists on the Court. Instead, however, Kuhner turns to an extended analysis of different strands in American democratic theory, assessing the extent to which each can support the vision of the Roberts Court.
The Justices have drawn on select portions of public choice theory, he argues, according to which politics is simply the interplay of rational, self-interested preferences, expressed by voting, associating, and spending [*364] money. Democracy operates as a market mechanism, institutionalized as competitive interest-group pluralism. Yet, in embracing an extreme version of this approach, the Roberts Court ignores critical ideas and data that focus on inequalities of power resources and their distorting effects on the basic structures and ground rules of politics itself. “Early interest-group pluralists and early cases such as BUCKLEY perceived the majority’s demand for equality as a threat to democracy, while later interest-group pluralists and later money-in-politics cases [prior to the Roberts Court] have seen inequality as a threat to democracy” (p.162).
The alternative political visions of civic-republican thought and deliberative democracy equally fail to support the Court’s new position. The Court blithely avers that, as Justice Scalia put it, “the American people are … fully capable of considering both the substance of the speech presented to them and its proximate and ultimate source” (p.173). This statement ignores modern research on public opinion and persuasive communications and also, though Kuhner does not mention it, totally ignores the huge role of “dark money” from undisclosed sources in today’s campaigns. Finally, though the Court’s frequent appeals to the specter of censorship employ the terminology of deontological liberalism, Kuhner shows that its defenses of corporate speech are actually consequentialist.
None of these theories of democracy, he concludes, makes the Court’s work coherent and plausible. A more direct explanatory thesis appears later in the book: “The power of ideology explains the Court’s stance and emphasizes the fact that social systems, even oppressive ones, are commonly believed to be just by those who administer them” (p.287).
Chapter 6, Plutocracy, elaborates on the need for a proper boundary between the economic sphere of the market and the political sphere of democratic governance. Maintaining any boundary is difficult, since capitalism inherently tends to extend market relations to ever-wider ranges of social phenomena. Today, we have thriving markets for government offices and public policy, threatening to drown out the significance of universal suffrage. Surviving regulations on political finance are hard to enforce and riddled with loopholes. Profit-making lobbying, consulting, and media firms play dominant roles. (Here, the democratic potential of the internet is a curious omission from Kuhner’s analysis.) Acknowledging that there is plenty room for controversy over the meaning of corruption, the value of equality, and the precise impact of political spending, he insists that several points are beyond dispute: the distorting effects of candidates’ dependency on money, which gives undue influence to those with money to spend, and the resulting decline of public faith in the system.
Despite his title, Kuhner is by no means a radical critic of capitalism: “Capitalism may well be the most just system of social stratification yet invented” (p.229). Markets reward and thus incentivize the creation of wealth. Further, money in politics, backed by rights of property and contract, can be a check against tyranny of the majority and government meddling in the marketplace. Our democracy and capitalism are not irreconcilable foes, [*365] but in a largely symbiotic relationship. A collective action problem arises, however, when businesses spend, not to achieve overall prosperity, but to obtain government subsidies and regulations that harm commercial rivals.
Chapter 7, Capitalism and Democracy Reconciled, takes an interesting turn in theorizing the relationship between capitalism and democracy. Conflicts between the imperatives of capitalism and those of other religious, moral, or political systems are only one dimension of the problem. There are also tensions within capitalism itself: “If the incentives within political markets go against the integrity of capitalism itself, then capitalism and democracy would be allies in the struggle for political finance reform” (p.239). Here Kuhner invokes Adam Smith’s defense of capitalism as an emancipatory system subject to the laws of justice. Ayn Rand condemned businessmen who induced government to grant them special advantages by “the manipulations of little lawyers and public relations men pulling the strings of lifeless automatons.” Kuhner agrees: “the political market bypasses the economic market, achieving economic advantages in a way that is corrupt from a capitalist standpoint” (p.244).
“Crony capitalism,” he continues, is an accurate description of our present economic system because it allows for all sorts of rent seeking by all sorts of actors…. Given its bias towards large firms, crony capitalism is the enemy of entrepreneurial capitalism and, indeed, competitive capitalism itself.... The political finance limitations supported by the overwhelming majority of Americans can now be seen as protecting capitalism, not just democracy” (pp.249-250). Government intervention is not an inherent threat to capitalism, for government inaction can also result in huge externality costs. “Capitalists and capitalism do not have the same goals. That is the trouble” (p.257).
Finally, Kuhner returns to the question, what legal principles would be necessary to protect the political sphere from economic encroachment? Observing that the Court, whatever its composition, lacks power to enact the needed reforms, he urges the need for a constitutional amendment. He fails to note that in SAN ANTONIO INDEPENDENT SCHOOL DISTRICT V. RODRIGUEZ, the Court declined to expand equal protection doctrine by strictly scrutinizing a law that discriminated on the basis of wealth. That points to one route that a possible amendment or shift in Court doctrine might take.
It is rather disappointing that law professor Kuhner does not propose, endorse, or defend the sufficiency of any specific amendment, saying only that to the separation of governmental branches and the separation of church and state, a third separation must be added: the separation of economic from political power. He endorses principles including that money is not speech, corporations are not citizens, and democratic integrity is the essential state interest, but does not translate these into legal language. However, he had earlier identified some specific legal reforms that could be constitutionally codified, or conceivably made clearly constitutional by a more broadly worded amendment: “Expenditures by parties, candidates, and even citizens could be limited, corporate expenditures could be abolished, public financing for parties [*366] and campaigns could be much stronger or even mandatory, the media could offer rights of public access or the government could fund serious alternatives to dominant private players, and the election season could be restricted so as to prevent the need for constant fundraising” (p. 214).
Despite some flaws of redundancy, organization, and occasional purple language, Kuhner has done an excellent job of detailing and analyzing a very significant political and legal problem. If he is less successful in explaining how the Supreme Court came to be at the heart of the problem or in identifying workable solutions, perhaps that is asking too much. The book is essential for those interested in election law or campaign finance reform, and makes useful contributions in the fields of political economy and democratic theory.
AUSTIN V. MICHIGAN CHAMBER OF COMMERCE 494 U.S. 652 (1990).
BUCKLEY V. VALEO 424 U.S.1 (1976).
CITIZENS UNITED V. FEDERAL ELECTION COMMISSION 130 S.Ct. 876 (2010).
FIRST NATIONAL BANK OF BOSTON V. BELLOTTI 435 U.S. 768 91978).
MCCONNELL V. FEDERAL ELECTION COMMISSION 540 U.S. 93 (2003).
MCCUTCHEON V. FEDERAL ELECTION COMMISSION 572 U.S. ___ (2014).
SAN ANTONIO INDEPENDENT SCHOOL DISTRICT V. RODRIGUEZ 411 U.S.1 (1973).
Copyright 2014 by the Author, Daniel Hoffman.