Vol. 27 No. 2 (February 2017) pp. 39-41
PLUTOCRATS UNITED: CAMPAIGN MONEY, THE SUPREME COURT, AND THE DISTORTION OF AMERICAN ELECTIONS, by Richard L. Hasen. New Haven and London: Yale University Press, 2016. 256pp. Cloth $32.50. ISBN: 9780300212457. Paper $22.00. ISBN: 9780300223545.
Reviewed by Alex Keena, Department of Political Science, University of Richmond. Email: firstname.lastname@example.org.
What are the dangers of money in American elections? How has the Supreme Court balanced the threat of political corruption with free speech? Can campaign finance law adequately promote the values of political equality and anti-corruption without infringing upon political speech? Richard L. Hasen explores these topics and others in his timely analysis of campaign financing in a post-CITIZENS UNITED world.
Hasen’s analysis is at once nuanced and accessible, and he provides a coherent and forceful argument for dramatic reform of federal campaign finance law based on a joint system of publicly-funded campaign vouchers along with maximum contribution limits. The result is a system that promotes, rather than represses, political speech by expanding access to campaign giving, and prevents the appearance of political corruption by imposing reasonable limits on individual contributions.
While Hasen’s argument is provocative and compelling, the strength of PLUTOCRATS UNITED is undoubtedly his analysis and assessment of the legal debate that has evolved on the topic of campaign finance law both within the courts and among reformers since the 1970s. As Hasen asserts, this debate has centered on the conflict between political corruption and free speech and has largely ignored the effects of campaign spending on political equality and fairness. Hasen traces this debate to the Supreme Court’s hostility toward political equality as a legitimate end for restricting political speech through campaign expenditure limits. Because the Court has appeared more sympathetic to campaign finance restrictions that serve the interest of promoting “anti-corruption” (at least until recently), the debate among reformers has centered on mitigating the supposed corrupting influence of money in elections.
But as Hasen persuasively argues, in avoiding the defense of political equality as a legitimate rationale for campaign restrictions and by doubling down on the goal of preventing corruption (or the appearance thereof), supporters of campaign finance reform have overlooked the most troubling consequences of unrestricted political spending: its unequal effects on political access and influence. To this end, Hasen challenges the core assumption, which is often repeated by reformers and politicians on the left, that money corrupts politicians and “buys” elections. In Chapter 2, he presents a systematic and comprehensive review of the scholarship on the actual effects of campaign money and finds that there is little evidence to support such claims. For one, lots of money is poured into elections in support of both Democrats and Republicans. As a tactic for winning elections, spending big does not appear very effective. Second, there is little evidence that politicians switch their votes in exchange for contributions. After all, the limits on contributions to candidates from individuals and committees are such that few politicians would risk their career or their electoral security in exchange for a single donation of a few thousand dollars.
But what money does buy is political access, and this is precisely why the “anti-corruption” defense is both misguided and insufficient as a justification for campaign finance regulation. As congressional campaigns have become increasingly expensive to run, members of Congress must devote more of their time soliciting donations and asking for money, and as a consequence, more of their attention toward [*40] donors. In this regard, the campaign finance status quo exasperates the unequal access and attention that donors receive above everyone else. Although this set of arrangements does not fit the classic mold of “corruption,” it suggests equally troubling consequences for democracy. In essence, the ability to donate money to a campaign determines one’s ability to access political representation, and because money is critical to running a campaign, it biases the candidate selection process toward the candidates who serve the interests of the wealthy and affluent.
Ultimately, this view of the harmful effects of unfettered election spending on democracy suggests that a different approach to campaign finance regulation is needed—one that serves both the goal of preventing corruption of politicians (or the appearance of corruption) and the goal of political equality. Hasen’s solution is a two-pronged approach. First, he outlines a robust public financing system aimed at creating a “level playing field” for accessing and influencing candidates by making political giving accessible to the entire electorate rather than exclusively the most affluent. In a nutshell, Hasen’s proposed public voucher system would provide every citizen with a $100 voucher to spend freely on elections in order to promote political speech among those underrepresented in the donor class. Although $100 may not sound like much compared to the very large contributions of the most affluent donors, collectively, the influence of newly-empowered “small” donors would provide new opportunities for candidates advocating popular policies without having to cater to affluent donors during the “invisible” primary. And as Hasen convincingly argues, because such a system would amount to a “leveling up” rather than a “leveling down” of political speech (it would not prevent affluent donors from spending their own money if they chose to do so), it would be difficult to attack as an infringement of political speech by opponents. After all, who can reasonably argue that increasing the political speech of others in society represents an unconstitutional infringement of their own speech? In this regard, the public voucher system does not advance equality by restricting speech, but by increasing it. It addresses the inequality problem by pitting speech against speech, and thus (in theory) is less objectionable to conservative opponents.
The second component of Hasen’s solution is to impose ceilings on individual contributions to candidates and PACs and aggregate contributions to all candidates during an election season. Although Hasen’s proposal of $25,000 maximum contribution per candidate will likely please no one—critics on the left will argue that it represents an unjustifiable expansion of the current $2700 maximum, while critics on the right are likely to object to any limits on individual contributions—he makes a convincing case that such limits are sufficient enough to prevent corruption, or the appearance of corruption, without imposing impermissible restrictions on political speech. After all, a gift of $25,000 is a drop in the bucket by today’s standards, and as it stands, very few donors actually reach the current $2700 per candidate limit so it’s not clear that raising the maximum would dramatically alter the status quo.
Although Hasen’s proposal is compelling and he makes a powerful case for embracing the “equality” approach to campaign finance reform, the political feasibility of his plan is questionable. For a Republican-led Congress, campaign finance reform is a non-starter, but even if such legislation were to pass (perhaps at the state level), it is unclear the current Supreme Court would uphold such a law, given the hostility of the Roberts Court toward any form of campaign finance regulation.
Hasen also leaves many questions unsettled, such as the effects of increased small donor activity on candidate selection. Although he rightfully dismisses the dubious claim that small donors polarize candidates, the precise effects of small donor support on legislative behavior remain largely unexplored empirically. Another important question is whether the influx of cash would substantively alter how the mass media disseminates information about candidates. As the 2016 presidential election illustrated, television news has an incentive to cover the most sensational and provocative candidates. [*41] For Bernie Sanders, an unprecedented level of grassroots support did not translate to media coverage, which perhaps doomed his campaign.
But such questions are best left for future scholars to untangle. The significance of PLUTOCRATS UNITED is not in the political blueprint it provides to reformers, but in the bold set of ideas it advances. Hasen’s analysis will almost certainly transform the campaign finance debate for years to come and shift the focus toward the effects of money in elections on a bedrock principle of American democracy, political equality.
The book is recommended for anyone with an interest in campaign finance and is ideal assigned reading for undergraduate and graduate courses on election law, political representation, and inequality.
CITIZENS UNITED V. FEDERAL ELECTION COMMISSION 558 U.S. 310 (2010).
© Copyright 2017 by author, Alex Keena.