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Among the tantalizing myths of Bernie Sanders's campaign (or should I say "political revolution") is the promise that he will overturn Citizens United and "get big money out of politics" once and for all. Then, once we get rid of the "corrupt campaign finance system," progressive legislation will naturally follow.
As Sanders put it in a recent Democratic debate:
Do you know why we can't do what every other country — major country on Earth is doing? It's because we have a campaign finance system that is corrupt, we have super PACs, we have the pharmaceutical industry pouring hundreds of millions of dollars into campaign contributions and lobbying, and the private insurance companies as well.
In this statement, Sanders is doing two things common among many progressive activists. First, he's using the language of corruption to describe our campaign finance system. Second, he's positing that absent this corruption, his preferred policy would of course be enacted.
The discourse of "corruption" has been common in campaign finance reform circles for a long time, but especially so since Citizens United. That's because the Court was pretty explicit in Citizens United, and again in McCutcheon, that corruption was the only legitimate means of regulating campaign finance, reiterating the basic principles of the landmark 1976 campaign finance case Buckley v. Valeo.
In response to Buckley's emphasis on corruption, campaign finance reformers have spent decades trying to prove the system is "corrupt," searching for the still-elusive proof that would convince conservative justices.
And progressive activists have picked up this language for the same reason as Sanders has: Not only does it poll well, but it also provides an alluringly simple answer for why we don't have policy X.
Rick Hasen sees this focus on corruption as a dead end. Hasen is a law professor who's written an excellent new book, Plutocrats United: Campaign Money, the Supreme Court, and the Distortion of American Elections, making the case that equality, not corruption, ought to be the justification for regulating campaign finance.
"The constitutionality of campaign finance laws should not turn on whether we can fit an argument about influence into the anticorruption box," writes Hasen. "Advocates and scholars have made no judicial headway by arguing for expansive definitions of corruption. It is time to move beyond the semantic battle and to defend political equality head-on."
By political equality, Hasen specifically means "equality of inputs." Equality of inputs is a measurable standard, particularly if we measure it in terms of money contributed. By contrast, corruption is ultimately impossible to prove because it requires agreement on what the political system would produce absent some said corruption. If you can find me a universal definition of the public interest measured in policy outcomes, please send it. I've never seen one. All I've seen is vehement disagreement over the public interest.
Therefore, Hasen writes, "Given that we have fundamental disagreements over the meaning of the public interest, the best we can do is to define the public interest procedurally, by ensuring that every voter has a roughly equal chance to influence policies and elections."
In other words, equality of inputs. That's the basic principle behind our "one person, one vote" laws. Poll taxes are unconstitutional because they interfere with that principle. We don't give rich people more votes because they have more money. And in our legal system, Hasen writes, "We do not believe that somebody should get more justice just because she has much more money than her opponent." The principle of equality governs most of our political processes — so why should campaign finance be different?
Hasen's jurisprudential lodestar is the 1986 FEC v. Massachusetts Citizens for Life case, which upheld FEC rules prohibiting corporate independent expenditures on the grounds of equality. The Court said it was totally legitimate to prevent "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 corporate political idea." This principle was reaffirmed by the Court in the 1990 Austin v. Michigan Chamber of Commerce case.
Then came Citizens United, which reversed precedent to make it okay for corporations to spend unlimited amounts on independent expenditures, concerns about equality and distortion be damned. Here's what the Court said (and I paraphrase very generously): Screw the stupid equality argument. That's no reason to regulate campaign finance law. The only reason to regulate campaign finance is corruption. But because corporations are just expressing their free speech rights independently of candidates (making "independent expenditures"), there's actually no worry about corruption.
Hasen sees the tossing out of the equality rationale as the great sin of Citizens United, not its narrowing of what counts as corruption. And rather than playing the Roberts Court game of making corruption the only rationale for regulating campaign finance (as others have), Hasen wants to go back to the earlier case law and widespread principle of political equality. In his view, corruption is too flimsy a justification for regulating campaign finance. Equality is firmer grounding.
Perhaps this is because Hasen has looked at the political science literature closely. He knows that after piles of studies, there's no clear pattern of money translating directly and reliably into votes or elections. That's not to say that money doesn't matter. It clearly determines who runs for office, and what priorities those candidates emphasize and deemphasize. It limits the range of possible policy outcomes. And it almost certainly grants donors priority access.
But politics is a complicated and unpredictable mix of ideologies and passions and institutional rules and norms and a thousand other factors that also sometimes matter. It's a complex system that has never experienced a pure, uncorrupted state. It's really, really hard to prove corruption.
This is why I agree wholeheartedly with Hasen: Let's focus on balancing the inputs, while accepting that the outputs may deviate from what any of us would want for any number of reasons. And let's not simply assume that if you don't get single-payer health care, the only possible explanation is that we have a corrupt campaign finance system.
Hasen's idea is to balance out the campaign finance system by giving everybody $100 vouchers. Just like we give everybody the same number of votes (one), we could also give everybody the same amount of money to contribute to candidates (or groups).
"In my plan," Hasen writes, "voters could give voucher money to candidates, to political parties, or to outside groups, which could in turn use it for campaign advertising and other activities. Entrepreneurs would arise to collect voucher dollars, and public support for candidates, parties, and groups should more closely match the support for such groups in society as a whole."
Something like Hasen's voucher plan was actually approved by Seattle last November. So now we will have a real-world test as to whether this works. (My colleague Mark Schmitt has some smart thoughts about what to look for).
In a lawyerly way, Hasen spends three chapters dismissing the possible objections to his approach, making clear the advantages. Mostly, the big advantage of the "leveling up" approach (i.e., bringing in more small donors) is that it doesn't get dragged into debates over whether money is a form of speech and campaign finance regulation is therefore a form of censorship. "More speech from more people," writes Hasen, "is not censorship, but rather a recipe to promote both political equality and the First Amendment."
In reading Plutocrats United, I found myself doing a lot of nodding to myself. I am on board with Hasen — equality is a much more sensible and practical justification for regulating campaign finance.
But Sanders gets big applause lines when he says things like, "We can no longer continue to have a corrupt campaign finance system." Corruption polls well. That's the reason Larry Lessig has used it in his various political adventures.
And for decades, campaign finance reformers have played to the central role that the Court gave corruption in Buckley. They've now spent four decades trying to prove that our campaign finance system is "corrupt," searching for that always elusive evidence that would somehow convince the Court.
But they haven't succeeded. At what point is it time to accept Einstein's famous definition of insanity: "doing the same thing over and over again and expecting a different result"? Maybe that time has finally come.
