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on a candidate election, and that candidates were required to raise
all their resources from such contributions. If they spent lots of time
fund-raising, perhaps that would be a good thing: they would be
required to meet with large numbers of potential contributors, and
might learn from those discussions, but without the current bias in the
pool.
Are contributors getting favors in return for their money? Perhaps;
but even if they are not, a large problem of political fairness remains.
The idea of political fairness is captured by the requirement in the
principle of political equality mandating that citizens have equal
opportunities for political influence. The vote is one form of influence,
and the one-person/one-vote requirement is an important implication
of the idea of equalizing opportunities for effective political influence.
But when money is as important a political resource as it is in our
current system, control of it is an important source of political influ-
ence. It enables people to run for office, to support electoral efforts
financially, and to join together with like-minded others with the aim
of persuading fellow citizens on some issue of public concern. A system
that does not regulate the flow of money or provide (as in a system
of public finance) alternatives to relying on private money provides
unequal opportunities for political influence. It provides channels of
influence to wealthier citizens that are effectively unavailable to others,
who are equally motivated and equally able, but lack the resources
required for using those channels. Do these channels of influence over-
whelm others? Do they establish decisive forms of power? Clearly they
are not always decisive. But it seems clear, too, that we will never have
conclusive answers to questions about the relative importance of dif-
ferent avenues of influence. What we can say is that the current legal
structure establishes a channel of influence that is effectively open to
some and not others. That is itself the problem, however precisely this
opportunity translates into power over decisions.
60 Joshua Cohen
So the principle of political equality in particular, the norm of equal
opportunity for political influence raises serious troubles for the
current system of finance.
5 Constitutional Landscape
What might be done to remedy this situation? To answer this question,
I start with the constitutional landscape.
In the 1976 case of Buckley v. Valeo, the Supreme Court heard a chal-
lenge to the Federal Election Campaign Act (FECA) of 1971, as
amended in 1974.25 The Court s assessment was mixed: some parts
were upheld, some not. But the details of the decision matter less than
the framework of analysis and argument announced in it. That analytic
framework comprises two key elements.
First, the Buckley Court held that  money is speech : meaning that
spending money on politics both contributions to campaigns and
expenditures (by candidates or individual citizens or organizations)
has First Amendment protection. Indeed, as political speech, it lies at
the core of the First Amendment. For the First Amendment is centrally
(though not exclusively) about protecting political speech from regu-
lation, as a necessary condition for assuring the popular sovereignty
rather than governmental sovereignty that defines the American
constitutional system.
The argument that spending is, for constitutional purposes, pro-
tected political speech proceeds as follows:  contribution and spend-
ing limitations impose direct quantity restrictions [emphasis added] on
political communication and association. . . . A restriction on the
amount of money a person or group can spend on political communi-
cation during a campaign necessarily reduces the quantity of expres-
sion by restricting the number of issues discussed, the depth of their
exploration, and the size of the audience reached. This is because vir-
tually every means of communicating in today s mass society requires
the expenditure of money. . . . The electorate s increasing dependence
on television, radio, and other mass media for news and information
has made these expensive modes of communication indispensable
instruments of effective political speech. 26
So sending messages requires money, and restrictions on money
therefore restrict such sending: they limit the  quantity of speech.
The quantity of speech is an important constitutional value not simply
because speakers have an interest in advancing their views, but
because audiences citizens, as the ultimate political authority
have an interest in the fullest airing of issues, without control by
government over what is said or how much is said. Citizens may
Money, Politics, Political Equality 61
of course tune the messages out, but because of the audience/
citizen interest, state restrictions on the quantity of speech face a chilly
reception.
More particularly, the Court held that contributions and expendi-
tures both have First Amendment protection, but that regulations of
contributions are less offensive to the First Amendment than regula-
tions of expenditures. Contributions are lower in the constitutional
scale in part because the principal value of a contribution lies in the
fact that it is given, quite apart from its size. Though contributing more
reveals greater intensity of support, it does not itself add to the content
of the basic message, which is  I support Jones. This claim here I
plead against interest strikes me as preposterous. Giving lots of
money might well express a different belief than giving a smaller
amount: namely, the belief that the candidate I contribute to is a much
better candidate than the competitor, and that it is very important that
he or she be elected. Apart from this implausible consideration about
the independence of the content of the message sent by a contribution
from the magnitude of that contribution, the Court also noted that if
contributions are regulated, citizens still have other ways to get their
message out by spending in ways that are not coordinated with a
campaign.
Neither in Buckley nor elsewhere does the Court contemplate the pos-
sibility that electoral speech though assuredly political should be,
as a general matter, easier to regulate than political speech more gen-
erally, easier, say, than nonelectoral, political speech in the public
sphere. This possibility might have been defended along the following
lines:27 the Court might have treated speech in the electoral setting gen-
erally along the lines that it has treated speech in the setting of ballot
access law. Thus the Court has generally taken the view that restric-
tions on ballot access say, restrictions on write-in ballots that prevent
voters from writing in Daffy Duck or restrictions on fusion candidates
that prevent third parties from cross-nominating major party candi-
dates are permissible because the point of ballots is to select office- [ Pobierz całość w formacie PDF ]
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