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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 ] |