This article in yesterday's
New York Times, is really a paid
advertisement that I ran to support my
recent arguments about campaign finance in
my C24 class. I have added bullet points
to underscore the points that cost me top
Paying Up Is Speaking Up
New York Times, October 24, 1999,
By KATHLEEN M. SULLIVAN
professor of constitutional law and dean at
Stanford Law School.
STANFORD, Calif. -- Those who claim that our
political system is awash in money, corruption and
influence peddling were predictably upset that the
Senate again defeated the campaign finance restriction
proposed by Senators Russell Feingold and John McCain.
The Senate's failure to ban "soft money" -- large
contributions to political parties that are made to
avoid tight restrictions on donations to candidates --
drew laments from editorial pages to corporate
boardrooms, where some business executives now plead,
"Stop us before we spend again."
- The advocates of new, improved campaign finance
reform are well-intentioned but misguided.
- Of course none of us wishes to live in a
plutocracy, where wealth alone determines political
clout. But as Senator Mitch McConnell noted in a
heated exchange with Senator McCain, American
politics today is far from "corrupt" in the
- And the most troubling features of political
fund-raising today are the unintended consequences of
earlier efforts at campaign finance reform.
Begin with the allegations of
"corruption." Contributions to candidates and
parties today do not line anybody's pockets, as
they did in the heyday of machines like Tammany
Hall. Vigilant media and law enforcement now nip
improper personal enrichment in the bud, as
politicians involved in the savings and loan
scandals found out to their detriment.
- Political money today instead goes directly
into political advertising, a quintessential form of
Our large electoral districts and weak
political parties force candidates to communicate
directly with large groups of voters. This depends
on the use of the privately owned mass media. Thus
getting the candidate's message out is expensive.
- Reformers sometimes decry today's political
advertising as repetitious and reductive.
- But it is not clear what golden age of
high-minded debate they hark back to; the
antecedents of the spot ad are, after all, the
bumper sticker and slogans like "Tippecanoe and
- Nor is there any doubt that restrictions on
political money amount to restrictions on political
Reformers sometimes say they merely seek
to limit money, not speech. But a law, say, barring
newspapers from accepting paid political
advertisements or limiting the prices of political
books would also limit only the exchange of money.
Yet no one would question that it would inhibit
political speech -- as do restrictions on campaign
Unfortunately, the Supreme Court only half
recognized this point when, in 1976, it struck down
limits on political expenditures while upholding
limits on political gifts. Expenditures, the Court
reasoned, may not be limited in order to level the
playing field, but political contributions may be
limited to prevent the reality or appearance that
big contributors will have disproportionate
influence. So we still have in place the 1974 law
limiting individual contributions to a Federal
candidate to $1,000 per election -- the equivalent
of about $383 in 1999 dollars -- and, perversely,
candidates must spend ever more time chasing an
ever larger number of donors.
- The Court's noble but flawed attempt at
compromise leaves us in the worst of all possible
worlds: government may limit the supply of political
money but not the demand.
- This is a situation that in a commercial
setting would produce a black or gray market, and
politics is no different. Instead of money flowing
directly to candidates, it flows to parties as soft
money, or to independent advocacy organizations for
issue ads that often imply support for or
opposition to specific candidates.
The next point is misguided. It shows that
Prof. Sullivan is a lawyer and not a
political scientist. I'm going to ask for
Political spending and speech thus have been
shifted away from the candidates, who are accountable
to the voters, to organizations that are much harder
for the voters to monitor and discipline -- a result
that turns democracy on its head.
Reform proposals such as McCain-Feingold proceed on
the assumption that the answer is to keep on shutting
down "loopholes" in the system. But in a system of
private ownership and free expression, we can never
shut all the loopholes down. If the wealthy cannot
bankroll campaigns, they can buy newspapers or set up
lobbying organizations that will draft legislation
rather than campaign ads. When the cure has been worse
than the disease, the solution is not more doses of
the same medicine.
Does this mean we should eliminate all campaign
finance regulation? Certainly not. Even if we give up
on contribution limits, we should retain and enhance
mandatory disclosure and public subsidies -- two kinds
of government intervention that are consistent with
both democracy and the Constitution.
- Mandatory disclosure of the amounts and sources
of political contributions enables the voters
themselves, aided by the press, to follow the money
and hold their representatives accountable if they
smell the foul aroma of undue influence.
Such disclosure is an extraordinarily
powerful and accessible tool in the age of the
And more widespread public subsidies, like those
now given in presidential and some state races, could,
if given early in campaigns, help political
challengers reach the critical threshold amounts they
need to get their messages out.
In ongoing debates about campaign finance reform,
it is worth remembering that free speech principles
bar the creation of ceilings on political money, but
they do not bar the raising of floors.