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Voiding Checkbook Politics | The Nation

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Voiding Checkbook Politics

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Even as campaign finance reformers celebrated the long-awaited passage
of the McCain-Feingold bill this spring, they cautioned the public not
to assume the fight for reform was over. "This bill will only thwart the
special interests for so long," Senator McCain himself predicted.
"Twenty years from now, they will have figured out other ways to get around it, and another
couple of senators will be fighting to break the endless cycle of
corruption and reform." While McCain-Feingold is a significant
legislative accomplishment that will help to plug the gaping soft-money
hole in the existing system, these reformers explained, there are still
gaps through which private money can exert undue political
influence--and the fight to close them is just beginning.

This is the way campaign finance reform has worked since the first piece
of remedial legislation was passed in 1907--a cycle of public outrage,
stopgap legislation and new forms of abuse, prompting further outrage.
Lasting solutions have so far proven elusive--in large part because of
the Supreme Court's 1976 Buckley v. Valeo ruling that campaign
spending limits are unconstitutional. So reformers are stuck fighting
with more or less the same tools they've always used: contribution
limits, voluntary spending limits, public financing and full disclosure
of funding sources.

The limited effectiveness of these tools has prompted two Yale Law
professors, Bruce Ackerman and Ian Ayres, to offer a radical rethinking
of the problem. Ackerman--who last attracted public notice with his book
The Stakeholder Society, in which he proposed to eliminate
chronic economic injustice by giving every young American adult a stake
of $80,000, financed by an annual wealth tax--and Ayers clearly have no
qualms about tackling big problems. Their new book, Voting With
Dollars
, starts with a simple and seductive question: If the old
reform tools aren't working, why not try new ones? Rather than imposing
increasingly complicated contribution and spending limits, they suggest
removing them. Rather than relying on bureaucracies to distribute public
funds to candidates, they say, let the voters do it directly. And rather
than mandating complete disclosure of politicians' funding sources, they
propose keeping such information completely secret--especially from the
politicians themselves.

At the core of Ackerman and Ayres's proposal is what they call the
"secret donation booth." Like votes, the authors argue, campaign
contributions should be made anonymously. That way, private interests
could not influence elected officials with their money, because there
would be no way for a contributor to prove that he had given money to a
candidate. (So as not to discourage citizens of average means from
donating modest amounts by denying them the ability to take credit for
their gifts, Ackerman and Ayres permit the government to confirm that a
donor has given up to $200.)

Just as the introduction of the secret ballot in the late nineteenth
century put an end to the then-common practice of vote-buying, the
authors assert that the implementation of a secret donation booth (in
actuality, a blind trust administered by the FEC) would eliminate
influence-buying. Sure, John Richman might claim he's given a million to
Jane Candidate, but such unverifiable talk is cheap, and politicians
will attach to such assurances the same minimal weight they attach to
promised votes. Once that avenue of political influence is closed off,
Ackerman and Ayres reason, donors interested solely in the corrupting
power of their contributions will have no reason to pour their money
into politics, and private giving will be left to those few donors
motivated by pure political ideology.

To make up for the funds that would be lost once this private money
leaves the system, Ackerman and Ayres propose that the government give
every registered voter fifty "Patriot dollars"--money they'd be able to
put toward whichever federal candidate, national political party or
interest group they wanted, simply by going to their local ATM. Based on
voter participation numbers from the 2000 election, Ackerman and Ayres
calculate that the Patriot system would infuse $5 billion into a federal
election cycle, dwarfing the $3 billion that was spent in 2000. Thus,
they reason, Patriot dollars would not only insure that viable
candidates had enough money to fund their campaigns but would also make
them dependent on funds from, and thus more responsive to, the
electorate as a whole.

So far, so good. And there's more: In addition to the secret donation
booth and the Patriot system, "voting with dollars" would produce two
compelling side effects.

First, by giving each registered voter fifty Patriot dollars to spend on
the election, citizens would be encouraged to inform themselves earlier
and more thoroughly about issues and candidates, so as to make the best
use of their allocation. This heightened civic engagement would likely
translate into higher voter turnout and a consistently better-informed
electorate--what Ackerman and Ayres call "the citizenship effect."
Second, by avoiding all spending limits, a common plank of more
traditional reform platforms, "voting with dollars" would not run afoul
of the Supreme Court, which famously ruled in Buckley that "the
concept that government may restrict the speech of some elements of our
society in order to enhance the relative voice of others is wholly
foreign to the First Amendment."

In theory, then, "voting with dollars" has lots of appeal. It's a fresh
approach to an old problem; it promises to reinvigorate a tired
electorate; and it's Supreme Court-proof. Not satisfied with a theoretical discussion of their proposal,
however, Ackerman and Ayres devote the bulk of their book to describing
what their reform would look like in practice. And this is where they
run into trouble.

To be sure, many of their implementation mechanisms are impressively
well-researched and carefully crafted, and at first they make it seem as
if "voting with dollars" just might work. To prevent a donor from
getting around the anonymity of the donation booth with an unusually
large contribution, for example, the authors propose to enter large
contributions into a candidate's account in random amounts at random
intervals, according to a special "secrecy algorithm." That way, the
donor couldn't simply tell the candidate to expect his account to
increase by a certain amount on a certain date, and then claim the
credit. (Ackerman and Ayres would bar what they call "stratospheric"
contributions to eliminate amounts too large to be hidden even by their
secrecy algorithm.) A donor would also be unable to prove he'd
contributed by flashing around a canceled check made out to the blind
trust, since all contributions would be revocable for a five-day period,
giving the donor no way to prove he didn't simply ask for his money back
the next day.

In spite of these intricate measures, however, there are a few reasons
Ackerman and Ayres's implementation scheme is fatally flawed. First, no
matter how refined your secret donation booth is, candidates will always
be able to figure out where their money's coming from. For proof of
this, one need look no further than our current voting system. Even with
the secret voting booth, candidates use polling, voter registration
rolls, demographic data and a host of other increasingly sophisticated
tools to figure out with eerie precision who's going to support them,
and they target their campaigns accordingly. Similarly, while a secret
donation booth would prevent politicians from knowing precisely how much
money each individual or privately funded PAC is giving, candidates
would still have a pretty good idea of who their big donors were likely
to be, and they'd still grant those likely donors uncommon access--a
politician's most valuable resource. Even if the secret donation booth
had been in place during the 2000 election, for instance, George Bush
would still have asked Ken Lay for fundraising help (by, say, organizing
a fundraising dinner--a permissible activity under Ackerman and Ayres's
paradigm, as long as there's not a per-plate charge). And Ken Lay would
still have been invited to meet with Dick Cheney's energy task force
once the pair was in the White House.

Then there's the problem of independent expenditures. Ackerman and Ayres
are sharply critical of McCain-Feingold's attempts to rein in such
electioneering, calling the act's restrictions on such spending in the
months leading up to an election an "important weakness" that "restrains
free speech." (Because of arguments like this, these restrictions are
widely held to be the most vulnerable part of McCain-Feingold. In June
the FEC barely rejected a proposal that would have significantly
weakened the act's independent expenditure restrictions, and upcoming
court challenges target these restrictions as well.)

And yet, independent expenditures are a significant obstacle to any
attempt to reduce private money's role in politics, as they allow any
individual or interest group with money the chance to make an end run
around the regulated campaign finance system. Conventional attempts to
curtail these expenditures may not solve the whole problem, limited as
they are by the First Amendment, but they're better than the unregulated
alternative that Ackerman and Ayres propose. In their reform scenario,
independent "issue" campaigns that do not explicitly endorse a
candidate--according to the Court's limited definition of express
advocacy, which focuses on certain "magic words" such as "elect" and
"vote for"--would be unregulated. In other words, organizations would be
free to fund "issue" ads whose timing and content are obviously intended
to help a particular candidate, as well as to publish the identities of
their contributors and the magnitude of their support, as long as those
ads didn't explicitly tell you how to vote. One can only imagine that in
the anonymous "voting with dollars" world, this opportunity to claim
credit for expenditures clearly designed to help a particular candidate
would be all the more alluring. And yet the only remedy Ackerman and
Ayres offer is their statute's "swamping control," which would increase
Patriot allotments in the next election cycle whenever private spending
skewed the national Patriot/private ratio below 2 to 1. Other than this
after-the-fact correction, Ackerman and Ayres offer no barriers to
prevent private money from flowing to such unregulated channels.

In the end, Ackerman and Ayres's paradigm is handicapped by its
Court-centered approach. The authors chide traditional reformers for
painting Buckley v. Valeo as the primary roadblock to reform,
saying that such a view is both counterproductive, because the Court is
unlikely to reverse Buckley anytime soon, and wrong, because
Buckley upholds such fundamental constitutional principles as
free speech. By embracing Buckley, they argue, their approach is
more pragmatic and more principled. And yet, its legal pragmatism
notwithstanding, "voting with dollars" does not confront the central
injustice of the current system: the exorbitant influence of big money.
In focusing solely on ending the potential for quid pro quo
corruption--the one aspect of campaign finance that the Court has
consistently shown itself eager to regulate--Ackerman and Ayres downplay
the degree to which private money controls politics even without such
blatant dealmaking. The truth is, as long as politicians are dependent
on private money to finance their campaigns, monied interests will play
a disproportionately large role in setting the political agenda. This is
why traditional reformers have chafed at Buckley's narrow
definition of corruption, and it's why they continue to advocate
solutions that use a combination of disclosure laws, limits and public
financing. At its core, the campaign finance reform movement is about
more than simply putting an end to under-the-table deals between wealthy
individuals and unscrupulous politicians. It's about opening up the
electoral system, so that people without networks of wealthy friends
will be able to wage viable campaigns for public office, and won't be
beholden to private interests once they get there. While Patriot dollars
are a good step in this direction, they don't go far enough. Without
contribution and spending limits, the public financing offered by
Patriot dollars would quickly be drowned out by the torrents of private
money flowing into the system.

For all its shortcomings, Voting With Dollars deserves credit for
pushing reformers to rethink some of their cherished assumptions about
what works, and what's desirable. However, by refusing to consider more
standard approaches to reform like disclosure, contribution limits and,
in particular, voluntary public financing systems like those currently
in place in Maine and Arizona, Ackerman and Ayres have boxed themselves
into an unworkable system. Ultimately, Voting With Dollars'
radical approach to campaign finance reform would expand big money's
role in politics, rather than insulate democracy from it.

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