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.