October 16, 2013
This month, former Federal Election Commissioner Hans von Spakovsky and Roy L. Furman Professor of Law Lawrence Lessig debated the issue of campaign finance reform. After the 2010 Supreme Court decision in the Citizens United case, the issue of campaign finance has continued to be hotly contested in policy circles. This term, the Supreme Court is yet again examining the constitutionality of campaign finance regulations in McCutcheon v. FEC.
The event, "Campaign Finance Reform and Free Speech," held on Oct. 4 at Harvard Law School's Wasserstein Caspersen Clinical Wing building, was sponsored by HLS's Federalist Society.
Since Buckley v. Valeo, the Supreme Court has considered limits on expenditures unconstitutional but has permitted limits on contributions.
On McCutcheon v. FEC, von Spakovsky argued that there is no rational justification for why McCutcheon contributing to 15 candidates is not corrupting whereas contributing to 32 candidates is. Money is advocacy, he argued, and an individual ought to be able to support all of the candidates who represent his position on issues that matter to him. He also rejected the notion that there is too much money in politics, noting that we spent $6 billion on elections and $6.2 billion on food and candy ads as a nation this year and that surely we need more information on who should run the country than on what food and candy to purchase.
He closed with the idea that money does not cause the quid pro quo corruption that people fear. He argued that politicians are driven more by ideology and the need for reelection than they are by their contributors. Instead, money helps challengers even the odds in races against incumbents. Limits on contributions protect incumbents rather than create a fair system.
Lessig agreed that money has First Amendment protections, especially for expenditures. He also agreed that maybe more money in politics in general would be fine. He had two major points of disagreement: He believes that there is corruption happening under the current system, although a different kind than quid pro quo; and he believes that contributions do affect how politicians act.
Lessig argued that fighting corruption is a strong governmental interest that justifies limits on First Amendment speech in the form of contributions. He shared the details of a research project demonstrating that the framers of the Constitution were concerned about improper dependence in a system of influence. Madison wrote about creating the right kind of dependencies in government. Lessig said he is concerned that American politicians are becoming improperly dependent on some people more than others because of the very limited number of contributors who have the resources to make heavy contributions.
"My claim is in a system where candidates are spending 30-70% of their time dialing for dollars from this tiny, tiny fraction of America, they have manifested a dependence upon this tiny, tiny fraction of America," said Lessig. "And that dependence … is a corruption of Madison's design."
Ultimately, Lessig is concerned that if McCutcheon wins and aggregate limits are removed, that tiny fraction which influences elections will be narrowed further.
Lessig also rejected the notion that contributions do not affect politicians' votes. While he conceded that money may not affect their votes in cases involving their top ten priorities, he said he is concerned that it affects lower priorities. Recent studies show a correlation between the priorities of the top 20% in wealth and the actions of Congress, while no correlation exists between the priorities of the bottom 80% and what Congress does. While this does not directly prove the effects of contributions, said Lessig, it gives some evidence that Congress is improperly dependent on specific people rather than all of the people.
Watch video of the debate (or watch it in QuickTime):