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Chapter 3
Money, Politics, Political Equality
Joshua Cohen
1 Introduction
In this paper, I discuss and criticize the current system of electoral
finance in the United States and the constraints on the reform of that
system imposed by the Supreme Court.
1. I begin by stating and discussing a three-part principle of politi-
cal equality (sec. 2), which I present as a partial statement of a norma-
tive ideal of democracy.
2. I argue that the current system of campaign finance conflicts with
the principle of political equality, in particular its requirement of equal
opportunity for political influence. Current arrangements establish, in
effect, a framework of inequalities of opportunity (secs. 3, 4).
3. I discuss the constitutional limits on reform initially set down by
the Supreme Court in the 1976 case of Buckley v. Valeo and reinforced
in a number of cases decided since then. These decisions substantially
limit the role that the value of political equality can play in shaping our
system of campaign finance. A regulatory scheme that gave weight to
that value by aiming to equalize opportunities for political influence
would (barring special assumptions about diminishing returns to polit-
ical investment) reduce the overall quantity of electoral speech. But the
Court has held that fundamental constitutional principles preclude any
restrictions on the amount of speech in the name of equalizing oppor-
tunities for political influence (secs. 5, 6).
4. I argue that the limits imposed by the Court reflect an unduly
narrow conception of democracy and the role of citizens in it, a con-
ception that like the elite theories of democracy that trace to Joseph
Schumpeter casts citizens exclusively in the role of audience for the
messages of elite competitors rather than political actors, as listeners
rather than, so to speak, content-providers.1 And I suggest that alter-
natives to the current system, founded on a less narrow conception of
democracy and the role of citizens in it a conception that does not
treat the elite-mass distinction as the central fact of political sociology
48 Joshua Cohen
might achieve a better reconciliation of expressive liberty and political
equality (sec. 7). In short, my central point is that the current system is
deeply troubling not simply because it subordinates democracy to
something else to property, or to an abstract and absolutist view of
freedom of expression but because it can be seen as founded on and
as constitutionalizing a narrow conception of democracy and citizen-
ship, and thus as precluding experimentation aimed at more fully
realizing democratic values.
I will not defend a particular proposal for reforming the system of
campaign finance, though for purposes of illustration, I will, from time
to time, refer to the voluntary public financing scheme recently
adopted by Maine voters in 1996, a variant of which was adopted in
Massachusetts in 1998. In essence, that scheme whose constitutional
standing remains uncertain (though it has been upheld thus far)2
finances candidate campaigns through a public fund, on condition
those candidates not raise or spend private money. So it combines
public subsidy with voluntary spending limits, incentives to accept the
limits as condition for receiving the subsidy (therefore incentives to
reduce the overall quantity of speech), some constraints (in the form of
reasonably low contribution limits) on private money nonparticipants,
and additional support for public money candidates who face large
private spending by opponents or large independent expenditures.3
One final prefatory note: as I was adding final touches to this paper
(in January 2000), the Supreme Court announced its decision in Nixon
v. Shrink, in which it upheld Missouri s statutory limits on campaign
contributions. Were I rewriting the paper now, I would make two
changes in light of the opinions in Nixon. First, I would change the dis-
cussion in section 6 to take notice of the fact that Nixon v. Shrink rejects
the idea that restrictions on the size of campaign contributions should
be subjected to the most demanding level of scrutiny. Second, and more
important, I would underscore that the vast majority of the Court now
seems willing to uphold campaign finance regulations enacted to
ensure a more fair democratic process. This willingness is explicitly
stated in Justice Breyer s concurrence, and is suggested as well by
Justice Souter (writing for the Court), who indicates that corruption of
democratic process is not confined to the financial quid pro quo. The
implications of this shift remain to be seen. But the apparent departure
in constitutional philosophy is cause for hope.
2 A Principle of Political Equality
In a democratic society, the members are conceived of as free and equal
persons. A principle of political equality for a democracy presents
Money, Politics, Political Equality 49
norms that are suited to persons thus conceived; it articulates values
that apply to democratic arrangements for making binding
authoritative and enforceable collective decisions; and it aims to
provide guidance about the appropriate design of such arrangements.
In particular, the norms are to guide judgments about voting rights,
rules for organizing elections and aggregating votes (ballot access,
systems of representation, electoral finance), and the organization of
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