« Foundations and Scrutiny | Main | Why they went "nuclear" »

"Intensity of Political Desire"

One of my defenses of the filibuster is that it is one of the few ways our democracy has to measure intensity of conviction. If 45 Senators feel absolutely passionately that, say, Janice Rogers Brown is way out of the judicial mainstream and doesn't belong on a federal court, but a majority feels that she's the president's choice and maybe her views are a little unusual, but the president's entitled to his choice, a 55-45 vote in favor of confirmation doesn't really reflect the average view of the body. But if the minority is forced to make some real sacrifices to hold up a nomination or a piece of legislation, to hold the floor and amass hours of argument, then you can  begin to measure the intensity of the opponent's conviction. And that's a good thing, rarely measured in a democracy in any way, except sometimes in a small way through complex preference voting systems.

Interestingly, I found the same concept discussed in a fascinating bit of writing about campaign finance reform that appeared recently: Judge Guido Calabresi's concurring opinion in a 2d Circuit decision upholding Vermont's law that includes mandatory spending limits. Since spending limits, but not contribution limits, were held to be unconstitutional in the 1974 <i>Buckley v. Valeo </i> decision,  this decision is an invitation to the Supreme Court to reconsider <i>Buckley</i>. Since both sides in the Vermont case have asked the Court to take the case, it is likely that it will come up in the next session.

Calabresi's concurrence has about as much legal relevance as this blog, since it is not even a concurrence in the decision itself but rather a concurrence in the decision by the circuit not to rehear the case en banc. (This decision has been long delayed; the law was passed in 1997, the three-judge panel first upheld it in 2002, then pulled the decision back, then reissued it.) But as an effort to introduce some fresh ideas that are relevant to both the legal and policy questions surrounding campaign finance, it is fascinating and important.

The judge's basic point is that the one justification that the Court in Buckley allowed -- corruption or the appearance of corruption -- is "impoverished," and that "efforts to tailor all campaign finance regulation to corruption...surely have constrained possibilities for creative proposals that may not fit comfortably into the proferred box."

(Under the "corruption" justification, limits on contributions are permitted, since large contributions might be corrupting, but limits on total spending by a campaign are not. And generally, limits on contributions to ballot initiatives are not permitted, since an initiative cannot be "corrupted" the way an individual entrusted with power can be.)

Other justifications for campaign regulation have been put forward before, such as the value of "political equality," or the concept that fundraising constitutes a "wealth primary,"
which might be invalidated on the same basis that the Court prohibited white primaries in the 1960s.

Calabresi has a very different way of talking about it, one that I like because it seems to recognize that money has a place in politics as a means of expression, as well as the problem that it can reinforce in the democratic sphere the inequalities of the economic sphere. The judge argues that the values to be protected in campaign finance are, first, the ability of people to express the intensity of their political views, using money, and second, the fact that "given the unequal distribution of wealth, money does not measure intensity of desire equally for rich and poor." Calabresi suggests that spending limits are one way to balance those interests, but not the only way.

Calabresi says that full public financing, as well as other ideas such as vouchers or anonymous contributions, might reduce corruption, "but they do so in a way that undercuts the ability of people, both poor and rich, to give financial expression to the relative intensity of their desires." He's right that full public financing, by his standard, it doesn't leave an opportunity for people to express the magnitude of their support using money, which is the whole point of it. That's also true of vouchers -- what Bruce Ackerman calls  "Patriot Dollars" -- such as giving everyone $25 to give to any candidate, because the voucher of someone who's all but indifferent and disengaged has the same value as the most intense partisan.
 
I'm not sure how spending limits do a much better job of balancing the two values, and the concurrence doesn't really claim that they do. Contribution limits alone, at a level such as the current federal level of $2,000, allows a lot of intensity, with some moderation of inequality; a lower limit would allow less intensity, and greater moderation of inequality.

But I think the kind of system that ideally meets Calabresi's suggestion would be a very generous matching system, such as New York City's 4:1 match on contributions of $250 or less. For an average person, a contribution of $250 represents a lot of intensity, and its intensity is greatly magnified by the match. The influence of bigger contributors is ameliorated by contribution limits and by a voluntary spending limit. (Since a $250 contribution is worth $1250 to a candidate, a $1,000 contribution doesn't carry that much greater weight.)  Smaller donors with intense feelings have a much stronger voice in such a system than in any other.

Democratic election lawyer Bob Bauer has some thoughtful objections to Calabresi's new standard here.  Bauer is right to note that the standard is very abstract. But so is "appearance of corruption," and at least this standard yields some middle ground, unlike a standard such as "political equality," which can really only be met by some unachievable ideal of removing money altogether from the process.

Sketchy as it is, I think this opens a fascinating way to think about money in politics that the Supreme Court might look at next year.

Posted by Mark Schmitt on May 19, 2005 | Permalink

TrackBack

TrackBack URL for this entry:
http://www.typepad.com/services/trackback/6a00d8341ce8a553ef00d8345948bf69e2

Listed below are links to weblogs that reference "Intensity of Political Desire":

» Mark Schmitt on the Calabresi Concurrence in the Vt. Campaign Finance Case from Election Law
See this interesting post.... [Read More]

Tracked on May 20, 2005 10:57:19 AM

» The Decembrist: "Intensity of Political Desire" from Almost perfection
Link: The Decembrist: Intensity of Political Desire. [Read More]

Tracked on Aug 19, 2005 2:54:53 PM

» The Decembrist: "Intensity of Political Desire" from Almost perfection
Link: The Decembrist: Intensity of Political Desire. Good thinking!! [Read More]

Tracked on Aug 19, 2005 3:28:03 PM

» The Decembrist from Good Samaritan #1
Link: The Decembrist. [Read More]

Tracked on Aug 20, 2005 4:49:24 PM

» The Decembrist: "Intensity of Political Desire" from My Weblog
Link: The Decembrist: Intensity of Political Desire. [Read More]

Tracked on Aug 21, 2005 6:34:21 AM

» Cell Phones from mobilebum.info
News and ... Sep News of Safety phones, new cell phone phones Cell time ... [Read More]

Tracked on Apr 8, 2006 7:53:51 PM

» Furniture search by phrase: Dressers from Searching the Catalog
Modern furniture design store : Contemporary lighting, cool accessories and ... with the exact phrase. with at least one of the words. without the words ... [Read More]

Tracked on Apr 12, 2006 9:28:41 PM

» Most popular words 2006: from Reader's Favorites at Scientific American
The articles includes Editor's Favorites, top e-mailed stories, and most popular articles. ... Babies Can Learn Words as Early as 10 Months ... [Read More]

Tracked on Apr 13, 2006 10:48:43 AM

» Drugs & Supplements from Drug Information and Supplement Information
Search: Enter a drug name ... LEGAL CONDITIONS AND TERMS OF USE APPLICABLE TO ALL USERS OF THIS SITE. ANY USE OF THIS SITE CONSTITUTES YOUR AGREEMENT TO ... [Read More]

Tracked on Apr 14, 2006 11:17:24 AM

» Free & Open Source Software Portal: Search from An Online Directory
Popular links · Discussion Forum. Directory Search. By Keyword. Advanced Search. Directory New Links. New links added this week. links in Portal... [Read More]

Tracked on Apr 27, 2006 6:09:09 PM

» 'The drug that could reverse heart disease' from in the arteries
can trigger coronary heart disease, reported seven newspapers (14 March 2006). The newspapers accurately reported [Read More]

Tracked on May 3, 2006 3:15:11 PM

» Eliot slips, skips one son's shiva for rebbe from Spitzer got his
candidate Eliot Spitzer got his signals mixed yesterday when he made a shiva call to only one of the feuding sons of late Satmar [Read More]

Tracked on May 6, 2006 9:24:14 AM

» Miami's James Posey Suspended from game without
Posey of the Miami Heat has been suspended one game without pay for knocking Chicago's Kirk [Read More]

Tracked on May 8, 2006 9:12:53 AM

» USA Search Engine Optimization from Advanced Search | US
Directory of USA (USA) search engine optimization (seo) and marketing professionals for web sites, internet development and viral marketing campaigns. [Read More]

Tracked on May 8, 2006 2:23:19 PM

» CIBER Reports Record Revenue for 2006 First Quarter from a CIBER record
Colorado April 25, 2006 Today CIBER, Inc. (NYSE: CBR) reported results for the first quarter of 2006. [Read More]

Tracked on May 16, 2006 10:08:10 PM

» Каталог Google - World > Russian from Каталог интернет-ресурсов
Справка по Каталог Искать в Блоги Поиск в Интернете ... Russian > Компьютеры > Интернет > В сети > Блоги, На главную страницу Каталога: [русский] [English] ... [Read More]

Tracked on May 20, 2006 1:50:01 PM

» Cambridge Dictionaries Online: ncaa athletic scholarships from online dictonary
Free online dictionary from Cambridge University Press [Read More]

Tracked on May 28, 2006 4:38:58 AM

» Hollywood Creative Directory from Directory Map
Contact information for the film, television and new media industries. [Read More]

Tracked on May 28, 2006 8:17:02 AM

» Scientists Trace HIV To Chimps from to a group of
back to wild chimpanzees in Cameroon, according to a group of researchers who believe it began [Read More]

Tracked on May 30, 2006 1:21:24 PM

» News Online from JapanHorse
Features weekly articles, archives to past issues, and timelines of scientific importance. [Read More]

Tracked on Jun 4, 2006 3:01:55 PM

» Excerpts from the President's Immigration Address from comprehensive
of the widespread problem of document fraud. Therefore, comprehensive immigration [Read More]

Tracked on Jun 5, 2006 1:34:38 PM

» Blue chips recover, Texas Instruments up late (Reuters) from and SP 500
rebounded in late trading on Thursday, pulling the Dow industrials and SP 500 indexes back into positive territory, [Read More]

Tracked on Jun 12, 2006 12:16:40 AM

» Goodall opposes AIDS monkey research from urging them to
center’s proposal to do AIDS-related research on sooty mangabey monkeys. [Read More]

Tracked on Jun 28, 2006 6:51:07 PM

» POLITICS: Idiots Love Al Bore’s Movie from took note of
as Bore confused his ice sheets when he said the effect of the Clean Air Act is noticeable in the Antarctic ice core; it is the Greenland [Read More]

Tracked on Jun 30, 2006 8:57:29 AM

» site map: diamond from myjewelrystore
Select your jewelry...14K White Gold .43ct Diamond & Sapphire Ring G-H SI3 [Read More]

Tracked on Jul 27, 2006 12:47:20 PM

» People Search in Internet 2006 from Plot Summary for Words
Words - Cast, Crew, Reviews, Plot Summary, Comments, Discussion, Taglines, Trailers, Posters, Photos, Showtimes, Link to Official Site, Fan Sites. [Read More]

Tracked on Aug 2, 2006 2:06:18 AM

» longines presence from People searching
Searchable keywords online... [Read More]

Tracked on Aug 2, 2006 2:10:57 AM

» burberry from Burberry Perfume
Buy Burberry perfumes and aftershaves from the best UK shops online. Click on one of the products listed below to compare prices to find the best price to ... [Read More]

Tracked on Aug 5, 2006 2:31:27 AM

» clinique from clinique: Read reviews and compare prices
Shop our selection of Clinique fragrances and cosmetics online. ... Search results for "clinique". Item 1 to 10 out of 580 Show all, sorted by Popularity ... [Read More]

Tracked on Aug 5, 2006 10:06:03 AM

» PACS passes halfway stage in London and South from Systems (PACS)
Picture Archiving and Communications Systems (PACS) in London and the South of England has passed the halfway stage. [Read More]

Tracked on Aug 9, 2006 6:36:03 AM

» Search Results Page - a from ondmd
Your search results page is packed with information. ... [Read More]

Tracked on Aug 10, 2006 8:04:42 PM

» Ru-Энциклопедия from Words 2005-2006
Most Popular Words from Internet... [Read More]

Tracked on Aug 15, 2006 10:04:31 AM

Comments

Fascinating! I think this intensity of feeling thing is enormously important. It's so essential to person-to-person relations that it's a wonder if we can ever govern ourselves without it. I love the idea of institutionalized congressional mechanism of intensity weighting and your point that we have one in the fillibuster. Also the 4:1 matching is beautiful, and something I'd never heard or thought of. This intensity business is a far too implicit factor regarding the right to demonstrate and protest. There is frivolousness and bad faith in protest just as in litigation, which makes one sympathetic to speech-limiting measures to keep the traffic moving and offices open...but then how many millions more people would be dead and/or oppressed were it not for Act Up? It's all about intensity.

Posted by: murky | May 21, 2005 8:43:22 PM