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"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


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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