More on Campaign Finance and "Intensity of Desire"

Bob Bauer responded with predictably challenging insights to my post about Judge Guido Calabresi's concurrence in the Vermont spending limits case, and my argument that a generous matching system such as New York City's would meet Calabresi's call for a system that both recognizes the validity of expressing "intensity of political feeling" through money and tries to address the problem that inequalities of income make it impossible to differentiate between the mild feelings of a wealthy person and the very strong feelings of a person of moderate means.

Bauer's first point is that the NYC law -- which provides a 4:1 match on contributions of $250 or less -- doesn't so much enhance small donors, but small contributions. These may be wealthy people who happen to make relatively small contributions to candidates but make their big contributions elsewhere. For example, if a millionaire who gives $1,000 to candidate A who he strongly supports, and then a token $250 to another candidate as a mild favor to a business associate the system will make the two contributions almost equivalent in value, muting the intensity behind the larger one. That point is well taken. The only difference I have is that, by making the $250 contribution worth $1,250 to the campaign, or the $100 contribution worth $500, the law creates an incredible incentive for candidates to reach into communities in which they may have passionate supporters and ask them for small contributions. Without the incentive, candidates would be looking for votes in one community, and then trolling the law firm conference rooms for their dollars.

His second point is more of a red herring, I think. Bauer argues that the matching dollars are not a measure of the givers' intensity, but come from the state. He uses the example of an individual donor who is a libertarian and doesn't believe in state funding of campaigns. If the state matches his small contribution to a libertarian candidate, it is not reflecting or enhancing the intensity of his views, it is actually contradicting them.

That particular case is a good law-school paradox, but a special case. Since the system, like all public financing systems, must be voluntary, it is unlikely that a candidate who held such libertarian views would participate, and thus contributions to him would not be matched.

But let's go back and take this from first principles.

1. First, a complete laissez-faire campaign system, with no limits of any kind and no public financing, and no rules other than disclosure, would be undesirable. It would invite large-scale, Watergate-era corruption and also recreate in the political sphere the severe inequalities of the economic sphere. Candidates with access to financial resources would dominate the debate, others cannot even run.

2. Let's accept that limits are a poor way to solve these problems. They are only a negative; they do nothing to help a candidate without resources be heard. And they create all sorts of incentives to "evade" the limits: soft money, 527s, independent expenditures, and then on the regulatory side, an endlessly frustrating cycle of chasing after "loopholes" while trying not to block free expression, using awkward and "impoverished" legal standards such as corruption.

3. The solution is to bring in some public financing, mostly to boost the have-nots, but also to use as an incentive to induce candidates to accept spending and contribution limits. Let's assume for these purposes that we are dealing with what the ACLU calls "floors without ceilings," that is, pure public financing, without limits. Now the state has entered the picture.

4. Then the question becomes, how to distribute the state's financing. The alternatives are:

-- A voucher system, in which every voter is given some emblem of modest value -- say $25 -- to contribute to any campaign. This is Yale Law Professor Bruce Ackerman's "Patriot Dollar" proposal, and something much like it is in place in Minnesota and other states in the form of a full, refundable tax credit for contributions. In Minnesota, you can even get your money back immediately, without waiting for a tax refund. As Calabresi said, this might measure breadth of support, early in the process, but does nothing to measure intensity of support. I find the idea appealing, but I've always worried that a little-known candidate would have no opportunity to attract sufficient Patriot Dollars to become better known.

-- A "Clean Money" system, such as in Arizona or Maine. Here a large mass of very small contributions, of $5 or $10, triggers public funding in an amount adequate to run an entire campaign, based on past averages. Private contributions are intended mainly to demonstrate a broad base of serious support, in a way that collecting signatures, by itself, would not do. After those first small contributions, private funding is meant to be eliminated alogether, so inequalities of income are no factor, but neither is intensity of support. I favor this system but recognize that the absolute equality it imposes (if it works) on candidates is artificial, eliminates differences in both breadth and intensity of support, and creates anomalies.

-- A matching system such as New York's. (There are others, but none that I now of quite as generous.) Here again, the state is providing the boost. But it is providing it in a way that tracks both the breadth and intensity of a candidate's support, rewarding candidates with broad support in the form of small contributions, but also reflecting in some way the sacrifice that a $250 contribution represents from a person of ordinary means. I believe such a system achieves all the goals of the voucher system. In some ways it's preferable to a "Clean Money" system, but in other ways it is not, since it does not free candidates from fundraising entirely or eliminate the influence of great inequalities of wealth.

The state is not distributing the money according to its own preferences. In all these systems, it is distributing funds according to the preferences of voters, with three different schemes for doing that. If Bauer follows me to point 3 (that is, if he's not a pure libertarian, if he thinks that limit-based regulation is inadequate, and he thinks that some public funding is a useful antidote, then the question would be, wouldn't a system based on Judge Calabresi's principles be the preferable way to distribute that public boost?

My apologies to readers for a long post on a subject that, evidence shows, is of interest to almost no one.