Balkinization: Resistance to Campaign-Finance Laws: Liberty? Or Effects?

Resistance to Campaign-Finance Laws: Liberty? Or Effects?

Rick Pildes

The Volokh Conspiracy's Ilya Somin and I have been engaged in an illuminating exchange about campaign-finance regulation. Somin is generally opposed, on the ground that these kinds of laws, such as the McCain-Feingold Act, are too likely to be enacted for self-serving reasons, that is, to protect incumbents. I agree that this risk is real and that it's important for all to be aware of it -- including journalists, judges, and the rest of us -- but I would judge each individual law (or specific provision within a law) on its own terms. I would not dismiss campaign-finance regulation as generally and inherently incumbent protecting.

But I now want to shift grounds to a more fundamental issue. In recent years, I have noticed that those generally opposed to campaign-finance regulation have put much more weight on this argument about the effects of such laws. The argument that these laws are incumbent-protection devices has carried a much heavier share of the load in the resistance to these laws. Justice Scalia, for example, in his dissent in the McConnell case, in which the Supreme Court upheld the McCain-Feingold law, put most of his emphasis on precisely this argument. But I wonder how much these arguments about the effects of such laws are really makeweight arguments for those whose resistance is actually based on the view that these laws violate essential political liberties reflected in the First Amendment. I don't mean the arguments are not sincere; I mean that they are not the ultimate basis for opposition, though, to these laws.
There is an easy way to test this question: let us suppose it turns out that certain kinds of campaign-finance regulation -- perhaps contribution caps, perhaps spending limits -- do make it easier for challengers to compete effectively against incumbents. Would someone like Justice Scalia or Prof. Somin then support that regulation? I suspect not. And if not, that is because the resistance is not, ultimately, based on the effects of these laws, but on a certain view of free speech and liberty.

Of course, it could be the case that these laws both violate liberty and have the undesirable effect of entrenching incumbents. But once someone has a deeply held view about matters of fundamental value or principle (on either side of an issue like this) I suspect they are not likely to get that deeply involved in the actual empirical judgments about whether such laws do or do not entrench incumbents -- or they are likely to fit what they know of that evidence into their prior belief system. Thus, I suspect campaign finance is another area where, for many, debates over seeming empirical issues -- whether these laws entrench incumbents -- actually mask what are really debates over issues of principle instead.

Posted 12:11 PM by Rick Pildes [link]

Comments:

Can't argue with you here. That said, does it matter what a Scalia or Somin's real reasons for being opposed to campaign finance laws are? If you accept incumbency entrentchment as a valid argument against campaign-fiance regulation, I can't see why it matters that it isn't Scalia's real concern.

# posted by

Asher : 6:03 PM

The Secret Ambition of Libertarianism? As Dan Kahan has noted, these utilitarian debates often allow us to avoid discussing more fundamental disagreements over values. But it seems to me that libertarianism in particular is vulnerable to this critique, and in an asymmetrical way that your post ("on either side of an issue") kind of elides.

I think the opposite of your hypothetical would be especially telling: if, by contrast, it were shown that campaign finance regulation did have an incumbent-protecting effect, would most CFR advocates, at least in principle, change their minds about it? I think they would (provided that they were, indeed, convinced).

Thus, it's not quite like Kahan's examples, where the utilitarian rationale really is irrelevant (e.g., where liberals would oppose the death penalty even if it had a deterrent effect, and conservatives would support it even if it were no more of a deterrent than life in prison). The effects of CFR are critical to its advocates, even if they are irrelevant to its libertarian critics. For the liberal, the regulation is a means to an end; for the libertarian, the absence of regulation is an end in itself.

# posted by

Andrew : 1:11 AM

Andrew, thanks for your quite interesting comment. I hadn't given any thought to whether there is symmetry or not between proponents and opponents on the specific issue of campaign-finance laws and the role of empirical facts. I had meant the observation to be a more general one; how this aspect of debate plays out might well vary from issue to issue. However, with respect to campaign-finance laws in particular, it is noteworthy that the editorials in the NY Times and Washington Post on the recent "millionaire's amendment" case did not engage at all with the serious issue of whether this provision was, in fact, an incumbent-entrenchment device. Perhaps that is because the debate within the Court did not focus as much on that issue as it might have, which in turn might be due to the briefs not focusing as much as they ought to have on the question.

Tray, the issue I'm trying to highlight is what is a valid argument against such laws. I've suggested (1) that incumbent entrenchment is a valid concern regarding specific laws; (2) that some argue that this concern indicts virtually all such laws; (3) that I believe the second argument sweeps too broadly and generalizes too much from the first; (4) that many proponents of the second argument are actually more concerned about liberty than the effects of these laws, which is why those proponents see all such laws as having pernicious effects; and hence (5) that it is important not to be misled into believing that these pernicious effects necessarily or virtually always occur, without looking into the actual evidence regarding specific laws, even when arguments like (2) are made by prominent figures who are drawn to such arguments without actually studying the empirical facts.

# posted by

Rick Pildes : 10:07 AM

"It is important not to be misled into believing that these pernicious effects necessarily or virtually always occur, without looking into the actual evidence regarding specific laws."

Of course - just as it's important to not be misled into believing that they don't occur, even though authorities on the other side of the debate say they won't. A problem in so many legal academic debates is that arguments over seemingly empirical issues are divided along suspiciously ideological grounds. For instance, take a debate you've participated in- whether minority-majority districts bleach all the other districts and lead to Republicans winning more seats, thereby defeating the real desires of black or Hispanic voters. By and large, I notice that the really strong supporters of a robust Voting Rights Act (like Pam Karlan) say no, it's all a myth, whereas people like yourself, or Justice O'Connor, for that matter, who were always a little queasy about aggressive minority-majority districting in the first place come forward with reams of data that purportedly show that minority-majority districting may actually reduce minorities' substantive representation. And I, as a student of these issues, am left a little dubious about the objectivity of some of this ostensibly empirical work, since each scholar's conclusion seems to correlate so closely to his or her disposition towards the VRA. The Second Amendment debates are even more of a mess in this regard. I guess it's a complaint I have with legal scholarship in general, and perhaps an argument for farming out the debates over some of these issues to political science departments.

# posted by

Asher : 12:54 AM

Tray, I'm glad to see you know the literature so well on that issue. For what it's worth, my own views on that issue have changed over time in response to my assessment of the actual effects of districting. In the 1990s, the first decade of safe districting, I published an article that examined the empirical literature at the time and endorsed the necessity and benefits of safe districting. ("The Politics of Race," in the Harvard Law Review). Only after more years passed, with more experience of this districting and more empirical studies that emerged -- and most importantly, only after real two-party competition emerged in the South, where most of these districts are drawn -- did I begin to come to the view, based on what I learned from much work by political scientists, that there was a serious tradeoff issue involved. Second, to the extent there are disagreements, they are not necessarily over whether there is such a tradeoff; the disagreements are often what to do about that tradeoff, which does involve a more normative question. For example, I have heard representatives of civil-rights organizations say it's not our role to take sides in partisan issues, so the tradeoff issue just isn't relevant; even if it's true that safe districting might make some other districts more conservative, the VRA should only be concerned with ensuring full participation by minority communities -- meaning, in this context, creation of safe districts when voting is polarized. Finally, even when there is agreement that there is a tradeoff, there can still be, and often are, disagreements about exactly what the magnitude of that tradeoff is.

# posted by

Rick Pildes : 10:07 AM

I'm happy to say that I never questioned your intellectual honesty on this issue; my doubts mostly lie with those who downplay the tradeoffs. Of course, it's possible to produce a completely tradeoff-free map, but you might have to pull a Shavian (Shawian?) gerrymander to do it. Then again, if Shaw's a dead letter post-Cromartie, as some think it is, maybe that's not a problem. As long as you're here reading comments, I have a question about a problem I have with Gingles. We talk about creating safe districts in places where voting is polarized and the minority vote is cohesive. What bothers me is the unspoken assumption that, if you have a cohesive minority vote in minority/white elections, that minority vote will continue to be cohesive once it becomes the majority in its own district, and that therefore that district will be safe for whomever the minority's candidate of choice is. In real life, that doesn't necessarily happen, of course, because once the minority becomes the majority, it loses the impetus to cohere in support for one minority candidate, and so you get competitive minority vs. minority primaries. And in those primaries, the minority's preferred candidate doesn't always win because the white vote can play a decisive role as long as minority voters don't vote as a bloc. Of course, a minority candidate always wins because in minority/white elections the minority will vote as a bloc, but minority candidates of choice don't always win. You saw this in Cynthia McKinney's loss to Denise Majette, where McKinney was clearly blacks' preferred candidate but lost because whites voted en masse for Majette, and again in her loss to Hank Johnson, and in a couple other contests that don't come to mind. So when we talk about safe minority seats, are we really talking about safe minority candidate of choice seats, or just safe minority seats? And if the latter, isn't that a big problem? Because all you're really getting in places like the 4th District in Georgia is purely token descriptive representation. Maybe the 65% rule isn't as outmoded as everyone thinks.

# posted by

Asher : 3:39 PM