an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
I've always been perplexed by the zeal of proponents of campaign finance reform. Decades of legislation in this area did almost nothing to improve the political process, even before Citizens United came along. Perhaps this is because the means used to regulate money were incorrect (i.e., we should have had public financing for campaigns, or we should be following the "secret ballot" model for donations advanced by Bruce Ackerman and Ian Ayres), but that reminds me of Ronald Reagan's line that "[t]he more the plans fail the more the planners plan."
I'm just as unimpressed by the libertarian argument that if only government were smaller elections would be cleaner because fewer groups could get something in exchange for their donations (e.g., an earmark or a tax break). Good luck with that. Maybe the Tea Party will succeed in rolling back the federal establishment, but I'm not holding my breath.
This leads me to wonder if part of the problem is that our legislatures are simply too small, at least in the large states and in the House of Representatives. (The Senate's size is, of course, fixed in the absence of a constitutional amendment.) The House is about as big now as it was in 1920. You can tell a similar story about state legislatures. This means that each representative has a lot more constituents now than was the case decades ago. It also means that the cost of campaigning in each district keeps going up.
Suppose you doubled the size of the House of Representatives, which only requires a statute. This would accomplish the goals of both campaign finance reformers and libertarians. First, the cost of each campaign would go down because House districts would be smaller. Second, special interest groups would find it much more expensive to wield clout within a legislature. They would have to donate twice as much, in effect, even though the demand for money from candidates would be lower. Third, the influence of any single member would be reduced in a larger legislature, due to the higher transaction costs for public action, and would thus make it harder for a member to make a credible promise of a benefit to a donor.
This idea was originally suggested by Larry Sabato in his book A More Perfect Constitution. I think it deserves more study, especially as there must be a rich history on legislative expansion in the states and in Congress. Granted, this doesn't do anything for presidential, gubernatorial, or Senate elections, but something beats nothing.