Campaign spending limits are back before the Supreme Court in Randall v. Sorrell. Supporters now make several arguments that the Court did not consider thirty years ago, when in Buckley v. Valeo it ruled such limits invalid under the Free Speech Clause of the First Amendment. It is difficult to see, however, how these new arguments will convince the Court to permit ceilings on the amount of funds a candidate may spend to run for office. Instead, it seems more likely that the Court would need to accept some version of the argument it rejected three decades ago - that spending limits are justifiable to promote equal opportunity to participate in electoral politics regardless of a citizen's amount of financial resources - if these limits are to have a realistic chance of surviving the Court's scrutiny. As there is little chance of that, the prospects for spending limits look very bleak.
The first new argument advanced by supporters of these limits is actually a variation on an old one. It's the anti-corruption argument; in other words, that spending limits are necessary to reduce the risk that candidates will be corrupted by campaign contributions, or at least that they will appear to be corrupted by these contributions. In Buckley , the Court rejected this argument on the ground that limits on the contributions themselves would suffice to protect against the risk of corruption or the appearance thereof. Now the claim is that thirty years of evidence have proved contribution limits to be insufficient in this respect.
One way that they been proved inadequate is by the development of a practice called "bundling" - it's where the leader of a special interest group bundles together a large volume of small-dollar contributions. The leader's ability to do so demonstrates political clout, and the leader is able to use this clout to exert influence over the candidate.
Even assuming that this influence from bundling is a form of corruption (which is questionable - would it be improper influence for the leader to show the candidate how many voters support that special interest?), it would not appear necessary to impose a spending cap in order to avoid this problem. Prohibiting the practice of bundling itself would be a less restrictive alternative.
b. Independent Interest Group Spending
Another reason for thinking that contribution limits are not enough to stem the appearance of corruption (or perhaps even its actuality) is that the electoral process is awash with special interest money. Even if it is not given directly to candidates, it is spent by the special interests themselves, in ways that make the public perceive the candidates beholden to these special interests. If special interests pay for their own separate campaign advertising favorable to a candidate, the public still thinks that the candidate owes the special interest a debt of gratitude - a debt that the special interest will collect when legislation it cares about comes before the since-elected candidate.
This point, however, proves too much. To reduce the appearance of corruption caused by this separate special interest spending, it would not be enough to impose ceilings on the amount of spending by the candidates themselves. Instead, it would be necessary to limit this separate spending. But the Supreme Court is not about to tolerate limits on the amount of money that policy-motivated groups of likeminded citizens are permitted to spend to promote candidates they perceive as sympathetic to their causes. To be sure, the Supreme Court may continue to permit a carefully circumscribed limit on campaign spending by corporations and unions (although even this is debatable for reasons described elsewhere). But as long as policy-oriented groups avoid corporate or union money, and instead raise their own funds solely from individual citizens, then there is no chance in the foreseeable future that the Supreme Court would accept a cap on campaign spending by these groups. But no cap of this kind defeats the possibility that limits confined to a candidate's own spending will avoid the perception (at least among some members of the public) that the candidate is beholden to these special interests.
2. Protecting a Candidate's Time
The second new argument made by supporters of spending limits is truly distinctive because it is not about corruption (or at least it is not supposed to be - see Point 3, below). Instead, it is premised on the observation that fundraising takes too much time. When incumbents run for reelection, the excessive time they devote to fundraising prevents them from undertaking the duties of their office. Spending caps would moot the need to raise large amounts of campaign money, thereby enabling officeholders to get back to work.
This argument, of course, works much better for limiting campaign spending by incumbents rather than challengers. While officeholders have an obligation to the public to do their job, challengers have no such duty (until they become elected). It is sometimes said that challengers are unable to prepare themselves adequately on the policy issues relevant to their campaigns because they spend too much time raising campaign money. Even if this were empirically true (which is doubtful - voters don't appear to be rejecting challengers on the ground that they seem relatively uninformed), it still does not seem that spending caps are the only available solution to this problem.
A more direct - and less restrictive - way to protect a candidate's time would be to limit the number of fundraising appearances or fundraising phone calls a candidate can make in any given campaign. Some candidates using the internet effectively (witness Howard Dean, and then John Kerry, in last year's presidential campaign) are able to raise large sums of money without spending any of their own time doing so. Since there is no point in preventing these candidates from spending internet-generated funds in order to protect their time, an across-the-board cap on their spending is an overly intrusive means of accomplishing this goal.
3. Access to the Candidate's Attention
Occasionally, the argument about protecting a candidate's time is made in different terms, one that harkens back to the anti-corruption rationale. In this version, the reason to protect a candidate's time is that the constant need for campaign cash pollutes the candidate's decisions concerning whom the candidate should meet with, and seek input from, during the course of the campaign. Even when the candidate is not directly asking for money, the candidate is deciding to spend his or her finite amount of time with the leaders of those interests groups who are most likely to generate financial support for the campaign.
a. The Legitimate Influence of an Interest Group's Leader
Insofar as this concern is about inappropriate influence over a candidate's thinking (rather than about the candidate's failure to spend enough time learning about the issues or attending to other substantive matters), it remains unclear whether it is improper for the leader of an interest group to have clout with a candidate simply because that leader is in a position to urge the group's members to support the candidate. Assuming contribution limits are in place, including anti-bundling measures to the extent necessary, it would seem that this leader's clout is an appropriate part of the political process. Even if the candidate were forbidden to discuss fundraising when meeting with this interest group leader, it is easy to imagine that the candidate would still want to do so. The candidate still hopes that this meeting will result in the group's support, including eventual votes from its members. In addition, if some of the group's members make unsolicited contributions to the campaign because their leader expresses enthusiasm for the candidate, then this financial windfall would be a happy byproduct of a meeting that has multiple purposes.
A candidate's desire for campaign contributions cannot be considered an intrinsic and surpassing evil, which must be removed from the electoral system at all costs. Even so, there would be a less restrictive way of curtailing a candidate's quest for contributions apart from imposing campaign spending caps. The law could instead impose an aggregate contribution limit rather than a spending cap.
b. Aggregate Contribution Limits versus Spending Limits
What's an aggregate contribution limit and how does it differ from a spending cap? An aggregate contribution limit sets a ceiling on the total amount of funds a candidate receives from contributions, regardless of how many different contributors there are and who they might be. (A separate kind of aggregate contribution limit applies to the total sum of contributions any single donor can make to multiple candidates.) A spending cap, by contrast, sets a ceiling on the amount of money a candidate can spend on the campaign. These two different approaches have the same practical effect if, but only if, the candidate spends none of his or her own money on the campaign. But when the candidate is prepared to spend a large amount of personal wealth in an effort to win the race, then the practical difference between aggregate contribution limits and spending limits is significant.
One might quickly object that a candidate with an immense personal fortunate has a great advantage in a race governed by aggregate contribution limits but no spending limits. True, but any objection to this fact must come from an interest other than the need to protect a candidate's time or prevent potential contributors from having inappropriate influence over the candidate. Candidates who finance their campaigns solely from their own pockets do not present a problem of either spending too much time fundraising or providing potential contributors too much access or influence.
Historically, the reason to object to self-funded candidates has been rooted in an equality-based argument: it is unfair for more affluent candidates to have an advantage over less affluent ones based on their differences in personal wealth. But before returning to this old argument, there is one more new one to consider.
4. The Deterrent Effect of Campaign War Chests
The additional argument is made that the threat of unlimited spending by well-funded candidates deters others from entering the race, thereby undermining the contest of ideas that a democratic election is supposed to be. From the perspective of this argument, it matters not whether a candidate's monetary stockpile is funded from contributions or the candidate's own pocket. If the stockpile is large enough, other potential candidates will quit before they ever begin.
The paucity of competitive races is surely a problem in a current political system. But gerrymandering more than excessive campaign cash seems to be the primary cause of uncompetitive elections. In statewide races (for Governor, or U.S. Senator, for example), where gerrymandering does not apply, both Republicans and Democrats are usually able to field competitive candidates - unless either an incumbent is especially popular or the state happens to be dominated culturally by one of the two national parties. In neither instance, however, does the existence of a campaign war chest prevent what would otherwise be a competitive race.
Moreover, if there were a deterrence problem, capping a candidate's spending would not provide a solution. The risk of deterrence comes as much from the potential separate spending of well-financed interest groups as it does from the potential spending of an opposing candidate. Especially after the Swift Boat attacks on John Kerry, no candidate is going to enter a race thinking that preparation requires only the ability to respond to the negative ads of an opposing candidate. The only way to reduce the risk of deterrence caused by special interest spending is to enable candidates to spend more, rather than less, in their own defense.
5. Equality (the Old Argument)
None of the new arguments advanced so far seems sufficient to justify the need for spending limits. Other forms of contribution limits - anti-bundling rules, limits on the number of fundraising events or phone calls, or even aggregate contribution limits - would work just as well to achieve these newly articulated goals. Moreover, capping a candidate's spending will do nothing to redress whatever ill effects occur as a result of independent spending by special interest groups.
No, the only argument that seems to justify the necessity for limiting a candidate's spending is the old equality-based argument that the Court famously rejected thirty years ago in Buckley . If the goal is to make sure that each candidate in a race has equal funds to spend, or at least to make sure that the candidate's access to funds is not affected by the candidate's personal wealth, then the only means available for achieving this goal is some form of spending limit. No form of contribution limit will suffice. But the Buckley Court unequivocally and emphatically declared this equality goal to be forbidden: "the First Amendment simply cannot tolerate [a] restriction upon the freedom of a candidate to speak without legislative limit on behalf of his own candidacy."
Much ink has been spilled over the last three decades in an effort to explain why this Buckley declaration is an incorrect interpretation of the Constitution. Most significant, of course, are the writings of Justice Breyer, who, both in his opinions and his extra-judicial texts, offers the idea that the Constitution permits Congress and the state legislatures "to democratize the influence that money can bring to bear upon the electoral process." But while Justice Breyer is likely to have the support of three colleagues (Stevens, Souter, and Ginsburg) in seeking to overturn Buckley in this respect, it is difficult to see where he can pick up an additional vote. There is no chance that he will secure the support of Justices Scalia, Kennedy, or Thomas - not because they would refuse to overrule Buckley out of respect for precedent, but because they reject the equality argument on the merits. They believe, like the Buckley Court before them, that political freedom means that candidates must have the right to use their own personal wealth to support their own campaigns, even if the consequence is an inequality in the electoral opportunities of potential candidates.
For the equality argument to prevail, Breyer needs an additional ally in one of the two new appointees to the Court, either Chief Justice Roberts or Justice Miers (assuming her nomination is successful). But that outcome seems improbable. The two new Justices might choose to adhere to Buckley simply on the ground that it settled an issue that remains just as debatable today as then. (If the rejection of the equality argument still has its defenders as well as detractors, then revisiting the precedent cannot quell the controversy, and the Court might as well adhere to its earlier decision.) Of course, if the new Justices take this deferential attitude to the precedent of Buckley , then the equality argument remains doomed.
Alternatively, if the new Justices are willing to reconsider the merits of equality argument, then is it more likely that they will accept the pro-equality views of Breyer and the other liberals on the Court or, instead, the anti-equality views of the three conservatives? One would have to guess the latter. The two appointees of President Bush, in their very first months on the job, are not likely to reject the interpretation of the First Amendment forcefully advanced by Justices Scalia, Kennedy, and Thomas - especially not when both liberals and conservatives on the Court pitch this First Amendment question as a matter of first principles.
In the last analysis, the equality argument has little chance of prevailing in the Court's current consideration of campaign spending limits. Understandably, then, advocates of spending limits have tried mightily to develop new arguments that do not depend on the old equality rationale. But these new arguments are flawed for the simply reason that spending limits are unnecessary to secure the objectives that underlie these new arguments; alternative forms of contribution limits would serve these purposes just as well. Consequently, it seems very doubtful that spending limits will fare any better before the Court now than they did thirty years ago.