Lowenstein, Daniel H.

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University of North Carolina School of Law

NORTH CAROLINA LAW REVIEWVolume 79 | Number 5 Article 166-1-2001Campaign Finance, Race, and EqualityDaniel H. LowensteinFollow this and additional works at: http://scholarship.law.unc.edu/nclrPart of the Law CommonsThis Article is brought to you for free and open access by Carolina Law Scholarship Repository. It has been accepted for inclusion in North CarolinaLaw Review by an authorized administrator of Carolina Law Scholarship Repository. For more information, please contact law_repository@unc.edu.Recommended CitationDaniel H. Lowenstein, Campaign Finance, Race, and Equality, 79 N.C. L. Rev. 1535 (2001).Available at: http://scholarship.law.unc.edu/nclr/vol79/iss5/16CAMPAIGN FINANCE, RACE, AND EQUALITYDANIEL H. LOWENSTEIN*Lowenstein agrees with Terry Smith that egalitarian campaignfinance reformers may have given inadequate attention to theimplications of their proposals for racial groups. However, hesuggests that this inattention is symptomatic of a more generaltendency to avoid the complexities of equality as a goal forcampaign finance. Lowenstein expresses tentative skepticism ofwhether equality can withstand theoretical and empirical scrutinyas a rationale for campaign finance reform. He proposes insteadgoals such as avoiding conflict of interest, enhancing electoralcompetition, and reducing the resources devoted to fundraising.He suggests that a good rule of thumb for pursuing each of thesegoals is that reforms should make it easier, not harder, forpoliticians to get money.Legal scholars writing on campaign finance in recent years havetended to divide into two camps. One group, including writers suchas Lillian BeVier,' Joel Gora,2 Bradley Smith,3 and KathleenSullivan,4 has been hostile to regulation, primarily on libertariangrounds. These scholars make policy arguments against most formsof regulation-disclosure usually being the prominent exception-and they make constitutional arguments that the regime initiated byBuckley v. Valeo5 is too permissive of regulation.The other, more numerous group of scholars, favors enhancedregulation. Overwhelmingly, these writers support regulation inorder to promote the goal of equality. At the extreme, they argue* Professor of Law, University of California, Los Angeles.1. See Lillian R. BeVier, Campaign Finance Reform: Specious Arguments,Intractable Dilemmas, 94 COLUM. L. REV. 1258 (1994); Lillian R. BeVier, Money andPolitics: A Perspective on the First Amendment and Campaign Finance Reform, 73 CAL. L.REV. 1045 (1985).2. See Joel M. Gora, Campaign Finance Reform: Still Searching Today for a BetterWay, 6 J.L. & POL'Y 137 (1997).3. See BRADLEY A. SMITH, UNFREE SPEECH: THE FOLLY OF CAMPAIGN FINANCEREFORM (2001).4. See Kathleen M. Sullivan, Against Campaign Finance Reform, 1998 UTAH L. REV.311; Kathleen M. Sullivan, Political Money and Freedom of Speech, 30 U.C. DAVIS L.REV. 663 (1997).5. 424 U.S. 1 (1976).NORTH CAROLINA LAW REVIEWthat the present campaign finance system, inadequately regulated intheir opinion, violates the Equal Protection Clause.6 Few people willhold their breath until the Supreme Court accepts that position, butreformers argue, somewhat more plausibly, that contrary to Buckley,promoting equality should be recognized as a compelling stateinterest justifying regulation of campaign activity. And they urgeCongress, state legislatures, and state voters to adopt reforms thatthey believe will promote equality. The many scholars in this campinclude Edward Foley and Richard Hasen.7Terry Smith generally identifies himself with the latter group ofscholars,8 but he offers what appears to be intended as a friendlyamendment to their position. The goal of equality, he argues, cannotbe considered realistically in this country without seriousconsideration of race. Such serious consideration, he claims, has beenlacking in writings of the egalitarian campaign finance reformers. Onthis, his most central point, I believe Professor Smith is correct. Buthe could strengthen his argument if he would clarify how he believesrace and the campaign finance debate bear on each other. His Articleseems to go back and forth between at least two quite distinctdomains.One is the domain of constitutional doctrine. Smith's main pointis that Shaw v. Reno9 and its progeny are in tension, if notinconsistent, with the recognition of speech and associational rights ofcampaign donors and spenders in Buckley.1° I believe his attempt toenlist the First Amendment against Shaw is a stretch, though I agreewith him that inhibiting the ability of minorities to participate inredistricting negotiations is one of the most outrageous aspects of theracial gerrymandering decisions." But I fail to see Smith's purpose6. See Jamin Raskin & John Bonifaz, The Constitutional Imperative and PracticalSuperiority of Democratically Financed Elections, 94 COLUM. L. REV. 1160, 1160 (1994).7. See, e.g., Edward B. Foley, Equal-Dollars-Per-Voter: A Constitutional Principle ofCampaign Finance, 94 COLUM. L. REV. 1204 (1994); Richard L. Hasen, Campaign FinanceLaws and the Rupert Murdoch Problem, 77 Tx. L. REv. 1627 (1999); Richard L. Hasen,Clipping Coupons for Democracy: An Egalitarian/Public Choice Defense of CampaignFinance Vouchers, 84 CAL. L. REV. 3 (1996).8. Terry Smith, Race and Money in Politics, 79 N.C. L. REV. 1469, 1520 (2001).9. 509 U.S. 630 (1993).10. Smith, supra note 8, at 1519-20.11. I made a similar argument in Daniel Hays Lowenstein, You Don't Have to BeLiberal to Hate the Racial Gerrymandering Cases, 50 STAN. L. REV. 779, 825 (1998)(stating that the "freedom to compete and negotiate will be especially hampered [by theracial gerrymandering cases] in parts of the state where blacks and Hispanics reside."); seealso id. at 828-30 (showing that the racial gerrymandering doctrine forces minoritypolitical groups to adopt legal grievance tactics to promote their redistricting goals,because they are hamstrung in their use of ordinary political negotiating tactics).1536 [Vol. 79CAMPAIGN FINANCE AND RACEhere. Is he trying to persuade the egalitarian reformers that theyought to join him in opposing Shaw? Why bother, since most, if notall of them, undoubtedly oppose Shaw already? More likely, he ismaking an argument against Buckley, which he says he would like tosee overruled.12 But whether he is making an argument against Shawor against Buckley, surely there are more compelling andstraightforward reasons to oppose both decisions than their possibleinconsistency with each other.The second domain that Smith sometimes refers to is the effectof the campaign finance system on minority politicians. He assertsthat minorities cannot raise money as effectively as whites. 3 Livingas I do in California, where Willie Brown, an African American, mayhave been more successful at fund-raising than any other politician inthe state's history, I am skeptical.14 Smith cites figures showing thatminority legislative candidates raise and spend less, on average, thanwhite candidates.' But such figures do not demonstrate, as Smithapparently believes, that minority candidates are relativelydisadvantaged. For one thing, he does not break the figures downbetween minority candidates running against other minorities andthose running against whites. 6 Two black candidates opposing each12. Smith, supra note 8, at 1520. Of course, what he means is that he would like thatportion of Buckley declaring campaign expenditure limits unconstitutional to beoverruled.13. Smith, supra note 8, at 1520.14. See generally JAMES RICHARDSON, WILLIE BROWN: A BIOGRAPHY 315-33(1996).15. Smith, supra note 8, at 1473-74.16. Smith refers to the Senate contest in which Jesse Helms outspent Harvey Gantt,but that may reflect less an inability on Gantt's part to raise money and more SenatorHelms' well known fundraising prowess. The only African-American senator in a positionto run for reelection in recent years was Carol Moseley-Braun, who was defeated by PeterFitzgerald in Illinois in 1998. Fitzgerald received more than twice as much as Moseley-Braun, $15.0 million to $7.2 million. However, Fitzgerald was a self-funded candidate whoput $11.7 million into his own campaign. See Federal Activity of 1997-98 SenateCampaigns (1998), http:llwww.fec.gov/1996/states/ilsen6.htm (last visited Aug. 17, 2001)(on file with the North Carolina Law Review). Thus, in actual fund-raising, Moseley-Braun's $7.2 million compared favorably to Fitzgerald's $3.3 million. On the other hand,Fitzgerald might have worked harder to raise money had he not been able to fund his owncampaign. A better comparison is between Moseley-Braun and the Democraticincumbent who ran in the 1996 Senate election, Richard Durbin. Durbin raised $4.8million in 1996. See Federal Activity of 1995-96 Senate Campaigns (1996),http://www.fee.gov/1996/states/il_O2.htm (last visited Aug. 17, 2001) (on file with the NorthCarolina Law Review). Thus, the Illinois experience does not support Smith's hypothesis.Nor should that be a surprise. The parties and interest groups that fund hotly contestedelections have a large stake in partisan control of the two houses of Congress, and are notlikely to base their campaign finance activities on personal predilections.2001] 1537NORTH CAROLINA LAW REVIEWother in one district would not be disadvantaged because two whitecandidates in a neighboring district spent twice as much.To be sure, residents of a district are a major source ofcontributions to legislative candidates and, as Smith argues, they willbe a less lucrative source in the low-income areas typicallyrepresented by minority legislators. It does not follow, however, thatlegislators from these districts are disadvantaged. To the contrary,the minority incumbents benefit. The more difficult it is to raisemoney, the less likely the incumbent legislator will face a well-financed challenger. When they do not face well-financedchallengers, incumbents are extremely difficult to defeat.17 Not onlyminority incumbent legislators benefit from the decreased likelihoodof strong electoral challenges. Their minority constituents are alsolikely to benefit, because seniority has at least some importance inmost legislatures.Now I would like to return to Professor Smith's general point,that the egalitarian reformers have failed to consider race in theirconceptions of the equality that campaign finance reform is supposedto support. In my opinion, the problem that Smith identifies is a partof a larger problem, namely the failure of the egalitarian reformers togive any serious attention to what kind of equality they expectcampaign finance regulation to accomplish and how they expectregulation to accomplish equality of any sort. They speakindifferently of equalizing the voice of every voter, of equalizing theopportunities of all candidates, of equalizing "political power" ingeneral, and of remedying deficiencies in our society's distribution ofresources caused by present campaign finance systems, as if all thesewere the same.Manifestly, the subject I have just opened is much too large foradequate discussion here. I shall simply state, in a conclusory way,that I believe the only one of these goals that could have much chanceof standing up as a social desideratum to serious analytical scrutiny isthe last, namely the goal of general distributional fairness. Pursuit ofthis goal by means of campaign finance regulation is almost certainlydoomed to failure on empirical grounds. There is no reason tosuppose that the general distributional effects of any imaginable formof campaign finance reform would be more than slight. Whatevereffects did occur would be the indirect result of interaction with17. See, e.g., Gary C. Jacobson, The Effects of Campaign Spending in House Elections:New Evidence for Old Arguments, 34 AM. J. OF POL. Sci. 334 (1990).[Vol. 791538CAMPAIGN FINANCE AND RACEinnumerable other factors and therefore would be entirelyunpredictable.For these reasons, I have increasingly come to the view thatcertain forms of campaign finance regulation are desirable, but forreasons other than the promotion of equality. This is a rather solitaryposition within legal academe, but it has consistently been theposition of a majority of the Supreme Court and, I believe, it is heldby many among those in the general public who think aboutcampaign finance issues. 18Among the goals of campaign finance reform, I would includereduction of undue influence or, as I prefer to call it, conflict ofinterest; promotion of somewhat more electoral competition than wehave typically experienced in certain legislative races in recentdecades; and reduction of the time and energy politicians presentlymust devote to fund-raising. Although working out the details is amost difficult chore, there is one basic approach best calculated topromote each of these goals: reduce the pressure by making it easier,not harder, for politicians to get campaign money. The reasons aresimple. First, the harder it is to raise money, the more likely it is thatrecipients will be influenced by the contributions they receive.Second, the greatest barrier to more competitive legislative electionsis not the large amounts incumbents can spend but the inability ofmany challengers to raise adequate amounts. Third, the easier it is toget money, the less time and energy politicians will need to devote togetting it.Here is a simple idea: Quintuple the amount provided topresidential candidates and quintuple all the limits contained in theFederal Election Campaign Act. This quintupling plan is by nomeans a perfect solution, but I believe that if it were put into forcetoday, it would quickly mitigate many of today's most salient sourcesof discontent in campaign finance. For example, evasive devices such18. The Supreme Court has upheld campaign restrictions only when it believed therestrictions served anti-corruption purposes. See, e.g., Fed. Election Comm'n v. Nat'lConservative Political Action Comm., 470 U.S. 480 (1985). Corruption has been a majortheme in the public debate over campaign finance reform. Other than myself, few if anylegal academics have seriously defended reforms on anti-corruption grounds. CompareBruce E. Cain, Moralism and Realism in Campaign Finance Reform, 1995 CHI. LEGAL F.111, and David A. Strauss, What Is the Goal of Campaign Finance Reform? 1995 CHI.LEGAL F. 141 (both arguing that campaign finance reform is unjustifiable on anti-corruption grounds but defensible, in theory at least, on egalitarian or equity grounds),with Daniel Hays Lowenstein, Campaign Contributions and Corruption: Comments onStrauss and Cain, 1995 CHI. LEGAL F. 163 (defending the anti-corruption rationale).Bruce Cain will be justifiably annoyed at being referred to as a legal academic, but that'swhat he gets for publishing in legal journals.2001] 1539NORTH CAROLINA LAW REVIEWas sham issue advocacy funded by soft money or independentspending would become less necessary if the public funding ofpresidential campaigns were restored to a level adequate to fund acampaign, and if higher contribution limits made it more feasible forcongressional candidates to fund their campaigns.Professor Smith's central insight is as applicable to these ideas asto egalitarian-based reforms. These reforms also should be vetted forany particular effects on different groups, including racial and ethnicgroups. On first blush, the goals I have mentioned appear to be goodgovernment goals in which all citizens have an interest, whatever theirrace or ethnicity. But perhaps Professor Smith will some day find thetime to point his antennae in their direction.In the meantime, I do not expect the egalitarian reformers togive up their ground. If Professor Smith's Article prompts them notonly to press the particular inquiry he proposes but to engage in amore comprehensive investigation into their egalitarian premises, hewill have performed a most valuable service.[Vol. 791540

Campaign Finance, Race, and Equality

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