Of the several constitutional amendments favored by Justice Stevens, the one dealing with campaign finance reform strikes Cass Sunstein as “the strongest.” Cass Sunstein, The Refounding Father, N.Y. Review of Books Vol. LXI, No. 10 (June 5, 2014) at 10.  He argues that without controls on political spending, income inequality will beget political inequality.  Especially because we are prepared to accept vast inequality in the economic sphere, we cannot tolerate it in our politics. To the extent that we might worry about incumbent entrenchment if politicians are empowered to set the rules of the game, we should take comfort that the workings of the political process—“democratic debate”—will supply the necessary safeguards.

Sunstein’s article appears around the same time that Seth Masket reports on evidence at odds with the belief that wealthy spenders reliably buy political outcomes.  This is the latest social science tending to show that the linkage of wealth to political influence is a complicated question that does not find its answer in routine reform argument.

Professor Peter Schuck has also recently dissected the popular over-simplifications in his book Why Government Fails So Often (2014).  He does not deny that superior resources can contribute to successful intervention in the policymaking process.  Some of the time, no doubt, it does.  But sometimes it does not, and it is not correct to say, as some all too readily do, that to understand how government works, one has only to “follow the money.” As Schuck writes, “even well-heeled, well-connected, well-represented business interests often fail to get their way.” Money matters, but so does:

Better organizational skills, name recognition or dynastic ties, a larger and strategically distributed voter base, superior contacts in Washington, more charismatic leaders and telegenic messages, broader and more supported media coverage, stronger legal claims, the inertial advantages of a policy status quo, better arguments on the policy merits, and the most potent electoral asset of all—incumbency

And these “advantages are more important than ever, given the dramatically lower costs of mobilizing today through e-mail and social media.”  Id. at 108. Schuck argues for an appreciation of complexity, which means an understanding that “the political power of the market actors lies less in their campaign contributions than in the real economic and political interests that elected politicians think these interests represent to their communities.”  Id. at 219.

We can look closely at particular issues lobbied aggressively by well-financed interests and find support for Shuck’s view.  One of the very finest of the studies of any one such issue is Death by a Thousand Cuts (2005), Michael Graetz and Ian Ayres’ imaginatively researched and carefully reasoned study of the successful campaign to cut the estate tax.  They show the various factors, not least of which are powerful communications strategies, that account for a winning lobbying program.  Of campaign finance, they write that it barely registers an explanatory factor, if at all: “the flow of cash did not affect the legislative result in the way that people who fret over money’s role in politics usually complained of. Campaign contributions, soft money, spending limits for political candidates, and the like … mattered relatively little in the estate tax fight.” Id at 240.

To pay attention to the evidence—to admit, as Schuck writes, that the “political process is so complex and opaque” that it is “usually impossible” to understand clearly why it produces particular outcomes—does not compel the rejection of any and all campaign finance controls.  Schuck at 109.  Some regulation may well be desirable in limiting brazen uses of money to buy political favor, and to satisfy the public’s expectation that the rankest form of bargaining of the quid pro quo variety is impermissible.

But it is also unfair to the public to over-argue the benefits of comprehensive, aggressive and—many will complain—stifling limits on political spending.  Restrictions on this scale cannot achieve the goal of blunting the influence of campaign money in moving legislative and regulatory policy, and they can’t do so because that influence is regularly overstated and a solution devised for an incorrectly stated  problem must inevitably result in disappointment.

Consider the claims of the sponsors of the American Anti-Corruption Act:


They  promise that their reform will bring “the people back in.” Award points here for passion, but not for truth-in-advertising.

The stakes rise still higher when the issue under discussion is amendment of the Constitution rather than in a change in statute. The case for a constitutional change must rest on the claim that the problem an amendment would address is so fundamental that, in the words of James Madison, it qualifies as one of the “great and extraordinary occasions” for revising the founding document.

The challenge for Cass Sunstein and others is to explain how this case can be put forward with evidence that matches up to the theory. The debate on his side, and overall, would be better if the arguments were more tightly organized around what we know, and don’t, about the role of money in the political process, and if, in arguing for an amendment the Constitution that frees the hands of politicians in writing campaign finance laws, proponents accurately, carefully and realistically tote up for “the people” both the benefits and the costs.

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