The campaign contribution—put in its place by the Supreme Court, which re-named it "speech by proxy"—gets little respect in most campaign finance discussions.  It is attacked as "legalized bribery."  Or it is just this "proxy" form of communication, watered down speech and deserving of limited constitutional solicitude.  In recent case law, it has enjoyed brief moments in the jurisprudential sun.  One such moment came when Vermont actually lowered the limits so much that even Justice Breyer objected. And, on the other occasion, Congress raised the limits too high, for candidates facing millionaire opponents. The Court found that Congress was too generous, for the wrong reasons, and now the pauper and the millionaire operate under the same limits, taking some comfort in the fact that Congress has indexed them for inflation.  

     The State of Illinois has no contribution limit in place but is now considering them. Yesterday Michael Malbin of the Campaign Finance Institute defended limits and what he said was intriguing.  He opens with an attack on what he takes to be the "main argument against contribution limits":  that disclosure is enough and limits unnecessary. 

     In short, he argues that disclosure is a weak deterrent against questionable conduct involving contributions.  For disclosure to have the desired effects, various links in a "chain" have to be forged and to hold.  Voters have to learn and "process" the disclosed information; then they must draw meaningful differences between candidates on that basis; then they must further conclude that it is a voting issue, "important enough" to displace others; and after all that, there is the additional requirement that candidates believe that voters will really hold them accountable for the contributions they take.

     "If any one step in the sequence fails," Malbin writes, "so does the whole chain."  Failure is certain except in the most egregious cases.  And, for Malbin, contribution limits are not the weapon of choice in fighting egregious conduct.  He writes that "the more normal problem [with the influence of political money] is subtle and more pervasive," and it is a problem of ethics rather than the criminal laws.  Hence "it is important to have a middle step between disclosure-only and jail." 

     Malbin told the legislators that limits in the state will reduce the total amount that candidates can raise.  It will not, however, reduce the disproportionate influence of large donors and outside groups unless candidates and parties adjust to limits and to the resulting scarcity of funds by seeking out new sources of money.  The answer, Malbin argues, lies with small donors, brought in through the use of the Internet or tax incentives (e.g. credits).  He also suggests that with a public funding "match" for small donations, the State—any state—can have limits, well funded elections, and more small donor participation rising to a much higher proportion of total candidate fundraising.

     This is all well and clearly argued.  There is this to say (and doubtless, more) in response, about the difficulties of a case for limits that is based on the inadequacies of a "disclosure-only" scheme.

     First, it is true that voters may pay little attention to disclosure or will not, other than in the most egregious cases, distinguish between one candidate or another on this basis.  Candidates may well appreciate that voters are not motivated by this information most of the time.  The problem with this argument is that it can lead to two conclusions:  that contribution limits are needed, or that they are not, because voters don’t fundamentally care all that much about the sources of candidates' campaign funds.  The case for limits, if it rests on the Malbin "chain," rests on the belief that voters should care.

     Second, if they should care, we should be able to say why.  But Malbin argues that that the problem about which they should care is "subtle," and that the problem addressed by contribution limits is one of "ethics"—not illegal use of office but "misuse."  This is all well and good, but it is not a rousing defense of contribution limits to concede that voters don’t care but then, in showing why they should care, to pitch the argument to the "subtlety" of what they missed.  How much of a gap is there, between what is a subtle problem, and a problem so subtle that it is understandable that voters might not care about this, relatively speaking (taking into account other concerns they have).

And what if there is something in the imposition of limits that voters might not care for—a value or positive good, on the other side, that voters count against limits?  If their interest in limits is low, and the problem they are overlooking is "subtle," then for some voters, in some cases, they may have more of a complaint with a limit placed on contributions.  Maybe it is complaint with the government’s presumption or abuse of authority in imposing limits; or maybe when they decide to give, they discover that they would like to give as much as they want. 

     But of course, few Americans make contributions, and so most voters are not contributors.  Yet they still don’t care sufficiently to inform their voting decisions with disclosure information.  Knowing that others give and they do not—knowing that subtle hank-panky could be occurring between donors and officeholders—they still don’t, usually, care.  But if we accept that limits implicate constitutional values—and we know from decades of jurisprudence that they do—how strong a case for limits can be made out of an indifferent electorate and a subtle problem to which they remain, after all this time, insistently inattentive?

     This is not a case against limits.  There is a case to be made for them.  If, however, the case is built around a contrast with the disclosure-only alternative, it highlights the point—not helpful to reform arguments—that voters do not, in fact, worry too much in the run of the mill case where the candidate has gotten his or her money.

     If asked, voters might well support limits anyway because, quite simply, this seems fairer—fair in the sense that those with money should not have more of a chance to "participate," even in this way, than others not so well-off.  This is not so subtle, but it is quite basic and, for the mass of voters, more persuasive than the corruption-based argument now living out its remaining years in the domain of ethics. 

Bob Bauer