By RYAN PEVNICK
Review of Plutocrats United, by Richard Hasen
New Haven: Yale University Press, 2016
The appearance of Richard Hasen’s Plutocrats United coincides with a presidential election in which issues of campaign finance are often on center stage. Bernie Sanders has mounted a surprisingly strong challenge to Hillary Clinton and the Democratic Party establishment largely by decrying the growing political influence of the extremely wealthy, as well as Clinton’s alleged dependence on the financial industry.
Perhaps somewhat more surprisingly, a number of candidates on the other side of the aisle have also raised concerns about the post-Citizens United landscape. For instance, Jeb Bush and Ted Cruz both criticized the system on the grounds that it makes it difficult for candidates to control their campaigns (since candidates are constrained by substantial contribution limits and prohibited from coordinating with the Super PACs working on their behalf). Meanwhile, Donald Trump’s surprising popularity stems, in part, from his lack of reliance on large donors.
Despite widespread discontent with the existing campaign finance regime, there is substantial disagreement about exactly what the problem is and what ought to be done about it. Probably the most common complaint, in both legal and public debate, is that the existing system breeds corruption. On this account, candidates and officials are dependent on those big donors who fund their campaigns and this distorts the work they do in office, from the issues they are willing to address to the positions they endorse. Both Sanders and Trump have capitalized on this line of criticism.
One important reason for the prominence of arguments about corruption in debate about campaign finance is that the Supreme Court insists that the prevention of corruption provides the only compelling reason to impose restrictions on election-related speech.
This is the landscape that Hasen confronts in Plutocrats United. He argues that debate about campaign finance reform
[h]as been hampered by the Supreme Court’s insistence that any justifications for limits be phrased in anticorruption terms, and the willingness of activists and scholars to go along with this unhelpful framing. This book proposes that we think of campaign finance limits differently, as a means of promoting and preserving political equality. (9)
Thus, the book’s central claim is that:
Under certain circumstances, campaign limits to promote political equality are constitutional. Promoting political equality is a compelling interest that can justify measures that do not squelch too much political speech or inhibit political competition. (9)
Hasen thereby joins a long line of reform advocates who have stressed the importance of egalitarian considerations (including Ronald Dworkin, Bruce Ackerman, Joshua Cohen, and others).
This attempt to move discussion of campaign finance reform beyond a semantic debate about the meaning of corruption is a welcome corrective. Consider, for instance, the Koch brothers’ headline-grabbing announcement that their political network plans to spend nearly one billion dollars on the 2016 election. It is true that one might worry that such spending will lead candidates to recognize that they are dependent for their success on the support of the Koch’s network of donors and alter their positions to cultivate that support. In this sense, the spending invites a certain kind of corruption.
But perhaps a more obvious concern about the kind of spending that the Koch brothers and other extremely wealthy citizens are engaged in is that it allows them to gain a level of influence that far outruns that of ordinary citizens. Without denying that the existing system is corrupt, Hasen’s goal is to argue that the more fundamental problem is that it is deeply at odds with political equality. Bringing this issue to the forefront in a readable and engaging text is the important contribution of Plutocrats United.
There are many interesting discussions in the book that should challenge readers to rethink standard liberal and conservative positions on campaign finance reform. For instance, Hasen effectively demonstrates that the argument for protecting corporate speech is not consistent with the position that conservatives ordinarily take on questions related to foreign contributions. If, as Justice Kennedy argues in Citizens United, corporate speech must be protected because it is critical that citizens have “the right and privilege to determine” for themselves “what speech and speakers are worthy of consideration,” then why should they not also be free to consider arguments put forward by foreigners?
Similarly, the book includes an interesting treatment of the difficulties that progressive reformers face in figuring out how to balance a commitment to political equality with protections of the press that confer significant political power on the owners of media outlets. Thus, few readers will put down the book without being challenged to rethink important aspects of their positions. However, I want to set these important issues aside in order to focus on Hasen’s equality-based justification for reform, since it lies at the heart of the book’s argument and raises fundamental issues for the reform movement.
Obviously, equality (like corruption) is a complicated concept that can be understood in many different ways. Hasen argues that the public has a compelling interest in “equality of inputs.” He explains that this ideal requires a “system in which each voter has roughly equal political power in the electoral or policymaking process” (73). This is clearly one way to ground an objection to the enormous levels of independent spending bankrolled by wealthy citizens. Indeed, at first glance, the idea of input equality has a certain intuitive attractiveness: why, one might wonder, should some citizens have much more political power than others?
However, on more careful examination, serious concerns emerge as to whether the idea of input equality is the best way to make sense of intuitive misgivings about the inequality generated by our system of campaign finance. In particular, equality of inputs fails to recognize important distinctions between (1) different sources of unequal political influence and (2) different types of political power. For these reasons, it may be too blunt of an ideal on which to pin the case for reform.
The first concern is that input equality fails to recognize that unequal political power may, depending on the source of the inequality, be unobjectionable.
To see this, imagine that Hasen’s arguments are widely accepted and consequently a constitutional amendment specifying that there is a compelling state interest in promoting input equality passes. Although Hasen was not the only person making such equality-based arguments in the run up to reform, his position as a prominent legal academic gave him more opportunities to persuade important individuals: legislators were more willing to meet with him because of his expertise, publishers were more willing to circulate his book, and prominent venues were more willing to give him the chance to speak. In such a scenario, Hasen exercises much more influence in the policymaking process than ordinary citizens.
Surely, however, we do not want to embrace an ideal that insists that something has gone wrong merely because an accomplished citizen brings forth persuasive arguments and thereby gains a great deal of influence. After all, a central virtue of representative government is that it facilitates public deliberation that may lead citizens to change their positions. A principle that insists that citizens must have equal political influence cannot account for the important role that representative government gives to deliberation and argument.
It may be tempting to try to circumvent this concern by insisting that persuasion is not a form of power and, as a result, influence that stems from it need not be distributed equally. However, if one takes this position, then it becomes impossible to object to extremely wealthy citizens spending their fortunes on election-related advertisements provided that those advertisements aim to persuade citizens with substantive argument. Clearly, though, Hasen does not want to say that there would be nothing wrong with the Koch network’s election spending if it is sufficiently substantive and focuses on raising important concerns about the positions endorsed by parties or candidates. Thus, unless Hasen counts influence stemming from persuasion as a form of political power, the principle will be unable to rule out much of the behavior that worries him.
While the persuasive power that Hasen has in the case described above is one example of unequal political power that many of us will find unobjectionable, there are many others. For instance, President Obama obviously has much more political power than do I. But since Obama has such power as a result of legitimate democratic elections, any objection to this inequality would be tantamount to an objection to representative government. The idea, embraced by Hasen, that citizens have “a right to equal political power” (72-73) is – if taken seriously – fundamentally at odds with representative systems of government since they work by elevating a small number of citizens into positions of enormous power. These two examples call into question the attractiveness of input equality by revealing that many inequalities in political power are not only unobjectionable, but are important components of a well-functioning representative system.
I assume that, if pressed, Hasen would allow that there is nothing wrong with some citizens having more influence than others if that influence stems from the strength of their arguments or from their legitimately holding public office. But, “equality of inputs” is insufficiently nuanced to explain such exceptions. Relying on such a principle will make reformers’ commitments appear ad-hoc and unprincipled. It would be better, then, if the case for reform hinged on a principle that could distinguish between acceptable and unacceptable inequalities.
To avoid such problems, many other egalitarian minded reformers have suggested that citizens should have equal opportunity for political influence. Just as those committed to equal opportunity for income do not insist that all citizens must earn the same wage (there is nothing objectionable about the person who elects to be a doctor making more money than the person who chooses the leisurely life of a surfing bum), advocates of equal opportunity for political influence allow that there is nothing necessarily objectionable about some citizens having more power than others.
However, just as advocates of economic equality of opportunity hold that it is objectionable for some citizens to earn more for certain types of reasons (such as their race, gender or socioeconomic background), so too advocates of equal opportunity for political influence insist that citizens should not have more chances for influence for these types of reasons. Such a position allows us to say that Charles Koch and Tom Steyer should not be able to have more political power than ordinary citizens just because of their wealth without also having to say that there is something wrong with the power that Hasen and Obama have in the examples above.
Although I have doubts about how successful positions built around the idea of equal opportunity for political influence can be, they at least allow us to distinguish between acceptable and unacceptable discrepancies in political power. Given that some inequalities in political power seem quite unobjectionable, the ability to make distinctions of roughly this kind is an important component of any compelling egalitarian justification for reform.
In sum, equality of inputs is too obtuse of a principle to capture our ordinary commitments about political equality. We just do not typically think that all citizens must have “roughly equal political power in the electoral or policymaking process.” Instead, we ordinarily distinguish between acceptable and unacceptable reasons for unequal political power.
In addition to failing to distinguish between importantly different sources of inequality, input equality problematically fails to distinguish between different types of political power.
To see this, it is helpful to examine Hasen’s core argument in favor of input equality. The argument hinges on a thought experiment involving lottery-based systems (63-65):
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The Voting Lottery: Instead of having elections to select representatives, the winner of a lottery gets to select the district’s representative. While all citizens automatically receive one ticket to the lottery, citizens, candidates, corporations and unions may also purchase tickets—which greatly increases the chances that a wealthy citizen will get to select the district’s representative.
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The Policy Lottery: Democrats and Republicans offer policy proposals and the winner of a lottery – tickets for which are distributed equally to all citizens – gets to choose which policy is enacted. After the initial lottery, there is a second round, for which one may purchase tickets. If a winner is selected in the second round, he or she is free to either “block the measure entirely or make a change that, while preserving the basics of the chosen policy, may modify it in ways that benefit the winner” (65).
Hasen thinks, and few would disagree, that these lotteries are plainly objectionable. He then aims to “use the claims against the lotteries to make the equality case for campaign finance reform” (69). The idea is that the inequalities in our system of campaign finance are sufficiently similar to the inequalities in the examples that once we concede that the lotteries are unacceptable, we must also conclude that the inequalities tolerated by our system of campaign finance are unacceptable.
To assess this approach, it is useful to distinguish between formal and informal political power. Think of formal political power as the kind of official power that one has by virtue of his or her status as a citizen or a public official. The central formal political power of an ordinary citizen is the right to vote in elections for representatives. Meanwhile, the central formal political power of a Supreme Court justice is the right to vote on the cases that come before the Court.
By contrast, think of informal power as unofficial ways of bringing others to use their formal power as one would like. This can involve rational persuasion: when the reader of Hasen’s book comes to accept the importance of considerations of equality in arguments about campaign finance reform and votes for candidates who support such a position, Hasen exercises informal power. But informal power can also be exercised in less Socratic ways: if Everytown for Gun Safety threatens to spend a million dollars running advertisements against a representative if she opposes gun control legislation, this too is a type of informal power. Everytown is not itself exercising any formal political power, it is – instead – trying to pressure representatives to exercise their formal power in the way that the group prefers.
A crucial difference between the lotteries and our electoral system is that the lotteries give the wealthy formal political power that ordinary citizens effectively lack. For instance, the winner of the Policy Lottery can unilaterally change public policy. But, by and large, the special power that the wealthy have in our system is informal power. Sheldon Adelson, for instance, may spend enormous amounts of money on behalf of his favored candidate, but – by itself – this does not ensure Adelson anything. That candidate must still find a way to convince ordinary citizens to vote for him: just ask Newt Gingrich. Likewise, wealthy corporations may be able to hire lobbyists, but those lobbyists cannot themselves block or alter legislation. Ultimately, they must somehow or another prevail upon democratically elected officials to do so for them. Again, this is different than the Lottery systems because those systems would formally empower Adelson and other wealthy citizens to directly select candidates or even alter policies.
Now, I certainly don’t want to deny that money plays an enormously important and problematic role in our electoral and policymaking processes. Instead, the point is simply that, unlike in the lottery examples, wealthy individuals do not simply get more votes or other decisive formal opportunities to veto legislation. In our ideologically charged public discussion of campaign finance, this simple point often gets glossed over. But, it’s not a minor one: if you were Sheldon Adelson (or, for that matter, Jeb Bush), would you rather live in our system or in the system governed by Hasen’s lotteries? I think that the choice for the latter is clear, and that it is so because of the formal power, unmediated by the votes of ordinary citizens, that Hasen’s lotteries give to wealthy individuals. The lotteries would allow wealthy individuals to simply dictate policy, regardless of the wishes of the broader citizenry.
To get a better sense of why this distinction is important, consider Hasen’s central policy proposal.
In order to address the inequality generated by the existing system, Hasen proposes a policy framework that combines two relatively familiar components: public funding and contribution limits. First, he proposes providing each citizen with a voucher worth $100 to contribute to candidates, parties, or interest groups of his or her choice. Second, he suggests prohibiting citizens from spending more than $25,000 on any single election and more than $500,000 across all elections during any two-year cycle. So, the idea is to both enhance the ability of ordinary citizens to participate in funding electoral competition and to prohibit the extremely wealthy from spending unlimited amounts.
Remember, though, that equality of inputs does not distinguish between formal and informal political power; instead, it simply requires that citizens have “roughly equal political power in the electoral or policymaking process.” But, if informal political power should be equally distributed, then a proposal that will allow very wealthy citizens to spend five thousand times more money on electoral debate than many of their compatriots will be able to muster seems hopelessly inegalitarian. Although Hasen recognizes that the proposal “is a big compromise on political equality,” he insists that such a compromise is necessary in order to ensure a robust political debate (10).
To assess this response, imagine that Rupert Murdoch says that he will give all candidates substantial free airtime on Fox News and advertising space in the Wall Street Journal if he is given the right to cast five thousand votes in the upcoming presidential election. In other words, he offers to ensure a robust political debate in exchange for substantially more formal power than ordinary citizens. While I don’t doubt that Hasen would reject Murdoch’s proposal, the problem is to explain how a commitment to input equality could allow him to do so. After all, if we accept a principle that does not distinguish between formal and informal political power, then Murdoch’s proposal appears identical to Hasen’s: both sacrifice input equality in order to ensure a robust political debate. The fact that most of us will think that Murdoch’s proposal is quite a bit more objectionable reflects the fact that we ordinarily distinguish between formal and informal political power.
Notice that the objection here is not just a disagreement about Hasen’s judgment concerning the “right” amount of inequality to permit. Instead, the concern is that the principle is too blunt to recognize the important distinction between formal and informal power and that, as a result, it will either need to be inappropriately resistant to informal inequality or inappropriately tolerant of formal inequality. A better approach would explicitly distinguish between different types of political power and allow that their distribution raises distinct questions.
To be sure, I am not suggesting that inequalities in the distribution of informal political power never raise concerns; instead, the point is just that those concerns are different from concerns about inequalities in the distribution of formal political power and that there is no reason to assume that all forms of political power must be distributed in just the same way.
Moreover, once we accept that there is an important difference between formal and informal political power, then the argument by analogy falls flat. While the most striking objection to the lotteries is that they allow wealthy citizens to have more formal political power than their poorer compatriots, that is not the primary problem with our political system. The alleged unfairness of our system lies, instead, in the informal power that it confers on those with extensive financial resources.
Hasen says that if you reject his equality principle, “you would also be likely to reject a ban on poll taxes and to have no problem with some people getting more votes than others” (70). But, by ignoring the distinction between formal and informal political power, this makes the case for input equality far too easy. One can reject poll taxes and Hasen’s lotteries because they give some citizens more formal political power than others just because of their wealth, without also insisting that citizens must have equal informal political power. It is perfectly coherent, for instance, to think that poll taxes are objectionable even while thinking that there is nothing wrong with Hasen having more informal influence than ordinary citizens if he is able to gain it as a result of the persuasiveness of his arguments. No reason has been provided for assuming that the criteria that we use to distribute formal political power must also apply to the distribution of informal political power.
In sum, input equality runs into problems by failing to distinguish between (1) quite different sources of unequal political power (some of which are perfectly unobjectionable) and (2) different forms of political power, which Hasen has provided no argument for thinking must be distributed identically.
Plutocrats United appears at a moment that could very well turn out to be a critical juncture for the campaign finance reform movement. Although the book was written before Justice Scalia’s passing, the final section argues that the “fight for campaign reform” will turn on “the battle over control of the Court: it will likely take a Democratic president nominating progressives who can be confirmed by the Senate” (178). In this closing section of the book, Hasen chastises reformers for wasting time and energy on attempts to amend the constitution that are doomed, because of the difficulty of the process, to come up short. Hasen rightly observes that these are mechanisms for stirring up the Democratic Party’s base rather than serious attempts at reform.
Instead, he suggests that the hope for progressive reform on campaign finance ultimately hinges on persuading “a new progressive Supreme Court to publicly accept a political equality interest that could justify reasonable campaign finance regulation, consistent with progressive values” (187). There are going to be a number of changes in the judges who sit on the Supreme Court over the coming years, beginning – though who knows when – with Scalia’s replacement. Whether or not the Court that emerges will be the progressive one that Hasen hopes for depends on the unpredictable timing of retirements (or deaths), the electoral fortunes of the parties, and the nomination battles between them.
But, even if “a new progressive Supreme Court” emerges, it will face a range of options in terms of how precisely to move forward on campaign finance. For instance, it could simply embrace a broader conception of corruption, as Lawrence Lessig and Zephyr Teachout have urged. Or, it could – like Hasen – go further and “accept political equality as a compelling interest for reform that can justify egalitarian and speech-enhancing programs” (187).
Particularly because Hasen is, I think, right that reformers should reject the view that the only appropriate goal of campaign finance reform is to eliminate corruption, it is crucial that proposed alternatives are capable of standing up to critical scrutiny. The question for readers of Hasen’s provocative and important new book is: can “equality of inputs” meet that challenge?
Posted on 1 June 2016
RYAN PEVNICK is an Associate Professor in the Wilf Family Department of Politics at New York University. His work on campaign finance is forthcoming in Philosophy & Public Affairs and The Journal of Politics.
