THE CONSTITUTION AND CAMPAIGN FINANCE REFORM: AN ANTHOLOGY (2nd ed)

Vol. 16 No. 6 (June, 2006) pp.482-487

THE CONSTITUTION AND CAMPAIGN FINANCE REFORM: AN ANTHOLOGY (2^nd ed), by Frederick G. Slabach (ed). Durham, NC: Carolina Academic Press, 2006. 632pp. Paper. $55.00. ISBN: 0-89089-424-8.

Reviewed by Steven B. Lichtman, Department of Political Science, Shippensburg University.

The Supreme Court’s 2003 campaign finance decision, MCCONNELL v. FEDERAL ELECTION COMMISSION, is one of those rare constitutional moments in which rote consistency and dramatic change play equal co-starring roles. In MCCONNELL, the Supreme Court once again rejected suggestions that reining in the high costs of running for office or leveling the playing field between rich and poor were constitutionally valid campaign finance concerns. Instead, the Court reaffirmed its decades-old holding in BUCKLEY v. VALEO that only combating the appearance of quid pro quo corruption was sufficient to justify regulations on political money.

Yet even as the Court stubbornly clung to its insistence that only corruption counted, it radically altered its view of what counted as corruption. The Court in MCCONNELL expanded on its heretofore limited perspective that only the trading of an actual vote or promise of legislative action for a campaign donation constituted the requisite quid pro quo. Presented with reams of evidence that donors were buying not only votes but also access to legislators – most notably, testimony indicating that many donors felt compelled to contribute to both sides of the partisan aisle out of a perceived need to “pay-to-play” – the MCCONNELL Court trailblazingly characterized these payments for implicit promises to hold open the door to a legislator’s office as the exact kind of corrupt act that could be restricted without offending the First Amendment.

Clearly, then, MCCONNELL v. FEDERAL ELECTION COMMISSION heralds a new constitutional era for campaign finance legislation, an era in which the Supreme Court has dramatically liberalized its tolerance for regulation even as it has perpetuated a decisional structure that has been in place since 1976. This new era calls for updated scholarship in the field, and Frederick Slabach has obliged with a second edition of his 1998 anthology, THE CONSTITUTION AND CAMPAIGN FINANCE REFORM, which features seven new chapters.

Slabach, who recently ended a three-year stint as Dean of Texas Wesleyan School of Law to become CEO of the Harry S Truman Scholarship Foundation, has produced a valuable resource for scholars and students that reproduces some of the seminal reactions to the Supreme Court’s campaign finance jurisprudence, as well as vital analysis of the various theories backstopping campaign finance legislation. As useful as the second edition is, however, it is a curiously structured update, in that the most important new developments in the field are comprehensively under-[*483] stressed.

THE CONSTITUTION AND CAMPAIGN FINANCE REFORM contains work by leading legal scholars, such as Vincent Blasi, Daniel Hays Lowenstein, and Cass Sunstein. This roster of legal-constitutional commentators is complemented by several real-world practitioners and observers. Former Oklahoma Senator David Boren – one of the modern pioneers in drafting campaign finance reform legislation – contributes a chapter, as does Democracy 21 founder and former Common Cause president Fred Wertheimer (a piece he co-authors with fellow Common Cause and Democracy 21 official Susan Weiss Manes). In addition, Slabach astutely includes prominent political science research on campaign finance, such as Anthony Corrado’s postmortem on the role that soft money played in the 2000 presidential and congressional elections.

However, the inclusion of Corrado’s work also serves to highlight its comparative isolation; it is one of the only pieces in the book authored by a political scientist, and it is the only piece that focuses on actual campaign data. Though it is problematic to suggest that some of the high-caliber constitutional analysis Slabach chooses to present should be sacrificed, it is nevertheless the case that this constitutional analysis would be better supplemented by at least one or two more “hard” political science pieces.

Granted, it can be presumed that a major aim of the book is to avoid being merely a replication of eye-glazing statistical regressions, and to instead opt for a more normative approach to a subject that is too often bogged down in the details. Of course, truly gifted political scientists like Corrado – as well as David Magleby and Michael Malbin, to name two others – are able to evaluate campaign finance reform schemes empirically by using plain language as well as by relying on raw numbers, and incorporating more of this kind of scholarship would have been made the anthology richer. A chapter outlining the practical impact of the Bipartisan Campaign Reform Act on the 2004 election cycle, for example, would have been an ideal addition.

A key side project within the volume is its brief but effective reminder that political money is inextricably linked to political advertising, and this section has been extended since the first edition. Timothy Moran’s chapter on televised political advertisements is now accompanied by a general assessment of broadcasting and the public interest from former FCC Chairman Reed Hundt. Both Moran and Hundt adeptly connect their observations about mass media political communication to the means with which such communication is funded, and these two chapters provide a particularly fascinating counterbalance to the overall themes explored elsewhere in the volume.

One of the most attractive facets of THE CONSTITUTION AND CAMPAIGN FINANCE REFORM is its juxtaposition of opposing points of view. The book is not a pro- or anti-regulation workbook, but rather a well-rounded collection of contrasting arguments. As he did in the first edition, Slabach excerpts both Judge [*484] J. Skelly Wright’s classic 1976 refutation of the BUCKLEY Court’s notion that money is speech, and Lillian BeVier’s equally influential 1985 characterization of campaign finance regulation as an injury to the First Amendment.

While one of THE CONSITUTION AND CAMPAIGN FINANCE REFORM’s winning features is its willingness to disregard the informal “ten-year rule” about what constitutes important scholarship, the volume could have benefited from a greater infusion of contemporary work. The second of Richard Briffault’s two contributions to the volume is his review of the intriguing campaign vouchers and “secret donations booth” proposals offered by Bruce Ackerman and Ian Ayres in 2002, but this chapter unintentionally stands out in this volume as one of the few pieces written in the 21st century.

Indeed, the main problem with THE CONSTITUTION AND CAMPAIGN FINANCE REFORM is that there is precious little material dealing with either MCCONNELL v. FEDERAL ELECTION COMMISSION or subsequent developments. Aside from Slabach’s introduction, only one of the twenty-one other pieces contributed to this anthology was written after MCCONNELL was decided. That piece, a United States Law Week article by Ohio State law professors Edward B. Foley and Donald Tobin, is more an account of how political professionals are coping with (and evading) the practical dictates of MCCONNELL, and less a treatment of the opinion itself.

This kind of real-world assessment of MCCONNELL’s implications is certainly a welcome addition to the literature. Indeed, one wishes that it had been accompanied by another piece exploring the growing tensions between a Supreme Court that is clearly amenable to campaign finance regulation and a Federal Election Commission which is both hostile to regulation and positioned to undercut judicial (and Congressional) intentions. The FEC’s green-lighting of “527” groups – the centerpiece of the Foley-Tobin chapter – reveals an emerging institutional dynamic that is in many ways unprecedented, and this is an inquiry that anthologies like THE CONSTITUTION AND CAMPAIGN FINANCE REFORM ought to pursue.

A more glaring omission, however, is the lack of any in-depth analysis of the MCCONNELL opinion itself from a jurisprudential perspective. The Foley-Tobin chapter offers only a brief summary of “what happened” in the opinion, without placing it in the larger contexts of either the Court’s case law on campaign finance specifically or its work on the First Amendment generally. Likewise, Slabach’s own introductory chapter dedicates only a couple of pages to this task, and yet this section is the most thorough treatment of MCCONNELL that appears anywhere in the book.

Granted, some of the holdover chapters from the first edition do anticipate some of the arguments that eventually appeared in MCCONNELL. Thomas Burke’s 1997 article in CONSTITUTIONAL COMMENTARY, [*485] “The Concept of Corruption in Campaign Finance Law,” is markedly prescient in its discussion of how campaign contributions can undermine deliberative democracy. Indeed, the Court in MCCONNELL seemed to be operating from Burke’s playbook when it slotted payments for legislative access into its existing quid pro quo framework. Peter Shane’s memorable 1996 plea for BUCKLEY to be overruled specifically condemned the distinction between contributions and expenditures that was crafted by the BUCKLEY per curiam (who were in turn building on the approach taken by D.C. Circuit Judge Edward Tamm in his earlier concurrence). One of the striking aspects of MCCONNELL and its immediate predecessor cases is how such an argument rejecting “bifurcation” can be advanced by Justices who are both in favor of regulation (John Paul Stevens) and opposed to regulation (Clarence Thomas). Yet without any substantive discussion of MCCONNELL in the anthology, this peculiar and potentially significant jurisprudential quirk is lost.

The failure to provide any significant appraisal of MCCONNELL is even odder given that Slabach made sure that the first edition of the anthology contained a chapter analyzing what was at that time the Court’s most recent major campaign finance decision: COLORADO REPUBLICAN FEDERAL CAMPAIGN COMMITTEE v. FEDERAL ELECTION COMMISSION, a/k/a “COLORADO 1.” (This “COLORADO 1” chapter is the only one from the first edition that does not appear in the second). Although it is possible for readers to cobble together an account of MCCONNELL from the various pre-MCCONNELL excerpts, it would have been much more helpful if the volume featured current evaluations of the case, just as the first edition covered “COLORADO 1.”

There is certainly no paucity of such work. In 2004 alone, Samuel Issacharoff and Richard Hasen each devoted major articles to MCCONNELL, and Richard Pildes offered his own critique as part of his HARVARD LAW REVIEW foreword on election law. While Hasen does contribute a different article to THE CONSTITUTION AND CAMPAIGN FINANCE [*486] REFORM, the anthology’s omission of Issacharoff and Pildes – two of the most eminent scholars in the field – is difficult to fathom. Readers understandably expecting that a newly-updated anthology on campaign finance would include a review of MCCONNELL, and who subsequently discover that such a review is nowhere to be found, are likely to wonder why the anthology was updated in the first place.

Finally, it should be pointed out that the book does suffer from some proofreading miscues, especially in its contributors section. Skelly Wright’s YALE LAW JOURNAL article is erroneously listed as being published in 1996, eight years after his death; it in fact came out in 1976, and was an immediate response to the BUCKLEY decision. More amusingly, Bradley Smith’s anti-regulation polemic, “Faulty Assumptions and Undemocratic Consequences of Campaign Finance Reform,” is referenced as “Faculty Assumptions and Undemocratic Consequences . . . ,” a typo which might well gladden Smith’s heart, but which nevertheless should have been caught prior to publication.

Although THE CONSTITUTION AND CAMPAIGN FINANCE REFORM is an excellent compilation of pre-MCCONNELL material on both the constitutional implications of regulations on political money and the ways in which those regulations have worked in the rough-and-tumble of electoral politics, it is strangely deficient in its coverage of the current subject. While the book can assuredly be recommended as a handy source of historically significant legal and political scholarship on campaign finance, students and scholars hoping for a volume that will also provide analysis of current questions and debates will have to look elsewhere.

REFERENCES – EXCERPTED MATERIALS:

BeVier, Lillian R., 1985. “Money and Politics: A Perspective on the First Amendment and Campaign Finance Reform.” 73 CALIFORNIA LAW REVIEW 1045.

Briffault, Richard, 2003. “Campaign Finance Reform: A Review of Voting With Dollars.” 91 CALIFORNIA LAW REVIEW 643.

Burke, Thomas F., 1997. “The Concept of Corruption in Campaign Finance Law.” 14 CONSTITUTIONAL COMMENTARY 127.

Corrado, Anthony, 2002. “Party Finance in the 2000 Elections: The Federal Role of Soft Money Financing.” 34 ARIZONA STATE LAW JOURNAL 1025.

Foley, Edward B. and Donald Tobin, 2004. “Tax Code Section 527 Groups Not An End-Run Around McCain-Feingold.” 72 THE UNITED STATES LAW WEEK 2403.

Shane, Peter M., 1996. “Back to the Future of the American State: Overruling Buckley v. Valeo and Other Madisonian Steps.” 57 UNIVERSITY OF PITTSBURGH LAW REVIEW 443.

Smith, Bradley A., 1996. “Faulty Assumptions and Undemocratic Consequences of Campaign Finance Reform.” 105 YALE LAW JOURNAL 1049.

Wright, J. Skelly, 1976. “Politics and the Constitution: Is Money Speech?” 85 YALE LAW JOURNAL 1001.

REFERENCES:

Ackerman, Bruce, and Ian Ayres. 2002. VOTING WITH DOLLARS – A NEW PARADIGM FOR CAMPAIGN FINANCE REFORM. New Haven: Yale University Press.

Hasen, Richard L., 2004. “Buckley Is Dead, Long Live Buckley: The New Campaign Finance Incoherence of McConnell v. Federal Election Commission.” 153 UNIVERSITY OF PENNSYLVANIA LAW REVIEW 31. [*487]

Issacharoff, Samuel, 2004. “Throwing in the Towel: The Constitutional Morass of Campaign Finance.” 3 ELECTION LAW JOURNAL 259.

Pildes, Richard H., 2004. “Foreword: The Constitutionalization of Democratic Politics.” 118 HARVARD LAW REVIEW 28.

CASE REFERENCES:

BUCKLEY v. VALEO, 424 U.S. 1 (1976).

COLORADO REPUBLICAN FEDERAL CAMPAIGN COMMITTEE v. FEDERAL ELECTION COMMISSION (“COLORADO 1”), 518 U.S. 604 (1996).

MCCONNELL v. FEDERAL ELECTION COMMISSON, 504 U.S. 93 (2003).

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