Aligning Campaign Finance Law

Article — Volume 101, Issue 5

101 Va. L. Rev. 1425
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“You have some ideological extremist who has a big bankroll and they can entirely skew our politics.” –Barack Obama, Press Conference, October 8, 2013

Here are some facts about money and politics in today’s America. At the federal level, campaign spending totaled $7.3 billion in 2012. Almost all of this funding came from individual donors, not corporations or unions.Individuals gave about half of their contributions to specific candidates, a quarter to political parties, and a quarter to Political Action Committees (“PACs”) and Super PACs.  These donors were in no way representative of the country as a whole. They were heavily old, white, male, and, of course, wealthy. They also were far more polarized in their political views than the general population. Most Americans were moderates in 2012, but most donors were staunch liberals or conservatives.

However, there is no evidence that much of this money is traded explicitly for political favors. Proof of quid pro quo transactions is vanishingly rare, and studies that try to document a link between PACs’ contributions and politicians’ votes typically come up empty. But there is evidence that politicians’ positions reflect the preferences of their donors to an uncanny extent. The ideal points of members of Congress—that is, the “unique set[s] of policies that they ‘prefer’ to all others”—have almost exactly the same bimodal distribution as the ideal points of individual contributors. They look nothing like the far more centrist distribution of the public at large.

Suppose a jurisdiction is troubled by this situation and decides to enact some kind of campaign finance reform. What reason might it give? One option is preventing the corruption of elected officials. But the Supreme Court has recently narrowed the definition of corruption to quid pro quo exchanges, and, as just noted, such exchanges do not occur with any regularity in contemporary America. Another possibility is avoiding the distortion of electoral outcomes due to the heavy spending of affluent individuals (and groups). But the Court has emphatically rejected any governmental interest in ameliorating “the corrosive and distorting effects of immense aggregations of wealth.” Yet another idea is equalizing the resources of candidates or the electoral influence of voters. But this equality interest has been deemed invalid in even more strident terms. “[T]he concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment.”

So is our reformist jurisdiction out of luck? Not quite. This Article’s thesis is that there is an additional interest, of the gravest importance, that both is threatened by money in politics and is furthered by (certain) campaign finance regulation. This interest is the promotion of alignment between voters’ policy preferences and their government’s policy outputs. Alignment operates at the levels of both the individual constituency and the jurisdiction as a whole. Within the constituency, the views of the district’s median voter and the district’s representative should align. One step up, the preferences of the jurisdiction’s median voter and the legislature’s median member should correspond. Moreover, at the jurisdictional level, the median voter’s views should be congruent not only with the median legislator’s positions, but also with actual policy outcomes. Preference alignment refers to the former sort of congruence; outcome alignment to the latter.

Alignment is a significant—indeed, compelling—interest because of its tight connection to core democratic values. At the district level, it follows closely from the delegate theory of representation. A delegate “must do what his principal would do, must act as if the principal himself were acting . . . must vote as a majority of his constituents would,” as Hanna Pitkin wrote in her landmark work. In other words, a delegate must align his own positions with those of his constituents. Likewise, at the jurisdictional level, alignment is essentially another term for majoritarianism. To say that policy should be congruent with the preferences of the median voter is to say that it should be congruent with the preferences of the voting majority. Of course, majoritarianism is not our only democratic principle. But, as Jeremy Waldron has argued, it is “required as a matter of fairness to all those who participate in the social choice.”

Unsurprisingly, given its democratic roots, the concept of alignment has surfaced repeatedly in the Court’s campaign finance decisions. In a 2000 case, the Court recognized “the broader threat from politicians too compliant with the wishes of large contributors”—and not compliant enough with the wishes of voters. In a 2003 case, the Court warned of “the danger that officeholders will decide issues not on the merits or the desires of their constituencies, but according to the wishes of those who have made large financial contributions.” And in its most recent campaign finance decision, McCutcheon v. FEC, a decision otherwise unremittingly hostile to regulation, the Court strikingly concluded its opinion with a paean to alignment. “Representatives are not to follow constituent orders, but can be expected to be cognizant of and responsive to those concerns. Such responsiveness is key to the very concept of self-governance through elected officials.”

Despite these doctrinal hints, some scholars claim that alignment is a forbidden interest in the campaign finance context. Kathleen Sullivan reasons that alignment reflects a particular theory of democracy, and that speech cannot be restricted based on “one vision of good government.” Similarly, Robert Post contends that in the First Amendment domain of public discourse, public opinion is forever changing shape. Thus “[t]here is . . . no ‘baseline’ from which [misalignment] can be assessed.” These critiques are misplaced. As to Sullivan, it might be controversial for the Court to embrace a specific model of democracy, but surely a popularly elected legislature may do so. In fact, legislatures adopt theories of self-governance all the time, both when they regulate money in politics and when they enact other electoral policies. As to Post, public opinion actually is not as fluid as he suggests, and alignment furthers what he deems the crucial aim of public discourse: making “persons believe that government is potentially responsive to their views.” It is unclear as well why electoral speech should be considered part of public discourse rather than the managerial domain of elections, in which speech may be regulated to serve the domain’s ends.

Even if alignment is not a forbidden interest, it may be a duplicative one. As Richard Hasen has argued, it may be nothing more than a slick repackaging of the anti-distortion or equality interests that the Court already has rejected. This charge also misses its mark. The distortion that cannot justify campaign finance regulation, in the Court’s view, is the skewing of electoral outcomes due to large expenditures. The Court has never suggested that the warping of policy outcomes due to large contributions (or their equivalent) is an illegitimate basis for regulation. The distortion of voters is different from that of representatives.

Alignment also is distinct from equality (in all its guises). One form of equality is the leveling of candidate resources. But candidates need not be equally funded to produce alignment, nor does alignment follow from evenly sized war chests. Another kind of equality is equal representation for all voters. But it is only the median voter, not every voter, who is entitled to congruence under the alignment approach. Alignment at the median can arise only if there is misalignment at all other points in the distribution. A final type of equality is equal voter influence over the political process. But equal influence is, at most, a means to achieving alignment. It is not the end itself. Alignment also is possible under conditions of unequal influence, and equal influence does not necessarily result in alignment.

Assume, then, that alignment is a compelling interest that neither is barred by First Amendment theory nor is identical to goals the Court already has rebuffed. We are not done yet. The next step is to determine whether money in politics can generate misalignment, and whether campaign finance reform can promote alignment. According to a burgeoning political science literature, the answer to both questions is yes, at least sometimes. The relevant empirical evidence fits into three categories.

First, according to numerous studies, wealthy Americans have more influence on politicians’ voting records and actual policy outcomes than do poor or middle-class Americans. This extra sway is evident whether House or Senate voting records, or state or federal policy outcomes, are considered. It also appears even after non-monetary forms of political participation (voting, volunteering, contacting officials, etc.) are controlled for. Second, as noted at the outset, politicians and donors have nearly identical ideal point distributions: highly bimodal curves in which they cluster at the ideological extremes and almost no one occupies the moderate center. Voters’ views, in contrast, exhibit a normal distribution whose single peak is in the middle of the political spectrum. It is fair to say that donors receive exquisitely attentive representation—and that voters receive virtually no representation at all.

Third, campaign finance regulation can be aligning or misaligning based on its implications for how candidates raise their money. Tight individual contribution limits reduce the funds available from polarized individual donors. They therefore encourage candidates to shift toward the ideological center, the home of the median voter. Conversely, stringent party or PAC contribution limits have the opposite effect. Both parties and PACs are relatively moderate in their giving patterns—parties because their chief goal is winning as many seats as possible, PACs because they want access to incumbents of all political stripes. Reducing the funds available from these more centrist sources thus incentivizes candidates to move toward the ideological fringes. As for public financing, its impact hinges on its treatment of individual donors. “Clean money” schemes that provide block grants to candidates after they receive enough individual contributions are misaligning because of the extremism of the donors who initially must be wooed. But multiple-match systems that offer high matching ratios for small contributions may be aligning because of the more representative pool of donors they attract.

What do these findings mean for the constitutionality of different policies? Individual contribution limits would sit on sturdy legal ground under the alignment approach. Whatever their link may be to the prevention of corruption, they demonstrably further the governmental interest in alignment. Unlike under current law, individual expenditure limits also might survive judicial scrutiny. Since politicians mirror the views of not only individuals who donate directly to them, but also individuals who spend on their behalf, no great significance would attach to the contribution/expenditure distinction. Public financing that relies on individual donors who resemble the general population (or that does not rely on individual donors at all) would be valid as well. On the other hand, contribution and expenditure limits for parties and PACs could not be sustained by reference to alignment. Since these entities are relatively moderate, their funds exert little misaligning pressure. Public financing that requires appeals to polarized individual donors also could be justified only on the basis of other interests.

The Article proceeds as follows. Part I introduces the alignment interest. It describes the different forms of alignment, explains the role the concept has played in earlier campaign finance cases, and responds to the claim that general First Amendment principles proscribe the interest. Part II argues for the distinctiveness of alignment. It compares alignment to the interests the Court already has considered—anti-corruption, anti-distortion, and equality—and shows that it is different from each of them. Part III conveys the current state of knowledge about alignment. It summarizes the many studies on the misaligning influence of money in politics, as well as the fewer studies on the aligning impact of (some) regulation. Lastly, Part IV assesses the implications of this literature for the validity of different policies. Individual contribution and expenditure limits, and certain kinds of public financing, should be upheld because they promote alignment. But contribution and expenditure limits for parties and PACs, and other kinds of public financing, cannot be justified on this basis.

One final question should be answered before proceeding further. Given the array of interests already asserted in the campaign finance context, is there really a need for another one? In fact, the need is dire, for two reasons. First, the only interest the Court currently considers to be legitimate—the narrowly construed anti-corruption interest—neither captures the full extent of the harm caused by money in politics, nor is sufficient to sustain most campaign finance regulation. In recent years, policies have toppled like dominos, rejected by the Court due to a lack of fit with this interest. If the reform project is to avoid collapsing entirely, we must, in Michael Kang’s words, “look[] beyond the prevention of corruption as defined by the Court.”

Second, the misalignment produced by electoral fundraising and spending is not holding steady. Instead, it is getting worse. Over the last generation, the share of campaign funds provided by the wealthiest 0.01% of Americans has surged from about 10% to more than 40%. During the same period, individual donors steadily have become more extreme in their political views, and candidates steadily have become more dependent on their contributions. As a result, the representational gap in favor of the affluent is now five times larger than it was in the 1970s and 1980s. Misalignment thus is not a problem that can safely be ignored. Rather, it is a problem that—increasingly—threatens to swallow American democracy.

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  Volume 101 / Issue 5  

Inside-Out: Beyond the Internal/External Distinction in Legal Scholarship

By Charles L. Barzun
101 Va. L. Rev. 1203

Taking Care of Federal Law

By Leah Litman
101 Va. L. Rev. 1289

Reading Statutes in the Common Law Tradition

By Jeffrey A. Pojanowski
101 Va. L. Rev. 1357

Aligning Campaign Finance Law

By Nicholas O. Stephanopoulos
101 Va. L. Rev. 1425