The Court's Money Moment
John Henderson, Robert A. Pastor and Jamin Raskin
February 28, 2006
John Henderson is a junior fellow, Robert Pastor is the director, and Jamin Raskin is a faculty member of the Center for Democracy and Election Management at American University. Pastor is also a professor of international relations and Raskin is a professor of constitutional law at the Washington College of Law. The three just collaborated to prepare an extensive cross-national survey of campaign finance expenditures for an amicus brief to the Supreme Court on Randall v. Sorrell.
Is unregulated campaign spending essential to political freedom? For three decades, the Supreme Court has assumed so. Ever since a landmark decision in 1976, the Court has viewed efforts to limit campaign spending as a violation of the First Amendment by reducing electoral competitiveness and impairing political speech.
This week the Court has an historic opportunity to revisit its decision in Buckley v. Valeo —which wrought thirty-plus years of unlimited campaign spending and contribution limits that have weakened our democracy. In the case of Randall v. Sorrell , the Court is considering spending limits adopted recently by the state of Vermont. The state and its supporters are urging the Court to uphold the spending limits on the basis that they prevent corruption, sustain confidence in government, create more equal political opportunity, and spare the time of elected officials.
All the money circulating in American elections is buying something, to be sure, but it is definitely not accountability and competitive elections. And it may indeed be resulting in non -competitive elections. In the United States, House and Senate incumbents are reelected nearly 99 percent of the time. By comparison, the combined incumbent reelection rate for Canada, New Zealand and the United Kingdom is a somewhat healthier 83.1 percent.
Of course, it is not possible to identify precisely the causes of uncompetitive elections because many factors—single-member districts, gerrymandering, unrestrained spending—converge to affect competition. But if you talk to political challengers, they clearly believe that unlimited spending greatly benefits incumbents, who have the inside track for collecting large contributions from interested private money. Congressional incumbents in the United States routinely outspend their challengers by ratios of more than 3 to 1. Unregulated spending is almost certainly driving out competition and insulating incumbents.
In order for the Court to avoid a replay of the arguments offered in the 1970s, it should test the premises of the Buckley decision against the experience of other nations that have taken a different path by imposing limits on both campaign contributions and spending. The Court will find the opposite of its initial assumption that spending limits somehow give incumbents an edge.
Despite the claim that challengers need unregulated spending to compete against the advantages of incumbency, all of the evidence available from some of America's closest democratic friends shows that elections are more competitive when campaign expenditures are regulated. Among eight democracies with political institutions that are most similar to the United States, it is precisely those that regulate political campaign spending—such as Canada, the United Kingdom and New Zealand—that enjoy the most competitive elections (defined as elections decided by the closest margins). Conversely, the democracies that do not curb campaign spending—the United States, Jamaica and Ireland—have the least competitive elections.
Indeed, if we define a "competitive" election as one decided by more than 10 percent of the voters, the competitiveness of elections in the U.S. has been declining steadily over the last eight years at the same time that uncontrolled campaign expenditures have skyrocketed. It doesn’t have to be this way. To illustrate, consider Canada's 2004 election—with spending limits—where 36.5 percent of all legislative races were competitive. In the same year, only 7 percent of legislative races in the United States were.
Similarly, evidence from abroad suggests that expenditure limits do not erode civil and political rights or the freedoms of speech and the press. According to ratings provided by Freedom House, a nongovernmental organization that annually judges the status of political and civil freedom for every nation in the world, countries with expenditure limits on average earned consistently higher "freedom scores" than countries without such ceilings. More to the point, no democracy has experienced a decline in its freedom ranking after introducing limits on campaign expenditures, and some new democracies––like Mexico, Taiwan, Korea and Thailand––have actually seen marked improvement in political freedom while controlling election spending.
Now, of course, those who accept the Court’s basic premise in Buckley will contend that campaign spending limits themselves constitute intrinsic violations of freedom since they impose a “quantity restriction” on speech. Thus, the free societies with spending caps would be even freer without them. But this equates freedom with the right to spend unlimited money, a kind of freedom that few people enjoy and that thwarts other types of freedom, like the freedom to participate in a real political dialogue on an equal basis.
The comparative perspective helps us to see that unregulated spending may in fact drive out political competition and squelch authentic political discussion. The Supreme Court’s controversial view that identifies unlimited campaign spending with free speech is not shared by the rest of the democratic world. Indeed, most democracies believe that political freedom and competition are more likely to occur when the influence of money is reduced or eliminated from election campaigns. If the United States limits campaign spending, there would be no guarantee that freedom and competition automatically would be enhanced, but fears of a loss of freedom and competition are clearly unwarranted.