Campaign Finance and the First Amendment: A Rawlsian Analysis

Iowa Law Review

Volumn 85, Issue 3, 2000, Pages 1065-1105

  Freedman, Eric ^a  

^a NONE

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EID: 0034375691     PISSN: 00210552     EISSN: None     Source Type: Journal    
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References (209)

1. See RONALD DWORKIN, FREEDOM'S LAW. THE MORAL READING OF THE AMERICAN CONSTITUTION 15 (1996) (discussing concepts and conceptions about democracy); RONALD DWORKIN, LAW'S EMPIRE 71-72 (1986) (outlining the contrast between concepts and conceptions).
2. See RONALD DWORKIN, FREEDOM'S LAW. THE MORAL READING OF THE AMERICAN CONSTITUTION 15 (1996) (discussing concepts and conceptions about democracy); RONALD DWORKIN, LAW'S EMPIRE 71-72 (1986) (outlining the contrast between concepts and conceptions).
3. George Kateb, The Moral Distinctiveness of Representative Democracy, 91 ETHICS 357, 357 (1981).
4. Id.
5. Id. at 358. There are at least three ways that we may view representation. First, it may be the case that people elect the wisest, most capable members of society. Since these people are the wisest members of society, it may be argued that they know better than the remainder of the population how we ought to live. They enact policies and laws according their beliefs about how we should live. Because they are less swayed by immediate passion, they may be able to legislate a better future. Second, representative government may be a microcosm of society. That is, elected bodies should (roughly) resemble society's population. Since the government mirrors the population, when it acts, it accounts for the desires and demands of society's different sectors. Third, people may elect representatives whose preferences are most similar to their own, at least with respect to core issues. This may explain the race to the political middle ground. It also brings to mind Rousseau's distinction between the general will and the will of all. See JEAN-JACQUES ROUSSEAU, THE SOCIAL CONTRACT Bk. II § III (G.D.H. Cole Trans., Prometheus Books 1988). That is, should people get what they want or what they should have? While reasonable people may disagree about various theories of representation, most will agree that the electoral process must take into account the power distribution among the citizenry.
6. James Fishkin, Introduction: Symposium On The Theory And Practice Of Representation, 91 ETHICS 353, 353 (1981).
7. Kateb, supra note 2, at 360. Excluding those citizens that lack the right to vote, children and convicts, for example, the people ought to share the political power equally.
8. ROBERT A. DAHL & CHARLES E. LINDBLOM, POLITICS, ECONOMICS AND WELFARE 41 (1953).
9. AUSTIN RANNEY & WILLMOORE KENDALL, DEMOCRACY AND THE AMERICAN PARTY SYSTEM 16 (1956).
10. For an illuminating discussion about political equality, see Jonathan W. Still, Political Equality and Election Systems, 91 ETHICS 375 (1981) (outlining the six criteria of political equality).
11. See Daniel Ortiz, The Democratic Paradox of Campaign Finance Reform, 50 STAN. L. REV. 893, 901 (claiming that "candidates themselves perceive that money makes a big difference in their election prospects").
12. Man is by nature a "political animal." ARISTOTLE, THE POLITICS Bk 1 Ch. 2 § 1253a7 (Ernest Barker trans., Oxford Univ. Press 1995). Moreover, "speech is what makes man a political being." HANNAH ARENDT, THE HUMAN CONDITION 3 (1958). Hannah Arendt argues that personal communication between men is what makes worldly experiences meaningful and political activity exhilarating. Without interpersonal, political communication, man is not a political being. Id. at 4, 27. Arendt thus suggests that the new methods of communication actually hinder man's political ability.
13. While the use of large financial resources seems to be the general rule, we also must note the exceptional situations in which one candidate or party does not deploy capital at the level of his or her competitors and is nevertheless successful. An example of this type of campaign would be the recent Minnesota gubernatorial race won by Jesse Ventura.
14. U.S. CONST, amend. I.
15. See Monitor Patriot Co. v. Roy, 401 U.S. 265, 272 (1971) (stating that "the First Amendment has its fullest and most urgent application to speech uttered during a campaign for political office"); Mill v. Alabama 384 U.S. 214, 218 (1966) (articulating that "[w]hatever differences may exist about interpretations of the First Amendment, there is practically universal agreement that a major purpose of the Amendment was to protect the free discussion of governmental affairs"). Owen Fiss similarly argues that: [T]he Free Speech Tradition can be understood as a protection of the street corner speaker. An individual mounts a soapbox on a corner in some large city, starts to criticize governmental policy, and then is arrested . . . . [T]he First Amendment is conceived of as a shield, as a means of protecting the individual speaker from being silenced by the state.
16. Owen Fiss, Free Speech and Social Structure, 71 IOWA L. REV. 1405, 1408-10 (1986).
17. For example, in recent years, the framework of the First Amendment has been expanded in protect commercial speech. See Central Hudson v. Pub. Servs. Comm'n of New York, 447 U.S. 557 (1980) (holding that whereas commercial speech receives less protection, it is nevertheless afforded a degree of First Amendment protection).
18. See Federal Election Campaign Act of 1971, Pub. L. No. 92-225, 86 Stat. 3 (codified as amended at 2 U.S.C. §§ 431-55 and various sections of 18 & 47 U.S.C.); Federal Election Campaign Act Amendments of 1974, Pub. L. No. 93-443, 88 Stat. 1263 (codified as amended at various sections of 2, 18, 26, & 47 U.S.C.); Federal Election Campaign Act Amendments of 1976, Pub. L. No. 94-283, 90 Stat. 475 (codified as amended at scattered sections of 2, 18 & 26 U.S.C.); Federal Election Campaign Act Amendments of 1979, Pub. L. No. 96-187, 93 Stat. 1339 (codified as amended in various sections of 2, 15, 18, 22, 26, & 42 U.S.C.).
19. See infra text accompanying notes 46-47 (defining "soft money").
20. John R. Bolton, Constitutional Limitations on Restricting Corporate and Union Political Speech, 22 ARIZ. L. REV. 373, 405-06 (1980);
21. Edwin M. Epstein, The PAC Phenomenon: An Overview, 22 ARIZ. L. REV. 355, 360 (1980);
22. Fred Wertheimer, The PAC Phenomenon in American Politics, 22 ARIZ. L. REV. 603, 606n.19 (1980) (stating collectively that in the election cycle of 1979-80, labor union PACs spent a total of $26.4 million, $14.1 million of which went directly to candidates; corporations spent $31.8 million, of which $21.7 million went directly to candidates; and trade, membership, and health organizations spent a total of $33.6 million, including direct candidate contributions of $17.2 million).
23. The consent need not be actual consent. Hypothetical consent, while not actual consent, is sufficient.
24. JOHN RAWLS, A THEORY OF JUSTICE (1971) [hereinafter THEORY].
25. Id.
26. ROBERT NOZICK, ANARCHY, STATE, AND UTOPIA 183 (1974).
27. By allowing some individuals and corporations to deploy hard and soft money to disproportionately influence elections, the Court is allowing certain sectors of society to circumvent the one person, one vote maxim. Moreover, because of the primacy that elected representatives play in shaping the basic structure of society, under the current state of campaign finance, the people risk the potential of having their basic liberties altered and or infringed upon by a few, wealthy segments of the population. Consequently, not only is the Court's campaign finance reform jurisprudence misfounded, but the current results reached by the courts also lack moral foundation.
28. The American form of representative democracy is founded on the maxim of one person, one vote. This principle carries strong utilitarian and Kantian deontological considerations. From the utilitarian perspective each person should be afforded his or her fair share of power. In a democracy this share is one vote for each member of society. By giving each person only one vote, all citizens are assured that they were taken into account by the political process. Similarly, from the deontological position, the government must treat each person with equal concern and respect. By allocating only one vote to each person, the government manifests its position that - when it comes to governmental functions - each citizen is equally situated. We must determine how close to this principle our government actually comes. Individuals can distort the democratic process by campaign contributions that transform an irrelevant economic advantage into political advantage. Even though each person has only one vote to cast, because politicians need money to run successful campaigns, political actors become more responsive to big money donors. The governed, because of money's distorting effect, are no longer treated with equal concern and respect. Political campaign contributions erode the principle of equal influence in the political arena and therefore these contributions must be curbed.
29. The case may be that even when people in the best and worst representative economic positions contribute equally, the party, organization, or candidate that receives the contribution is better off when individuals in the prominent positions donate because there are certain intangible benefits to their contributions. Here I have in mind the publicity associated with a contribution made by a celebrity or socially important organization.
30. For another discussion of a voucher system, see Richard L. Hansen, Clipping Coupons For Democracy: An Egalitarian/Public Choice Defense Of Campaign Finance Vouchers, 84 CAL. L. REV. 1 (1996) (arguing that a voucher system will promote a more egalitarian political market).
31. It takes a lot of money to run a winning campaign. Ronald Dworkin argues that low limits tend to favor incumbents, who already enjoy name recognition, over newcomers. He also contends that the campaign finance limits ought to be higher because unknown candidates need to generate and spend a lot of money to achieve public awareness. See Ronald Dworkin, Speech at the University of Iowa College of Law (Nov. 20, 1998) (discussing these ideas during the lecture as well as during a subsequent conversation). While his position is valid, I believe that equalizing the playing field via a voucher system will actually work to the advantage of unknown candidates and fringe parties. See infra discussion at page 31.
32. See Randall Bezanson, Institutional Speech, 80 IOWA L. REV. 735, 741 (1995) (claiming that speech has both a use value and exchange value).
33. Id. at 748. Speech is a human act, "that for purposes of the First Amendment, protected speech is primarily a product of the human act of speaking." Id. at 755.
34. This seems to explain the different levels of protection that the Court affords to different types of speech. For example, the Court takes the position that political speech is protected by the core of the First Amendment, while commercial speech receives only differential protection. See Liquormart, Inc. v. Rhode Island, 517 U.S. 484 (1995) (finding that states have greater power to regulate commercial speech); Central Hudson v. Pub. Serv. Comm'n of New York, 447 U.S. 557 (1980) (finding that the First and Fourteenth Amendments protect commercial speech, but it receives less protection).
35. See J. Skelly Wright, Money And The Pollution Of Politics: Is The First Amendment An Obstacle To Political Equality?, 82 COLUM. L. REV. 609 (1982) (taking the position that financial resources threaten to distort "political campaigns and referenda").
36. See id. at 624 (arguing that "[i]n America money controls access to the communications media").
37. See Ortiz, supra note 10, at 899 (claiming that many reformers take the position that a democratic system requires political equality). Here, I am assuming that political equality is synonymous with speech equality. This, however, is a highly contested concept.
38. See Jonathan M. Rich, Campaign Finance Legislation: Equality And Freedom, 20 COLUM. J.L. & SOC. PROBS. 409, 418-19 (1986) (claiming that large contributions receive "more attention from candidates than small ones. If a candidate wins, he will probably be more accessible to the large contributors and more willing to act in accordance with their wishes since he is relatively more dependent upon them for political survival."); Ortiz, supra note 10, at 893 (contending that "campaign finance reform rests on a central fear: that political actors will convert economic advantage into political power").
39. Id.
40. See Ortiz, supra note 10, at 901 (discussing the affects of private contributions).
41. Id. at 901-02 (stating essentially the same argument).
42. This becomes really dangerous if uninformed voters respond in predictable manners to specific impulses, i.e., political commercials. If this is the case then economic power can be used to realize desired outcomes, and may even serve to disenfranchise the informed voters. See id. at 904 (noting this possibility).
43. See id. at 901 (claiming that because candidates believe that money makes a difference in their election prospects, "they overvalue the interests of contributors").
44. See Ronald Dworkin, The Curse of American Politics, N.Y. REV. BOOKS, Oct. 17, 1996, at 23 (noting this principle).
45. Kathleen M. Sullivan, Political Money and Freedom of Speech, 30 U.C. DAVIS L. REV. 663 (1997) (stating that in 1996 a total of three billion dollars was spent on all elections, "$660 million on electing Congress, and $1 billion on the presidential elections").
46. Id. We can infer from the amount of money raised in the 1996 election cycle that candidates spend a considerable amount of time engaged in fund raising activities.
47. See Cass R. Sunstein, Political Equality and Unintended Consequences, 94 COLUM. L. REV. 1390, 1392 (1994) (noting that cash grants encourage voting with private interests).
48. See Colorado Republican Fed. Campaign Comm. v. Federal Election Comm'n, 518 U.S. 604 (1996) (defining hard money as money "spent in connection with federal candidates"); Brent A. Fewell, Comment, Awash in Soft Money and Political Corruption: The Need for Campaign Finance Reform, 36 DUQ. L. REV. 107, 109 (1997) (stating that "direct contributions to candidates" are hard money).
49. See Colorado Republican Fed. Campaign Comm. v. Federal Election Comm'n, 518 U.S. 604 (1996) (defining hard money as money "spent in connection with federal candidates"); Brent A. Fewell, Comment, Awash in Soft Money and Political Corruption: The Need for Campaign Finance Reform, 36 DUQ. L. REV. 107, 109 (1997) (stating that "direct contributions to candidates" are hard money).
50. See Note, Soft Money: The Current Rules And The Case For Reform, 111 HARV. L. REV. 1324, 1332-33 (decreeing that during the 1996 election, pro-candidate issue advertisements were funded via the deployment of hard money contributions).
51. See Fewell, supra note 44, at 109 (describing soft money as "contributions to political parties (as opposed to candidates) that solely support party-building activities, such as: voter registration, 'get out the vote' drives, issue advocacy, and the purchase of campaign items such as slate cards, bumper stickers, and yard signs").
52. See id. (noting that soft money is not regulated by federal election laws).
53. See Rhonda McMillion, Divvying up the War Chests, Debate Over Campaign Finance Reform Focuses on 'Soft Money,' 83 A.B.A. J. 94 (1997) (contending that in "recent years, party committees have been using soft money for advertisements advocating specific federal candidates"); Sullivan, supra note 41, at 668 ("Since the 1988 campaign, use of soft money to finance de facto campaign advertisements has proliferated.").
54. Colorado Republican Fed. Campaign Comm. v. Fed. Election Comm'n, 518 U.S. 604, 615 (1996) ("[Restrictions on independent expenditures significantly impair the ability of individuals and groups to engage in direct political advocacy and represent substantial restraints on . . . political speech.").
55. Hard money may be contributed directly to candidates, see the discussion of hard money contributions and accompanying notes. Soft money is now also employed to directly benefit specific candidates. See Sullivan, supra note 41, at 668 ("[S]ince the 1988 campaign, use of soft money to finance de facto campaign advertisements has proliferated.... The amount of soft money raised by the two major parties combined has increased from $89 million in 1992 to $104 million in 1994 to roughly $250 million in 1998.").
56. See Note, supra note 45, at 1324 (distinguishing coordinate expenditures from "contributions" which would be limited to $5,000 under the contribution gap).
57. Colorado Republican, 518 U.S. at 616; Note, supra note 45, at 1332 (stating that "[u]nder Colorado Republican, party committees may spend money on "independent expenditures" - expenditures that expressly advocate the election or defeat of federal candidates.").
58. 518 U.S. 604 (1996).
59. See id. at 612 (noting that attacks on Congressman Wirth began even before the Democratic primary).
60. See id. at 614-15 (noting the difference between spending money on one's views apart from a campaign and contributing money to a candidate). Limiting a political party's independent expenditures is unconstitutional because: A political party's independent expression not only reflects its members' views about the philosophical and governmental matters that bind them together, it also seeks to convince others to join those members in a practical democratic task; the task of creating a government that voters can instruct and hold responsible for subsequent success or failures. The independent expression of a political party's views is "core" First Amendment activity not less than is the independent expression of individuals, candidates, or other political committees. Id. at 615-16. The Court stated that the government's interest in preventing corruption or the appearance of corruption is not a sufficient justification for limiting uncoordinated independent expenditures (like the radio advertisement) because the opportunity for quid pro quo corruption is "attenuated at best." Id. at 616-17. This view, however, assumes that candidates and political parties operate independently from each other.
61. See Buckley v. Valeo, 424 U.S. 1, 21 (1976). This concept is known as speech as proxy. The contributor is not the individual who is expressing his or her personal political views. Instead, it is the recipient who transforms the donation into political speech. Therefore, it may be the case that the candidate or organization uses the contribution to discuss an issue on which the donor does not fully agree with the speaker.
62. Id.
63. Id.
64. Id. Yet we must note that this position assumes a particular theory about the size as opposed to the significance of the support. For example, the homeless person who can only afford to give two dollars and does so expresses his or her preferences at least at the same intensity, and perhaps even more, than the wealthy citizen who donates one million dollars and can afford to donate a larger sum of money.
65. See Buckley, 424 U.S. at 1 (holding that provisions limiting individual contributions to campaigns were constitutional despite First Amendment objections).
66. See Bezanson, supra note 28, at 739 (defining "institutional speech" as "speech that has no speaker - no point of human origin in the voluntary communicative intention of an individual who can be identified").
67. See id. at 735-36 ("Authorship - a point of human origin whose own intellect is being expressed - is a central building block of the First Amendment idea of speech.").
68. See id. at 737 (stating that "[i]nstitutional speech is abstracted from the individual").
69. See Austin v. Michigan Chamber of Commerce, 494 U.S. 652, 654 (1990) (discussing corporate speech).
70. See id. at 658-60 (holding that the basic free speech of corporations is constitutionally protected); see also Bezanson, supra note 28, at 778 (describing the key rationale as traceability).
71. 435 U.S. 765 (1978).
72. See id. at 767-68 (finding the statute unconstitutional).
73. See id. at 776-77 (stating that "there is practically universal agreement that a major purpose of [the First] Amendment was to protect the free discussion of governmental affairs") (quoting Mills v. Alabama, 384 U.S. 214, 218 (1966)).
74. Bellotti, 435 U.S. at 784.
75. Id.
76. 494 U.S. 652, 652 (1990).
77. See id. at 663-64 n.2 (contending that disclosure of the chamber's political activities would not assure correspondence between the organization's treasury funds and members' support for its political ideals, since the chamber's members had no stake in its assets or earnings and thus had incentive to continue their financial support regardless of their agreement with its political agenda).
78. Bezanson, supra note 28, at 777-78. Arguably, then, constitutionally protected speech is grounded in the individual and only extended to the corporation when it acts as a community. When it can be said that all members of the group agree with and would independently advocate the corporate message, then the corporation may speak on behalf of its collective membership. This is merely extrapolating the individualized foundations of free speech to the communal level. When the community acts as would an individual - i.e., cognitively generates an idea which reflects the beliefs of its members, and exercises its free will to distribute its message - then it can be said that the corporation has acted as one entity (natural person). However, a different theory could hold that even though some members did not agree with the message, the corporation nevertheless acted on behalf of all members - including the dissenters. For example, I am a member of the voting community of the United States. Sometimes when I vote, the candidate I vote for does not win. Yet, when the winner acts, she acts on my behalf, as my representative, as well as the representative of those citizens who voted for her. Carrying this analogy to the corporate context, it is the case that when the corporation speaks, it does so on behalf of its members. The community of members includes both those who support the message and those who do not.
79. See Bellotti, 435 U.S. at 777 (rejecting the lower court's holding that only speech directly pertaining to a corporation's business interests is protected).
80. See Mills v. Alabama, 384 U.S. 214, 218 (1966) (noting "practically universal agreement" that the First Amendment was designed to "protect the free discussion of governmental affairs").
81. Bellotti, 435 U.S. at 777.
82. Id. at 777.
83. See Buckley v. Valeo, 424 U.S. 1 (affording First Amendment protection to political speech).
84. See Nixon v. Shrink Missouri Gov't PAC et al., 120 S. Ct. 897 (2000) (articulating a strict scrutiny standard for political speech); United States v. Carolene Prods. Co., 304 U.S. 144 (1938) (stating the rationale behind the strict scrutiny test).
85. Buckley v. Valeo, 424 U.S. 1, 14 (1976) (claiming that "[t]he First Amendment affords the broadest protection to [] political expression in order 'to assure (the) unfettered interchange of ideas for the bringing about of political and social changes desired by the people'") (citing Roth v. U.S. 354 U.S. 476 (1957)).
86. Id. at 25.
87. See Jack B. Sarno, A Natural Law Defense of Buckley v. Valeo, 66 FORDHAM L. REV. 2693, 2702 (1998) (discussing one justification for regulating contributions by restricting political speech).
88. Buckley, 424 U.S. at 26.
89. See id. at 14 (noting the importance of political discussion in the United States).
90. Buckley, 424 U.S. at 14 (citing Roth v. United States, 354 U.S. 476, 484 (1957)).
91. Due to the size of the nation and the increasing number of potential voters, it becomes imperative to use modern modes of communication in order to run an effective campaign. Therefore, money becomes important to a successful campaign as "virtually every means of communicating ideas in today's mass society requires the expenditure of money." Buckley, 424 U.S. at 19. It is with these background realities that the Court examined the affects of the FECA's contribution and expenditure limits.
92. See Buckley, 424 U.S. at 14-15 (discussing the importance of informed choices).
93. See New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964) (expressing when knowledgeable choices are achieved in the political arena).
94. See Buckley, 424 U.S. at 13 (stating that the "critical constitutional questions presented here go not to the basic powers of Congress to legislate in this area, but to whether the specific legislation that Congress has enacted interferes with First Amendment freedoms").
95. As for independent expenditures, Colorado Republican Fed. Campaign Comm. v. Fed. Election Comm'n, 518 U.S. 604, 615 (1996), stands for the proposition that the government cannot limit the ability of individuals and political committees to make independent expenditures not coordinated with a particular candidate.
96. Social justice is perhaps the best synonym for distributive justice because distributive justice deals with what human beings living in a cooperative scheme owe to one another.
97. Rawls writes within the Kantian deontological framework. There are at least three ways we can interpret the deontological argument that is based on rights or duties. First, we can say that the right is prior to the good. Therefore, no argument of social utility can outweigh the primacy of individual rights. Second, we may claim that the deontological argument is concerned with rights and not the maximization of utility. That is, individual rights may not be overridden for increases in social utility. Third, we may contend that rights trump ordinary arguments of utility. That is, there may be a few extreme cases, such as enslaving Superman or his human counterpart, which will result in a huge gain in utility enjoyed by everyone else -where society can void individual rights to realize an immense gain in overall utility. Conversely, ontological theories such a utilitarianism define the good as independent from the right thus allowing society to maximize the good while violating the right.
98. JOHN RAWLS, POLITICAL LIBERALISM XV (1993) (hereinafter POLITICAL LIBERALISM).
99. THEORY, supra note 120, at 3.
100. See id. at 4 (stating that "injustice is tolerable only when it is necessary to avoid an even greater injustice").
101. See id. at 103 (differentiating Rawls' theory from utilitarianism).
102. See id. at 11 (discussing social contract theories).
103. Rawls writes: [T]he primary subject of justice is the basic structure of society, or more exactly, the way in which the major social institutions distribute fundamental rights and duties and determine the division of advantages from social cooperation. By major institutions I understand the political constitution and the principle economic and social arrangements. . . . Taken together as one scheme, the major institutions define men's rights and duties and influence their life prospects, what they can expect to be and how well they can hope to do. Id. at 7.
104. It is important to note that principles of and discussions about justice presuppose competing claims on resources and conflicting interests which result from moderate scarcity and limited benevolence. See, e.g., DAVID HUME, A TREATISE ON HUMAN NATURE (L.A. Selby-Bigge ed., 1951); THEORY, supra note 20, at 126-30; MICHAEL SANDEL, LIBERALISM AND THE LIMITS OF JUSTICE (1998).
105. It is important to note that principles of and discussions about justice presuppose competing claims on resources and conflicting interests which result from moderate scarcity and limited benevolence. See, e.g., DAVID HUME, A TREATISE ON HUMAN NATURE (L.A. Selby- Bigge ed., 1951); THEORY, supra note 20, at 126-30; MICHAEL SANDEL, LIBERALISM AND THE LIMITS OF JUSTICE (1998).
106. It is important to note that principles of and discussions about justice presuppose competing claims on resources and conflicting interests which result from moderate scarcity and limited benevolence. See, e.g., DAVID HUME, A TREATISE ON HUMAN NATURE (L.A. Selby- Bigge ed., 1951); THEORY, supra note 20, at 126-30; MICHAEL SANDEL, LIBERALISM AND THE LIMITS OF JUSTICE (1998).
107. Ronald Dworkin, The Original Position, in READING RAWLS: CRITICAL STUDIES OF A THEORY OF JUSTICE 52 (Norman Daniels ed., 1975).
108. THEORY, supra note 20, at 11.
109. See id. at 12 (claiming that the principles of justice are selected from within the original position).
110. See THOMAS HOBBES, LEVIATHAN Ch. 13 (C.B. Macpherson ed., Penguin Books 1968) (1651) (arguing that the state of nature is a war of all against all); JOHN LOCKE, TWO TREATISES OF GOVERNMENT second Treatise § 4 (Peter Laslett ed., Cambridge University Press 1967) (1689) (claiming that in the state of nature, individuals are in a "state of perfect freedom").
111. See STEPHEN MULHALL & ADAM SWIFT, LIBERALS & COMMUNITARIANS 13-18, 188 (1996) (arguing that Rawls' theory may be viewed as similar to a pre-social state in which individual actors come together and contract out of mutual self-interest).
112. THEORY, supra note 20, at 120.
113. See id. at 520-29 (discussing the conception of society as a mutual endeavor).
114. See id. at 136-42 (articulating the purposes behind and the reasons for employing a veil of ignorance).
115. Id. at 139, 146.
116. Id. at 13.
117. THEORY, supra note 20, at 13, 142-46.
118. Id. at 137. Primary social goods are things that all rational people presumably desire. They include things such as "rights and liberties, powers and opportunities, income and wealth." Id. at 62. Other primary goods exist, which, while not controlled by the basic structure, the basic structure does influence their possession. These goods include: "health and vigor, intelligence and imagination." Id. 112. Id.
119. Id. at 145.
120. Id. 136-42.
121. Dworkin, supra note 100, at 17.
122. This includes her attitude toward risk. While this point has come under heavy criticism from those who maintain that the rational gambler would select principles of utility in the original position, Rawls dismisses this argument. He contends that it is inherently irrational to take risks in the original position. Not only must the gambler abide by the principles selected - even if the gambler comes out on the wrong side of inequality - but the selection occurs once and for all. The original position is not a repeat game. So the crucial question becomes - is it rational to gamble on a one-shot selection? According to Rawls the answer is no. THEORY, supra note 20, at 152-57.
123. The essential concept behind the veil of ignorance is that certain human characteristics are irrelevant in deciding what each is entitled to as a matter of justice.
124. See THEORY, supra note 20, at 139 (the veil of ignorance ensures that contractors have only the same, relevant information at all times).
125. Id. at 136-37.
126. MICHAEL LESSNOFF, SOCIAL CONTRACT 132 (1986).
127. We cannot say that Albert Einstein inherently deserved his superior intellect, nor can we say that John Rawls is inherently deserving of his philosophical abilities. Instead, each was born with undeserved natural assets. Similarly, there are some members of society who lost out in the distribution of natural talents. For instance, some members of society are stricken with physical and emotional disabilities. Because natural talents are arbitrary, Rawls contends that the structure of society must work so that those who by chance acquired natural abilities which society rewards share them with those less fortunate. THEORY, supra note 20, at 12-15.
128. JOHN ROEMER, THEORIES OF DISTRIBUTIVE JUSTICE 175 (1996).
129. By contrast, Rawls uses the original position as an attempt to determine which set of principles people would choose to regulate the basis structure. He concludes that they would agree upon his two principles of justice. The two principles of justice are: (1) First principle Each person is to have an equal right to the most extensive total system of equal basic liberty compatible with a similar system of liberty for all. (2) Second principle Social and economic inequalities are to be arranged so that they are both: (a) to the greatest benefit of the least advantaged . . . and (b) attached to offices and positions open to all under conditions of fair equality of opportunity. THEORY, supra note 20, at 302. The two principles thus regulate different institutions. The first principle logically attaches to the constitution of the basic structure, in the liberal democratic model, while the second principle regulates the economy, job market, and related dimensions of societal life.
130. See ARENDT, supra note 11, at 3 ("[S]peech is what makes man a political being.").
131. Id. at 3.
132. It seems likely that even though free speech will be favored, it will not be absolute. For example it is at least plausible that a Brandenburg incitement test would be adopted. See Brandenburg v. Ohio, 395 U.S. 444 (1969) (setting out the incitement test). What appears certain, however, is that there must be a powerful reason for restricting free speech, and that a restriction on speech must effect all types of speech equally. Specifically, certain types of speech may not be singled out and punished because it advocates unpopular ideas.
133. POLITICAL LIBERALISM, supra note 93, at 261.
134. THEORY, supra note 20, at 63. Rawls asserts that "the denial of equal liberty can be defended only if it is necessary to raise the level of civilization so that in due course these freedoms can be enjoyed." Id. at 152. It may be the case that society reaches a point where people wish to forgo basic liberties in exchange for other, greater benefits. Yet, Rawls' two principles of justice will not allow such an exchange. Imagine a situation where a sick, elderly woman prefers to trade her basic liberty to hold office - which she no longer deems relevant or necessary - for monetary gain. Likewise, a homeless man may be willing to trade in his right to vote, which he cannot exercise anyway, for money that will buy his next meal. While these are completely rational tradeoffs, Rawls' system will not tolerate them. Perhaps, then, we can improve on Rawls' theory by graphing a scheme allowing for the tradeoff between wealth and liberty.
135. THEORY, supra note 20, at 61 (italics added).
136. See id. at 7 (claiming that the primary subject of justice is the basic structure).
137. See Ken Kress, The Seriousness of Harm Thesis for Abnormally Dangerous Activities, in PHILOSOPHICAL FOUNDATIONS OF TORT LAW 293 (David G. Owen ed., 1995) (applying a Rawlsiart analysis to tort law).
138. Here I am assuming that wealthier individuals organize more effectively than those in lower socio-economic classes, can afford to make larger contributions than those in lower socio-economic classes, and at least sometimes favor ideologies different from those preferred by people in the same and lower socio-economic classes. It may also be the case that because policy changes may have greater economic effects on their status, they are more politically active.
139. THEORY, supra note 20, at 176. The choice made under the original position is once and for all. When principles are agreed to, they must be adhered to even if the worst possibility turns out to be the case. See id. If a person has a chance of being in any social position, it makes sense for her to look not at the extremes but at the average positions. If she can create principles that maximize the mean social position, it is rational for her to select them. Jeremy Waldron claims that Rawls is implying - via the use of maximin reasoning -that it is irrational to gamble on principles of justice because the gamble made in the original position occurs once and only once. While it may be rational to gamble in a repeat game, the same strategy does not apply when the gamble is one time only. It is inherently irrational for parties facing uncertainty to gamble in hopes of coming out on the right side of equality. Jeremy Waldron, John Rawls and the Social Minimum, 3 JOURNAL OF APPLIED PHILOSOPHY 21, 25 (1986).
140. See THEORY, supra note 20, at 176 (explaining that social actors who misrepresent their positions do not act in good faith).
141. Id.
142. It may be the case that even under a voucher system in which each person is situated equally and has an equal opportunity to vie for the attention of politicians, people may gather together and donate their vouchers in one large sum. At first blush, one could argue that a voucher system reintroduces inequality at the group as opposed to the individual level. While the dynamics of inequality are complex, a voucher system is still more egalitarian than our current system. Contrast three situations: (1) a single person contributes five thousand dollars (the same amount that all other voting age citizens can give), (2) ten people collectively give five thousand dollars for a total of fifty thousand dollars, (3) a single individual gives fifty thousand dollars. In the first situation the person is equally situated with all other people who similarly allocate their voucher. Because each person has only one vote, the person will receive no greater attention from the politician. In the second, "group" scenario, each person individually is allocated an equal amount of time (for sake of example, one minute of attention), however, because they donate together, the group as a whole receives ten minutes of attention. It may also be the case that the group receives slightly more time, perhaps twenty minutes of total attention from the politician, or two minutes for each member. While this is not equal, because the group has ten total votes it makes sense for the politician to be slightly more receptive to its concerns (there may be a group dynamic at work here). Although this is not perfect, it is more egalitarian than the final scenario in which one person contributes fifty thousand dollars and receives ten minutes of attention. The politicians responsiveness to this contribution is not appropriate. This individual, like the rest of the governed, has only one vote to cast, yet the size of the contribution makes the politician more responsive than normal.
143. See NOZICK, supra note 22, at 51-53 (arguing that no more than a minimal state is legitimate or justifiable).
144. Maximin reasoning presupposes an aversion to risk. Because all actors stand an equal chance of being high or low on the social ladder, they will rationally construct a system that maximizes the benefits to the least well off social position. They select a scheme which implements the best worst consequences. We can postulate a few reasons why maximin strategy is appropriate in the original position. First, people have no knowledge by which to assign probabilities to their eventual social positions. Rawls states that since "knowledge of likelihoods is impossible . . . it is unreasonable not to be skeptical of probabilistic calculations unless there is no other way out, particularly if the decision is a fundamental one that needs to be justified to others." THEORY, supra note 20, at 154. People are unable to put any real credence in probabilistic calculations thus they should not engage in them. Second, because allowing extremely low campaign contributions, or alternately, not allowing individuals to make contributions at all, guarantees a satisfactory minimum for all persons, it is not rational to "take a chance for the sake of a further advantage, especially when it may turn out that he loses much that is important to him." THEORY, supra note 20, at 154. Here Rawls is assuming that a person's conception of the good is such that they are indifferent to anything that they can gain above and beyond what is guaranteed by the minimum. Especially if, in doing so, they run the risk of being made worse off. Third, rational actors will want to avoid unacceptable outcomes. For instance, I would deem it unacceptable to allow unlimited private donations in support of a candidate X if I find myself in a position in which I lack the ability to influence the election of a candidate. This becomes especially troubling when candidate X proposes to alter fundamentally a societal institution to my detriment upon which I rely upon to support my lifestyle. Persons may properly use maximin reasoning to reject outcomes they deem offensive. Insofar as they are obligated to abide by the principles they select - the strains of commitment - and their choice is once and for all, they will choose via maximin reasoning.
145. See THEORY, supra note 20, at 152-53. Rawls draws an analogy between the two principles of justice and maximin reasoning under conditions of uncertainty. He contends that "the two principles are those a person would choose for the design of a society in which his enemy is to assign him his place." Id at 152.
146. Id. at 154.
147. For our purposes, inequality indicates a scenario in which one member of society lacks the financial resources to compete for political influence to the same degree as other, more financially secure individuals.
148. We must notice that those people situated higher on the economic and social ladder may have more free time - due to their economic security - and therefore may be better able to work on behalf of a candidate, party, or organization. However, it also may be the case that those at the top of the economic and social ladder have too many demands on their time to work on behalf of parties, candidates, or organizations. Accordingly, those with less may be in a better position to donate their time.
149. Under the voucher some inequality will exist. However, the inequality under the voucher system is much more bearable than the inequality under the current system. In giving a voucher for a specific amount to each person of voting age, it may be the case that younger voters - ages 18 through 21, for example - are heavily influenced by the voting practices of their parents. If this observation is in fact correct then each parent in a family of five actually has around five thousand dollars (here assuming the value of each voucher is two thousand dollars) to divide between their most preferred candidates, parties, and organizations. This type of inequality is more subtle and perhaps less offensive than the types of inequality that our system of campaign finance currently facilitates. Further, it is conceivable that a voucher system would lead to the creation of a market for the vouchers. For example, if an individual has a strong preference for the outcome of a particular vote, and is willing to purchase vouchers from other voters, it seems likely that some eligible voters would be willing to sell their right to choose how to allocate their voucher to the individual for at least the price of the voucher.
150. Buckley v. Valeo, 424 U.S. 1, 58 (1976). At issue in Buckley was the constitutionality of the FECA. The FECA was passed in the wake of the Watergate scandal in order to remedy the perception of "improper influence" and corruption in the democratic process. Id. at 27. Specifically, the Court concluded that: the provisions of the Act that impose a $1,000 limitation on contributions to a single candidate, § 608(b)(1), a $5,000 limitation on contributions by a political committee to a single candidate, § 608(b)(2), and a $25,000 limitation on total contributions by an individual during any calendar year, § 608(b)(3), are constitutionally valid. These, limitations along with the disclosure provisions constitute the Act's primary weapons against the reality or appearance of improper influence stemming from the dependence of candidates on large campaign contributions. The contribution ceilings thus serve the basic government interest in safeguarding the integrity of the electoral process without directly impinging upon the rights of individual citizens and candidates to engage in political debate and discussion. By contrast, the First Amendment requires the invalidation of the Act's independent expenditure ceiling, § 608(e)(1), its limitation on a candidate's expenditures from his own personal funds, § 608(a), and its ceiling on overall campaign expenditures, § 608(c). These provisions place substantial and direct restrictions on the ability of candidates, citizens and associations to engage in protected political expression, restrictions that the First Amendment cannot tolerate. Id. at 58-59.
151. Wright, supra note 31, at 614.
152. See id. at 631 (noting disparities between wealthy and poor campaign contributors).
153. See Sunstein, supra note 43, at 1390 (articulating the stated proposition).
154. See Rich, supra note 34, at 435.
155. Buckley, 424 U.S. at 48-49. While the Court reasons that government cannot violate the rights of some to increase the (relative) voice of others, I argue that society must take a special interest in those less fortunate. That is, to truly do justice, society must shun the aggregate and examine the plight of the individual.
156. See Buckley, 424 U.S. at 50 ("The Court's decision in Mills v. Alabama (citations omitted), and Miami Herald Publishing Co. v. Tornillo (citations omitted), held that legislative restrictions of advocacy of the election or defeat of political candidates are wholly at odds with the guarantees of the First Amendment.").
157. See Burson v. Freeman, 504 U.S. 191 (1992) (holding that a Tennessee statute that prohibited the display and distribution of campaign materials within one hundred feet of polling places did not violate the First Amendment). Tennessee argued that the statute was enacted to: (1) protect citizens from undue influence, allowing them to vote freely for the candidates of their choice, and (2) protect the integrity of the electoral system. Id. at 198.
158. Reynolds v. Sims, 377 U.S. 533, 565 (1964).
159. See Burson, 504 U.S. at 198 ("This case presents us with a particularly difficult reconciliation: the accommodation of the right to engage in political speech with the right to vote -a right at the heart of our democracy.").
160. Instead of asserting an argument from equality, the Court maintains that "the concept that government may restrict the speech of some elements of our society in order to enhance the relative voices of others is wholly foreign to the First Amendment. . . ." Buckley, 424 U.S. at 48-49.
161. POLITICAL LIBERALISM, supra note 93, at 363.
162. 494 U.S. 652 (1990).
163. This line of reasoning was first explored by the dissenters in Bellotti. At issue in Bellotti was a corporation's ability to make expenditures on political issues that did not materially affect its business interests. The majority concluded that the Massachusetts legislation infringed upon constitutionally protected political speech. The government could prevail only by showing compelling interests. Among the government's proposed compelling interests were: (1) preventing the risk of corruption, and (2) equalizing the voice of the voters. The Court dismissed the corruption argument as unpersuasive. Referenda are held on issues and not candidates. Consequently, the traditional quid pro quo definition of political corruption did not apply to votes about issues and not candidates. Bellotti, 435 U.S. at 790. Additionally, the majority was not persuaded by the equality argument. While the government took the position that wealthy and powerful corporations could use their coffers to "drown out" other, competing points of view, the Court reasoned that there was no record that corporate voices were overwhelming political discussions. Id. at 789. Strikingly, the Court claimed that "corporate advertising may influence the outcome of the vote; this would be its purpose. But the fact that advocacy may persuade the electorate is hardly a reason to suppress it . . . ." Bellotti, 435 U.S. at 790. Without a more substantial showing, the government was unable to overcome the legislation's affects on speech. The dissenters argued that corporations wield more power than ordinary citizens due in large part to the advantages conferred upon them by the state. Id. at 809. Consequently, the state may regulate corporations to ensure that they do not use their extra protections to gain an unfair advantage in the most fundamental arena of democracy - the electoral process. "[T]he interests in protecting a system of freedom of expression [that recognizes the fair value of everyone's basic liberties]. . . are sufficient to justify any incremental curtailment in the volume of expression which the Massachusetts statute might produce." Id. at 821. While only three Justices agreed with this reasoning, there was hope that, perhaps given time, others could be persuaded to adopt a similar position.
164. See Austin, 494 U.S. at 654-55 (stating that the relevant portions of the Act withstood strict scrutiny as narrowly tailored provisions designed to serve a compelling state interest).
165. See Miriam Cytryn, Defining the Specter of Corruption: Austin v. Michigan State Chamber of Commerce, 57 BROOK. L. REV. 903, 904 (1991).
166. See id.
167. Austin, 494 U.S. at 659 (claiming that "state-created advantages not only allow corporations to play a dominant role in the Nation's economy, but also permit them to use 'resources amassed in the economic marketplace' to obtain 'an unfair advantage in the political marketplace'") (citing FEC v. Massachusetts Citizens for Life, Inc., 479 U.S. 238 (1986)).
168. See Cytryn, supra note 159, at 924 (arguing that states grant corporations "perpetual life, limited liability, and special tax treatment").
169. See Austin, 494 U.S. at 659. This reasoning applied even though the Michigan Chamber of Commerce was a nonprofit corporation comprised of about 8000 members, the vast majority of whom are profit based corporations. The Chamber, however, uses its funds to promote political candidates and policies that support the financial interests of (most) of its members. Cytryn, supra note 159, at 915.
170. Austin, 494 U.S. at 660.
171. See Buckley v. Valeo, 424 U.S. 1, 27-28 (1976) (holding that corruption is a compelling state interest). While the Court mentioned that massive corporate contributions may be used to obtain political favors, it refused to extend this reasoning to its discussion of expenditures. Id. at 47.
172. See id. at 26.
173. Austin v. Michigan Chamber of Commerce, 494 U.S. 652, 660 (1990).
174. See id.
175. Id. (quoting Austin, 494 U.S. at 705 (Kennedy, J., dissenting)).
176. See id. at 660 (stating that "[c]orporate wealth can unfairly influence elections").
177. Cytryn, supra note 159, at 936. If, in fact, the majority was not concerned with the corruptive effect of large amounts of money but with an argument in favor of equality, then this decision was a major step in the right direction.
178. Austin, 494 U.S. at 680 (Scalia, J., dissenting).
179. Id. at 684-85 (Scalia, J., dissenting). Justice Scalia reiterated the Buckley reasoning that "the 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 . . . ." Id. (quoting Buckley, 424 U.S. at 48-49).
180. Austin, 494 U.S. at 692 (Scalia, J., dissenting). I disagree with this position. In attempting to reconcile the Rawlsian analysis with the Court's jurisprudence, I will suggest an interpretation of the Bill of Rights that is compatible with allowing the government to restrict the relative ability of some members of society to speak fully, on political issues, in order to facilitate the comparatively equal voice of all people who choose to be politically active. Moreover, the federal government is in the best position to regulate speech in favor of equality, as its institutions affect the lives of all members of society and would seem to be the least cost avoider. It is in the best position to accomplish what I argue is a desired reform at the lowest cost.
181. See id. at 691 (Scalia, J., dissenting).
182. See id. at 684-85 (Scalia, J., dissenting).
183. Justice Kennedy takes the position that a more precise definition of political corruption was offered in FEC v. National Conservative Political Action Comm., 470 U.S. 480 (1985). In FEC, political corruption was defined as "a subversion of the political process whereby '[e]lected officials are influenced to act contrary to their obligations of office by the prospect of financial gain. . . ." Id. at 497; see also Austin, 494 U.S. at 703 (Kennedy, J., dissenting).
184. See Ronald Dworkin, Speech at the University of Iowa College of Law (Nov. 20, 1998) (discussing these ideas during a lecture and a subsequent conversation).
185. For a discussion of the majoritarian premise, see FREEDOM'S LAW, supra note 1, at 15-19.
186. Id.
187. Id. at 25.
188. For my purposes, the partnership model is intuitively appealing as it appears to be at least in part derived from Rawls' A THEORY OF JUSTICE. See THEORY, supra note 20.
189. For a grim look at a non-cooperative scheme, see generally HOBBES, supra note 103.
190. See supra note 143 ("discussing how the voucher system would work").
191. We must recognize that candidates will need to articulate their ideologies to the public in order to attract voucher money. Perhaps, then, each viable candidate can be allotted an amount of free television time to express his or her views.
192. See Ronald Dworkin, Speech at the University of Iowa College of Law (Nov. 20, 1998) (articulating this concern).
193. Someone may even advocate a system that more effectively equalizes the people than the system that I advance. If someone comes forth with such a system, I am all for it.
194. Each citizen also has specified constitutional rights and arguably even certain natural rights which result merely from a shared membership of the human race.
195. See POLITICAL LIBERALISM, supra note 93, at 357.
196. A lexical ordering is a hierarchical ordering of principles in which principle one is greater than principle two which is greater than principle three, etc. Each principle has an absolute weight. To avoid conflicts between the principles, the first principle must either not apply or be fully met before the next principle may be considered. See THEORY, supra note 20, at 42-43.
197. For example, my freedom of speech is dependent upon my freedom from arbitrary arrest. If the police could arrest me for any reason or no reason at all, while behind bars, I lack the proper avenues to disseminate my views to an audience of my peers.
198. POLITICAL LIBERALISM, supra note 93, at 357.
199. See id. at 295.
200. The second principle of justice - the difference principle - allows for economic and social inequalities insofar as the inequalities work for the advantage of the least well off representative person. That is, if the plight of those in the lowest social and economic positions are improved by permitting others to have a greater share, then the inequality is permitted.
201. See POLITICAL LIBERALISM, supra note 93, at 325 (stating that "[t]hose with greater responsibility and wealth can control the course of legislation to their advantage").
202. See id. at 328 (articulating the stated proposition).
203. Id. at 299.
204. POLITICAL LIBERALISM, supra note 93, at 328.
205. Id.
206. See id. at 329.
207. Rawls contends that: [t]he guarantee of fair value for the political liberties is included in the first principle of justice because it is essential in order to establish just legislation and also to make sure that the fair political process specified by the constitution is open to everyone on the basis of rough equality. POLITICAL LIBERALISM, supra note 93, at 330.
208. Id. at 361-62.
209. Id. at 362.