The last best chance for campaign finance reform

Northwestern University Law Review

Volumn 94, Issue 2, 2000, Pages 335-390

  Marshall, William P ^a  

^a NONE

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EID: 0346478425     PISSN: 00293571     EISSN: None     Source Type: Journal    
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References (358)

1. Quoted in JAMES M. MCPHERSON, BATTLE CRY OF FREEDOM: THE CIVIL WAR ERA 761 (1988).
2. David Cole, First Amendment Antitrust: The End of Laissez-Faire in Campaign Finance, 9 YALE L. & POL'Y REV. 236, 243 (1991).
3. The literature devotes considerable attention to the constitutional obstacles, some attention to the political (what will be referred to as the legislative entrenchment) problems, and scattered attention to the predictability concerns. See infra notes 86-116, 20-35, and 36-58. The literature does not discuss the interplay, or the cumulative effect, of these factors.
4. See, e.g., Bipartisan Campaign Reform Act of 1997, S. 25, 105th Cong. §§ 201-41 (calling for new restrictions on "soft money" and foreign contributions); Marlene Arnold Nicholson, Buckley v. Valeo: The Constitutionality of the Federal Election Campaign Act Amendments of 1974, 1977 WISC. L. REV. 323, 345-46 (calling for expenditure limitations).
5. Numerous forms of subsidy have been proposed. See House of Representatives Election Campaign Reform Act of 1997, H.R. 1039, 105th Cong. § 3 (1997) (granting tax credits to individuals making small political contributions); LARRY J. SABATO, PAYING FOR ELECTIONS: THE CAMPAIGN FINANCE THICKET 59-61 (1989) (tax credits); CASS R. SUNSTEIN, DEMOCRACY AND THE PROBLEM OF FREE SPEECH 85 (1993) (free media advertising); Bruce Ackerman, Crediting the Voters: A New Beginning for Campaign Finance, 13 AM. PROSPECT 71 (1993); Edward B. Foley, Equal-Dollars-Per-Voter: A Constitutional Principle of Campaign Finance, 94 COLUM. L. REV. 1204 (1994) (calling for a system where every voter would be given equal financial resources for supporting candidates or initiatives); Richard L. Hasen, Clipping Coupons for Democracy: An Egalitarian/Public Choice Defense of Campaign Finance Vouchers, 84 CAL. L. REV. 1 (1996) (proposing that each voter receive vouchers to fund contributions to candidates or to interest groups in federal elections);
6. Numerous forms of subsidy have been proposed. See House of Representatives Election Campaign Reform Act of 1997, H.R. 1039, 105th Cong. § 3 (1997) (granting tax credits to individuals making small political contributions); LARRY J. SABATO, PAYING FOR ELECTIONS: THE CAMPAIGN FINANCE THICKET 59-61 (1989) (tax credits); CASS R. SUNSTEIN, DEMOCRACY AND THE PROBLEM OF FREE SPEECH 85 (1993) (free media advertising); Bruce Ackerman, Crediting the Voters: A New Beginning for Campaign Finance, 13 AM. PROSPECT 71 (1993); Edward B. Foley, Equal-Dollars-Per-Voter: A Constitutional Principle of Campaign Finance, 94 COLUM. L. REV. 1204 (1994) (calling for a system where every voter would be given equal financial resources for supporting candidates or initiatives); Richard L. Hasen, Clipping Coupons for Democracy: An Egalitarian/Public Choice Defense of Campaign Finance Vouchers, 84 CAL. L. REV. 1 (1996) (proposing that each voter receive vouchers to fund contributions to candidates or to interest groups in federal elections);
7. Numerous forms of subsidy have been proposed. See House of Representatives Election Campaign Reform Act of 1997, H.R. 1039, 105th Cong. § 3 (1997) (granting tax credits to individuals making small political contributions); LARRY J. SABATO, PAYING FOR ELECTIONS: THE CAMPAIGN FINANCE THICKET 59-61 (1989) (tax credits); CASS R. SUNSTEIN, DEMOCRACY AND THE PROBLEM OF FREE SPEECH 85 (1993) (free media advertising); Bruce Ackerman, Crediting the Voters: A New Beginning for Campaign Finance, 13 AM. PROSPECT 71 (1993); Edward B. Foley, Equal-Dollars-Per-Voter: A Constitutional Principle of Campaign Finance, 94 COLUM. L. REV. 1204 (1994) (calling for a system where every voter would be given equal financial resources for supporting candidates or initiatives); Richard L. Hasen, Clipping Coupons for Democracy: An Egalitarian/Public Choice Defense of Campaign Finance Vouchers, 84 CAL. L. REV. 1 (1996) (proposing that each voter receive vouchers to fund contributions to candidates or to interest groups in federal elections);
8. Numerous forms of subsidy have been proposed. See House of Representatives Election Campaign Reform Act of 1997, H.R. 1039, 105th Cong. § 3 (1997) (granting tax credits to individuals making small political contributions); LARRY J. SABATO, PAYING FOR ELECTIONS: THE CAMPAIGN FINANCE THICKET 59-61 (1989) (tax credits); CASS R. SUNSTEIN, DEMOCRACY AND THE PROBLEM OF FREE SPEECH 85 (1993) (free media advertising); Bruce Ackerman, Crediting the Voters: A New Beginning for Campaign Finance, 13 AM. PROSPECT 71 (1993); Edward B. Foley, Equal-Dollars-Per-Voter: A Constitutional Principle of Campaign Finance, 94 COLUM. L. REV. 1204 (1994) (calling for a system where every voter would be given equal financial resources for supporting candidates or initiatives); Richard L. Hasen, Clipping Coupons for Democracy: An Egalitarian/Public Choice Defense of Campaign Finance Vouchers, 84 CAL. L. REV. 1 (1996) (proposing that each voter receive vouchers to fund contributions to candidates or to interest groups in federal elections);
9. Numerous forms of subsidy have been proposed. See House of Representatives Election Campaign Reform Act of 1997, H.R. 1039, 105th Cong. § 3 (1997) (granting tax credits to individuals making small political contributions); LARRY J. SABATO, PAYING FOR ELECTIONS: THE CAMPAIGN FINANCE THICKET 59-61 (1989) (tax credits); CASS R. SUNSTEIN, DEMOCRACY AND THE PROBLEM OF FREE SPEECH 85 (1993) (free media advertising); Bruce Ackerman, Crediting the Voters: A New Beginning for Campaign Finance, 13 AM. PROSPECT 71 (1993); Edward B. Foley, Equal-Dollars-Per-Voter: A Constitutional Principle of Campaign Finance, 94 COLUM. L. REV. 1204 (1994) (calling for a system where every voter would be given equal financial resources for supporting candidates or initiatives); Richard L. Hasen, Clipping Coupons for Democracy: An Egalitarian/Public Choice Defense of Campaign Finance Vouchers, 84 CAL. L. REV. 1 (1996) (proposing that each voter receive vouchers to fund contributions to candidates or to interest groups in federal elections);
10. Jamin Raskin & John Bonifaz, The Constitutional Imperative and Practical Superiority of Democratically Financed Elections, 94 COLUM. L. REV. 1160 (1994) (proposing the total public financing of congressional campaigns); Raskin & Bonifaz, supra, at 1196-97 (proposing that every candidate receive a certain number of minutes of free television and radio advertising on each station in the appropriate media market for primary and general elections);
11. Fred Wertheimer & Susan Weiss Manes, Campaign Finance Reform: A Key to Restoring the Health of Our Democracy, 94 COLUM. L. REV. 1126, 1127 (1994) (calling for substantial public funding and reasonable spending limits for congressional races).
12. See Bradley A. Smith, Faulty Assumptions and Undemocratic Consequences of Campaign Finance Reform, 105 YALE L.J. 1049 (1996) (calling for the repeal of contribution limits); Kathleen M. Sullivan, Political Money and Freedom of Speech, 30 U.C. DAVIS L. REV. 663 (1997) (same).
13. See Bradley A. Smith, Faulty Assumptions and Undemocratic Consequences of Campaign Finance Reform, 105 YALE L.J. 1049 (1996) (calling for the repeal of contribution limits); Kathleen M. Sullivan, Political Money and Freedom of Speech, 30 U.C. DAVIS L. REV. 663 (1997) (same).
14. I should note at this juncture that much of the discussion in this Article will be on "campaign reform" or "election reform," and not merely on "campaign finance reform," although I recognize that most reformers and reform proposals tend to stress money issues. I do so for two reasons. First, as a descriptive matter, money issues are not as removed from other campaign regulation as is generally assumed. Rather, there is often a reciprocal relationship between campaign finance issues and other laws governing the political process. See infra notes 127-36 and accompanying text. Second, as a prescriptive matter, I will attempt to show that the chances for the success of reform proposals may be increased if finance issues are not treated in a vacuum. See infra notes 257-65 and accompanying text.
15. Because of practical concerns, I do not suggest that the financial regulation of presidential campaigns should also be set at the state level, although many of the same arguments would apply to such a proposal. See infra note 282. I also leave open the possibility that reporting and disclosure requirements might be retained at the federal level. See infra text following note 282.
16. Federal Election Campaign Act Amendments of 1974, Pub. L. No. 93-443, 88 Stat. 1263 (codified in part as amended in scattered sections of 2 U.S.C. §§ 431-455 (1994)).
17. The Federal Election Campaign Act was initially passed in 1971, but the 1974 amendments replaced the 1971 system of regulation before most of the provisions took effect. See Bradley A. Smith, The Sirens' Song: Campaign Finance Regulation and the First Amendment, 6 J.L. & POL'Y 1, 23-26 (1997).
18. See 88 Stat. at 1264 (amending 18 U.S.C. § 608(c) (1974) (repealed 1976)).
19. See 88 Stat. at 1264 (amending 18 U.S.C. § 608(b) (1974) (repealed 1976)).
20. See Disclosure of Federal Campaign Funds, 26 U.S.C. §§ 9001-42 (1994).
21. See Presidential Election Campaign Fund Act, 2 U.S.C. §§ 431-437 (1994).
22. See Buckley v. Valeo, 424 U.S. 1, 39-44 (1976) (interpreting the Act's "relative to" language as meaning "express advocacy" in order to save constitutionality).
23. See Wilbur C. Leatherberry, Rethinking Regulation of Independent Expenditures by PACs, 35 CASE W. RES. L. REV. 13, 23 n.55 (1985) (expenditure limits were designed to protect incumbents); Sam Kazman, Note, The Economics of the 1974 Federal Election Campaign Act Amendments, 25 BUFF. L. REV. 519, 533-42 (1976) (commenting that the amendments gave incumbents a competitive advantage); David S. Broder, The "Reform" Will Help Incumbents, WASH. POST, May 28, 1975, at A18.
24. See Wilbur C. Leatherberry, Rethinking Regulation of Independent Expenditures by PACs, 35 CASE W. RES. L. REV. 13, 23 n.55 (1985) (expenditure limits were designed to protect incumbents); Sam Kazman, Note, The Economics of the 1974 Federal Election Campaign Act Amendments, 25 BUFF. L. REV. 519, 533-42 (1976) (commenting that the amendments gave incumbents a competitive advantage); David S. Broder, The "Reform" Will Help Incumbents, WASH. POST, May 28, 1975, at A18.
25. See Wilbur C. Leatherberry, Rethinking Regulation of Independent Expenditures by PACs, 35 CASE W. RES. L. REV. 13, 23 n.55 (1985) (expenditure limits were designed to protect incumbents); Sam Kazman, Note, The Economics of the 1974 Federal Election Campaign Act Amendments, 25 BUFF. L. REV. 519, 533-42 (1976) (commenting that the amendments gave incumbents a competitive advantage); David S. Broder, The "Reform" Will Help Incumbents, WASH. POST, May 28, 1975, at A18.
26. See infra notes 37-39 and accompanying text.
27. See Buckley v. Valeo, 424 U.S. 1 (1976).
28. The activities of the Nixon campaign purportedly ran afoul of the provisions of the Federal Election Campaign Act of 1971.
29. The groups and individuals who challenged the constitutionality of the Act did so, in part, because they believed the legislation created a pro-incumbent bias. See infra notes 21-22.
30. See Leatherberry, supra note 16, at 23 n.55 (1985) ("[i]t was suggested that the low expenditure limits contained in the House bill were designed to protect incumbents"); Kazman, supra note 16 ("FECA Amendments create a monopoly of political incumbency."); Broder, supra note 16, at A18.
31. See Marlene Arnold Nicholson, Campaign Financing and Equal Protection, 26 STAN. L. REV. 815, 848 (1974) ("The major threat to third parties and independent candidates arises out of campaign finance reform limits upon large contributions which would prevent the acquisition of the needed 'seed money' with which to gain popular support."); Smith, supra note 6, at 1073 ("Contribution limits make a serious independent challenge virtually impossible.").
32. Nicholson, supra note 22, at 847 (indicating that the frank is one of the factors that gives an incumbent an edge in an election and suggesting that it either be taken away or granted to the challengers).
33. Michael J. Klarman, Majoritarian Judicial Review: The Entrenchment Problem, 85 GEO. L.J. 491, 498 (1997) ("The desire of representatives to perpetuate their hold on office may induce them to act contrary to the preferences of their constituents on a variety of issues; we might call this the 'agency' problem of representative government or 'legislative entrenchment.'").
34. See Lillian R. BeVier, Campaign Finance Reform: Specious Arguments, Intractable Dilemmas, 94 COLUM. L. REV. 1258, 1278-79 (1994) (suggesting that a "premise of distrust" is appropriate when looking at campaign finance reform due to the conflict of interest); Martin Shapiro, Corruption, Freedom and Equality in Campaign Financing, 18 HOFSTRA L. REV. 385, 390-91 (1989) (indicating that web of government reforms will be woven by the desire of incumbents to retain their seats and noting that there is "never going to be a time when non-incumbents do the weaving, nor can we foresee a time when minor parties will have much say.").
35. See Lillian R. BeVier, Campaign Finance Reform: Specious Arguments, Intractable Dilemmas, 94 COLUM. L. REV. 1258, 1278-79 (1994) (suggesting that a "premise of distrust" is appropriate when looking at campaign finance reform due to the conflict of interest); Martin Shapiro, Corruption, Freedom and Equality in Campaign Financing, 18 HOFSTRA L. REV. 385, 390-91 (1989) (indicating that web of government reforms will be woven by the desire of incumbents to retain their seats and noting that there is "never going to be a time when non-incumbents do the weaving, nor can we foresee a time when minor parties will have much say.").
36. Klarman, supra note 24, at 537.
37. See Lillian R. BeVier, Money and Politics: A Perspective on the First Amendment and Campaign Finance Reform, 73 CAL. L. REV. 1045, 1076 (1985) (indicating that legislators, "given free rein to inhibit political activity, might attempt to restructure the political balance of power so as principally to benefit themselves and their political allies"); Martin Redish & Kirk Kaludis, The Right of Expressive Access in First Amendment Theory: Redistributive Values and the Democratic Dilemma, 93 NW. U. L. REV. 1083 (1999).
38. See Lillian R. BeVier, Money and Politics: A Perspective on the First Amendment and Campaign Finance Reform, 73 CAL. L. REV. 1045, 1076 (1985) (indicating that legislators, "given free rein to inhibit political activity, might attempt to restructure the political balance of power so as principally to benefit themselves and their political allies"); Martin Redish & Kirk Kaludis, The Right of Expressive Access in First Amendment Theory: Redistributive Values and the Democratic Dilemma, 93 NW. U. L. REV. 1083 (1999).
39. See Fred Wertheimer & Susan Weiss Manes, Campaign Finance Reform: A Key to Restoring the Health of Our Democracy, 94 COLUM. L. REV. 1126, 1147 (1994) (stating that the 1991-92 election cycle generated soft-money contributions of $49.6 million for the Republicans and $35.3 million for the Democrats); Common Cause, PAC & Soft Money Contributions by Party (1997) (indicating an increase in PAC contributions to Republicans and a decrease in contributions to Democrats between the 1993-94 and the 1995-96 election cycles).
40. See Fred Wertheimer & Susan Weiss Manes, Campaign Finance Reform: A Key to Restoring the Health of Our Democracy, 94 COLUM. L. REV. 1126, 1147 (1994) (stating that the 1991-92 election cycle generated soft-money contributions of $49.6 million for the Republicans and $35.3 million for the Democrats); Common Cause, PAC & Soft Money Contributions by Party (1997) (indicating an increase in PAC contributions to Republicans and a decrease in contributions to Democrats between the 1993-94 and the 1995-96 election cycles).
41. See Helen Dewar & Guy Gugliotta, In Campaign Finance, One Party's 'Level Playing Field' Is Another's Shaky Ground, WASH. POST, Apr. 7, 1997, at A06 ("Democrats believe out-of-state money is a must for them to compete in sparsely populated states and congressional districts where most of the available money is Republican"); Curtis Gans, Common Gridlock, NEW DEMOCRAT, May 1993, at 16 ("The idea of restricting out-of-state and out-of-district contributions emanates from the Republican Party, which has an enormous advantage among $50-$250 contributors.").
42. See Helen Dewar & Guy Gugliotta, In Campaign Finance, One Party's 'Level Playing Field' Is Another's Shaky Ground, WASH. POST, Apr. 7, 1997, at A06 ("Democrats believe out-of-state money is a must for them to compete in sparsely populated states and congressional districts where most of the available money is Republican"); Curtis Gans, Common Gridlock, NEW DEMOCRAT, May 1993, at 16 ("The idea of restricting out-of-state and out-of-district contributions emanates from the Republican Party, which has an enormous advantage among $50-$250 contributors.").
43. Maxwell L. Stearns, The Public Choice Case Against the Item Veto, 49 WASH. & LEE L. REV. 385, 399 (1992) (stating that according to public choice theory "[a]ll players in the legislative arena are assumed to be rational self-interest maximizers."); Lisa L. Tharpe, Analysis of the Political Dynamics Surrounding the Enactment of the 1993 Family and Medical Leave Act, 47 EMORY L.J. 379, 383 (1998) (discussing how public choice theory "view[s] players in the legislative process as rational self-interest maximizes."); see also Daniel A. Farber & Philip P. Frickey, The Jurisprudence of Public Choice, 65 TEX. L. REV. 873 (1987) (discussing public choice theory generally).
44. Maxwell L. Stearns, The Public Choice Case Against the Item Veto, 49 WASH. & LEE L. REV. 385, 399 (1992) (stating that according to public choice theory "[a]ll players in the legislative arena are assumed to be rational self-interest maximizers."); Lisa L. Tharpe, Analysis of the Political Dynamics Surrounding the Enactment of the 1993 Family and Medical Leave Act, 47 EMORY L.J. 379, 383 (1998) (discussing how public choice theory "view[s] players in the legislative process as rational self-interest maximizes."); see also Daniel A. Farber & Philip P. Frickey, The Jurisprudence of Public Choice, 65 TEX. L. REV. 873 (1987) (discussing public choice theory generally).
45. Maxwell L. Stearns, The Public Choice Case Against the Item Veto, 49 WASH. & LEE L. REV. 385, 399 (1992) (stating that according to public choice theory "[a]ll players in the legislative arena are assumed to be rational self-interest maximizers."); Lisa L. Tharpe, Analysis of the Political Dynamics Surrounding the Enactment of the 1993 Family and Medical Leave Act, 47 EMORY L.J. 379, 383 (1998) (discussing how public choice theory "view[s] players in the legislative process as rational self-interest maximizes."); see also Daniel A. Farber & Philip P. Frickey, The Jurisprudence of Public Choice, 65 TEX. L. REV. 873 (1987) (discussing public choice theory generally).
46. See Stearns, supra note 30, at 400 (indicating that legislators will provide legislative benefits as a way of obtaining their primary goal of re-election). The fact that the desire to be reelected may trump conviction has been dramatically demonstrated in the case of term limits. See Jeff Jacoby, Term-Limit Turncoats, BOSTON GLOBE, Jan. 21, 1999, at A15 (noting federal politicians who had originally run on a commitment to term limits and later changed their minds after enjoying the benefits of incumbency).
47. See Mary Leonard, Citizens to the Rescue? Support for Full Public Financing of Campaigns is at its Highest Point Since Watergate, BOSTON GLOBE, Mar. 16, 1997, at D1; Poll Presented as Evidence Public is Interested in Campaign Finance Reform, WHITE HOUSE BULL., June 6, 1997 (60% believe campaign finance reform should be a high priority and support for specific reforms ranged from 47% to 85%); but see Bradley A. Smith, A Most Uncommon Cause: Some Thoughts on Campaign Reform and a Response to Professor Paul, 30 CONN. L. REV. 831, 833-36 (1998) ("there is increasing evidence that the public doesn't much care about campaign finance reform.").
48. See Mary Leonard, Citizens to the Rescue? Support for Full Public Financing of Campaigns is at its Highest Point Since Watergate, BOSTON GLOBE, Mar. 16, 1997, at D1; Poll Presented as Evidence Public is Interested in Campaign Finance Reform, WHITE HOUSE BULL., June 6, 1997 (60% believe campaign finance reform should be a high priority and support for specific reforms ranged from 47% to 85%); but see Bradley A. Smith, A Most Uncommon Cause: Some Thoughts on Campaign Reform and a Response to Professor Paul, 30 CONN. L. REV. 831, 833-36 (1998) ("there is increasing evidence that the public doesn't much care about campaign finance reform.").
49. See Mary Leonard, Citizens to the Rescue? Support for Full Public Financing of Campaigns is at its Highest Point Since Watergate, BOSTON GLOBE, Mar. 16, 1997, at D1; Poll Presented as Evidence Public is Interested in Campaign Finance Reform, WHITE HOUSE BULL., June 6, 1997 (60% believe campaign finance reform should be a high priority and support for specific reforms ranged from 47% to 85%); but see Bradley A. Smith, A Most Uncommon Cause: Some Thoughts on Campaign Reform and a Response to Professor Paul, 30 CONN. L. REV. 831, 833-36 (1998) ("there is increasing evidence that the public doesn't much care about campaign finance reform.").
50. See Mike Dorning, Sen. Feingold Joyous, But Squeaker Win Might Not Aid Campaign for Reform, CHI. TRIB., Nov. 5, 1998, at A18 (indicating that, although the media focused on Feingold's self-imposed limits on campaign spending, "there is little evidence that his cause resonated with Wisconsin voters" - voters were more interested in the issues of "education, Social Security, and Medicare").
51. See Daniel H. Lowenstein, Political Bribery and the Intermediate Theory of Politics, 32 UCLA L. REV. 784, 826-27 (1985) (indicating that it is "difficult to discover or assemble direct proof" of the existence of undue influence).
52. Obviously there could be exceptions. An incumbent may support a reform proposal if it helps her party even if it may harm her individually. Also, an incumbent who is perceived as a champion of reform may hesitate before jumping off the reform bandwagon in order to avoid a charge of flip-flopping or abandonment of principles.
53. See Michael J. Malbin, Looking Back at the Future of Campaign Finance Reform: Interest Groups and American Elections, in MONEY AND POLITICS IN THE UNITED STATES: FINANCING ELECTIONS IN THE 1980s, at 232, 238-43 (Michael J. Malbin ed., 1984) (discussing unintended consequences of campaign finance legislation); Sullivan, supra note 6, at 687 (same); see also Lillian R. BeVier, Money and Politics: A Perspective on the First Amendment and Campaign Finance Reform, 73 CAL. L. REV. 1045, 1079-80 (1985) (citing examples of how reforms have failed to achieve their goals); Cass R. Sunstein, Political Equality and Unintended Consequences, 94 COLUM. L. REV. 1390, 1400-03 (1994). Professor Sunstein's use of the term "unintended consequences" differs from its use here in the sense that the consequences he describes are not only those that are unforeseen by the reformers who sought their passage, but are also those laws that are the product of legislators' attempts to preserve their own interests - the problem referred to in this article as "legislative entrenchment."
54. See Michael J. Malbin, Looking Back at the Future of Campaign Finance Reform: Interest Groups and American Elections, in MONEY AND POLITICS IN THE UNITED STATES: FINANCING ELECTIONS IN THE 1980s, at 232, 238-43 (Michael J. Malbin ed., 1984) (discussing unintended consequences of campaign finance legislation); Sullivan, supra note 6, at 687 (same); see also Lillian R. BeVier, Money and Politics: A Perspective on the First Amendment and Campaign Finance Reform, 73 CAL. L. REV. 1045, 1079-80 (1985) (citing examples of how reforms have failed to achieve their goals); Cass R. Sunstein, Political Equality and Unintended Consequences, 94 COLUM. L. REV. 1390, 1400-03 (1994). Professor Sunstein's use of the term "unintended consequences" differs from its use here in the sense that the consequences he describes are not only those that are unforeseen by the reformers who sought their passage, but are also those laws that are the product of legislators' attempts to preserve their own interests - the problem referred to in this article as "legislative entrenchment."
55. See Michael J. Malbin, Looking Back at the Future of Campaign Finance Reform: Interest Groups and American Elections, in MONEY AND POLITICS IN THE UNITED STATES: FINANCING ELECTIONS IN THE 1980s, at 232, 238-43 (Michael J. Malbin ed., 1984) (discussing unintended consequences of campaign finance legislation); Sullivan, supra note 6, at 687 (same); see also Lillian R. BeVier, Money and Politics: A Perspective on the First Amendment and Campaign Finance Reform, 73 CAL. L. REV. 1045, 1079-80 (1985) (citing examples of how reforms have failed to achieve their goals); Cass R. Sunstein, Political Equality and Unintended Consequences, 94 COLUM. L. REV. 1390, 1400-03 (1994). Professor Sunstein's use of the term "unintended consequences" differs from its use here in the sense that the consequences he describes are not only those that are unforeseen by the reformers who sought their passage, but are also those laws that are the product of legislators' attempts to preserve their own interests - the problem referred to in this article as "legislative entrenchment."
56. The harms created by eliminating grassroots activities will be discussed infra notes 181-199 and accompanying text.
57. See Charles K. Atkin, Mass Media Information Campaign Effectiveness, in PUBLIC COMMUNICATION CAMPAIGNS 266 (Ronald E. Rice & William J. Daisley eds., 1990). This is not to deny that grassroots activities can be effectively combined with a free-media strategy to accomplish short-term goals. A grassroots event may, for example, be extremely useful (and potentially cost-efficient) if it generates substantial media coverage.
58. See, e.g., DANIEL HAYS LOWENSTEIN, ELECTION LAW: CASES AND MATERIALS 536 ("the volunteer may not be accurately reflecting the views of the candidate").
59. Gregory P. Magarian, Note, Fighting Exclusion from Televised Presidential Debates: Minor-Party Candidates' Standing to Challenge Sponsoring Organizations' Tax-Exempt Status, 90 MICH. L. REV. 838, 875-76 (1992) (stating that mass media advertising is the most efficient way of communicating with voters).
60. See L. Patrick Devlin, Political Commercials in American Presidential Elections, in POLITICAL ADVERTISING IN WESTERN DEMOCRACIES 186, 190 (Lynda Kee Kaid & Christina Holtz-Bacha eds., 1995) (indicating that 75% of a candidates budget goes into television advertising); Jeff Mayers & Ron Seely, TV is Powerful Campaign Tool, WIS. ST. J., Oct. 2, 1994, at 1A (quoting a campaign advisor who urged candidates to spend between "eight and nine out of every ten dollars" on television ads).
61. See L. Patrick Devlin, Political Commercials in American Presidential Elections, in POLITICAL ADVERTISING IN WESTERN DEMOCRACIES 186, 190 (Lynda Kee Kaid & Christina Holtz-Bacha eds., 1995) (indicating that 75% of a candidates budget goes into television advertising); Jeff Mayers & Ron Seely, TV is Powerful Campaign Tool, WIS. ST. J., Oct. 2, 1994, at 1A (quoting a campaign advisor who urged candidates to spend between "eight and nine out of every ten dollars" on television ads).
62. See Anthony Corrado, Campaign Giving, Spending and "Soft Money," 6 J.L. & POL'Y 45, 46 (1997) (noting that because they wanted to maximize the amount of money spent on TV ads, the 1976 presidential campaigns reduced their spending on traditional paraphernalia and grassroots activities).
63. 11 C.F.R., Section 100.7(b) (1999); HERBERT E. ALEXANDER & ANTHONY CORRADO, FINANCING THE 1992 ELECTION 148 (1995). The law underlying the "soft money" loophole is technical. FEC regulations mandate that political expenditures by parties benefiting both federal and state candidates must be paid for in accordance with a formula that sets forth a soft money/hard money split.
64. See Debra Burke, Twenty Years After the Federal Election Campaign Act Amendments of 1974: Look Who's Running Now, 99 DICK. L. REV. 357, 376 (1995) (defining the channeling of funds into federal elections through soft money as the "soft money loophole"); Anthony Corrado, Giving, Spending and "Soft Money," 6 J.L. & POL'Y 45, 46-47 (1997) (defining soft money as funds that can be used for "party building" and "get out the vote activities").
65. See Debra Burke, Twenty Years After the Federal Election Campaign Act Amendments of 1974: Look Who's Running Now, 99 DICK. L. REV. 357, 376 (1995) (defining the channeling of funds into federal elections through soft money as the "soft money loophole"); Anthony Corrado, Giving, Spending and "Soft Money," 6 J.L. & POL'Y 45, 46-47 (1997) (defining soft money as funds that can be used for "party building" and "get out the vote activities").
66. Brent A. Fewell, Awash in Soft Money and Political Corruption: The Need for Campaign Finance Reform, 36 DUQ. L. REV. 107, 110-21 (1997) (listing some of the excesses).
67. Sullivan, supra note 6, at 687-88 (indicating that contribution limits led to the rise of PACs, proliferation of soft money, and the growth of independent expenditures).
68. See MICHAEL J. MALBIN & THOMAS L. GAIS, THE DAY AFTER REFORM: SOBERING CAMPAIGN FINANCE LESSONS FROM THE AMERICAN STATES (1998).
69. This reportedly occurred in the special House election to replace Representative Walter Capps. See Lou Cannon, Single-Issue Ads Driving California Race; House Hopefuls Vie to be Heard Above Big-Money Media Onslaughts, WASH. POST, Feb. 21, 1998, at A4 ("the candidates' home-town messages have been overshadowed by campaigns waged by national single-issue groups"); cf. Phil Brinkman, Feingold Wins: Neuman's Loss Called Victory for Campaign Finance Reform, WIS, ST. J., Nov. 4, 1998, at 1A (indicating that Feingold asked several interest groups to stop sponsoring advertisements on his behalf).
70. This reportedly occurred in the special House election to replace Representative Walter Capps. See Lou Cannon, Single-Issue Ads Driving California Race; House Hopefuls Vie to be Heard Above Big-Money Media Onslaughts, WASH. POST, Feb. 21, 1998, at A4 ("the candidates' home-town messages have been overshadowed by campaigns waged by national single-issue groups"); cf. Phil Brinkman, Feingold Wins: Neuman's Loss Called Victory for Campaign Finance Reform, WIS, ST. J., Nov. 4, 1998, at 1A (indicating that Feingold asked several interest groups to stop sponsoring advertisements on his behalf).
71. See Vincent Blasi, Spending Limits and the Squandering of Candidates' Time, 6 J.L. & POL'Y 123, 124 (1997) (indicating that contribution limits and the lack of expenditure limits force candidates to raise money "in a more time consuming manner").
72. See Vincent Blasi, Free Speech and the Widening Gyre of Fund-Raising: Why Campaign Spending Limits May Not Violate the First Amendment After All, 94 COLUM. L. REV. 1281, 1282-83 (1994) (stating that the "quality of representation has to suffer when legislators continually concerned about re-election are not able to spend the greater part of their workday on matters of constituent service, information gathering, political and policy analysis, debating and compromising with fellow representatives, and the public dissemination of views"). In addition, Blasi states that 47.5% of congressional staff members saw a significant reduction in their bosses' time spent on legislative work due to fund-raising. Id. at 1283, n.6 (citing Peter Lindstrom, Center for Responsive Politics, Congress Speaks: A Survey of the 100th Congress 80 (1988)); Jain Raskin & John Bonifaz, The Constitutional Imperative and Practical Superiority of Democratically Financed Elections, 94 COLUM. L. REV. 1160, 1188 (1994) (quoting a former congressman as saying: "Eighty percent of my time, 80 percent of my staffs time, 80 percent of my events and meetings were fund raisers. Rather than go to a senior center, I would go to a party where I could raise $3,000 or $4,000.").
73. See Vincent Blasi, Free Speech and the Widening Gyre of Fund-Raising: Why Campaign Spending Limits May Not Violate the First Amendment After All, 94 COLUM. L. REV. 1281, 1282-83 (1994) (stating that the "quality of representation has to suffer when legislators continually concerned about re-election are not able to spend the greater part of their workday on matters of constituent service, information gathering, political and policy analysis, debating and compromising with fellow representatives, and the public dissemination of views"). In addition, Blasi states that 47.5% of congressional staff members saw a significant reduction in their bosses' time spent on legislative work due to fund-raising. Id. at 1283, n.6 (citing Peter Lindstrom, Center for Responsive Politics, Congress Speaks: A Survey of the 100th Congress 80 (1988)); Jain Raskin & John Bonifaz, The Constitutional Imperative and Practical Superiority of Democratically Financed Elections, 94 COLUM. L. REV. 1160, 1188 (1994) (quoting a former congressman as saying: "Eighty percent of my time, 80 percent of my staffs time, 80 percent of my events and meetings were fund raisers. Rather than go to a senior center, I would go to a party where I could raise $3,000 or $4,000.").
74. Richard L. Hasen, Clipping Coupons for Democracy: An Egalitarian/Public Choice Defense of Campaign Finance Vouchers, 84 CAL. L. REV. 1, 19-20 (1996) (indicating that those who do the bundling have become "the new fat cats of American campaign finance.") (quoting Frank J. Sorauf, INSIDE CAMPAIGN FINANCE: MYTHS AND REALITIES 126 (1992)); Geoffrey M. Wardle, Political Contributions and Conduits After Charles Keating and Emily's List: An Incremental Approach to Reforming Federal Campaign Finance, 46 CASE W. RES. L. REV. 531, 558-63 (1996) (discussing how bundling has been used as a way to increase an individual's or group's influence without violating contribution limits).
75. Richard L. Hasen, Clipping Coupons for Democracy: An Egalitarian/Public Choice Defense of Campaign Finance Vouchers, 84 CAL. L. REV. 1, 19-20 (1996) (indicating that those who do the bundling have become "the new fat cats of American campaign finance.") (quoting Frank J. Sorauf, INSIDE CAMPAIGN FINANCE: MYTHS AND REALITIES 126 (1992)); Geoffrey M. Wardle, Political Contributions and Conduits After Charles Keating and Emily's List: An Incremental Approach to Reforming Federal Campaign Finance, 46 CASE W. RES. L. REV. 531, 558-63 (1996) (discussing how bundling has been used as a way to increase an individual's or group's influence without violating contribution limits).
76. See Buckley v. Valeo, 424 U.S. 1, 25-6 (1976).
77. See Sullivan, supra note 6, at 686 (discussing how challengers are more dependent on parties for funding and how limits help entrench incumbents).
78. See ALEXANDER & CORRADO, supra note 43, at 202-03 ("[P]arty money was a particularly important source of challenger funding in the 1992 election cycle." For House challengers, parties accounted for 11% of the general election funds spent compared to 3% for incumbents); MALBIN & GAIS, supra note 47, at 152 ("[P]olitical parties are the only givers that consistently do much better than random for nonincumbents (challengers and open-seat candidates).").
79. Tax law is another area in which unpredicted results appear to play a major role.
80. Arguably, the law of unintended consequences has one silver lining. If it is true that elected officials will be pre-disposed to pass campaign laws that are primarily to their own benefit, the law of unintended consequences may frustrate their efforts. Of course, the law could just as easily work in the other direction.
81. See MALBIN & GAIS, supra note 47; Samuel Issacharoff & Pamela S. Karlan, The Hydraulics of Campaign Finance Reform, 77 TEX. L. REV. 1705 (1999).
82. Indeed, the very fact of regulation may lead to counterproductive results. Compliance costs require additional infusions of campaign cash, thus detracting from the goal of minimizing wealth advantages. Regulatory enforcement for what may be technical violations of campaign finance, in turn, may "criminalize" politics to such a degree that voters may become even more alienated from the system and able, qualified candidates are deterred from running. See David Grann, Prosecutorial Indiscretion: Espy and the Criminalization of Politics, NEW REPUBLIC, Feb. 2, 1998, at 19 (discussing how the new ethics laws "have enabled politicians to use the law not as a means of justice but as a means of destroying one another" and, as a result, have increased voter cynicism); Bradley A. Smith, The Sirens' Song: Campaign Finance Regulation and the First Amendment, 6 J.L. & POL'Y 1, 27 (1997).
83. Indeed, the very fact of regulation may lead to counterproductive results. Compliance costs require additional infusions of campaign cash, thus detracting from the goal of minimizing wealth advantages. Regulatory enforcement for what may be technical violations of campaign finance, in turn, may "criminalize" politics to such a degree that voters may become even more alienated from the system and able, qualified candidates are deterred from running. See David Grann, Prosecutorial Indiscretion: Espy and the Criminalization of Politics, NEW REPUBLIC, Feb. 2, 1998, at 19 (discussing how the new ethics laws "have enabled politicians to use the law not as a means of justice but as a means of destroying one another" and, as a result, have increased voter cynicism); Bradley A. Smith, The Sirens' Song: Campaign Finance Regulation and the First Amendment, 6 J.L. & POL'Y 1, 27 (1997).
84. See infra notes 117-23 and accompanying text (discussing the relationship of unintended consequences and the First Amendment).
85. Justice Kennedy's dissent in Nixon v. Shrink Missouri Government PAC, No. 98-963, 2000 WL 48424 (U.S. Jan. 24, 2000), expressly acknowledges this point. As he stated, "The melancholy history of campaign finance in Buckley's wake shows what can happen when [courts] intervene in the dynamics of speech and expression by inventing an artificial scheme of [their] own." Id. at 18 (Kennedy, J., dissenting).
86. Buckley v. Valeo, 424 U.S. 1, 14 (1976).
87. See id. See also Nixon v. Shrink Missouri Government PAC, No. 98-963, 2000 WL 48424 (U.S. Jan. 24, 2000) (stating that the First Amendment "has its fullest and most urgent application precisely to the conduct of campaigns for political office" (citation omitted)). Id. at *6.
88. Plaintiffs included, for example, the American Conservative Union, and the American Civil Liberties Union as well as conservative Senator, James Buckley, and liberal ex-Senator and Presidential candidate, Eugene McCarthy. See id.
89. As Burt Neuborne, one of the plaintiffs' key lawyers and now a leading campaign reformer explains, [w]hat united the various challengers was a belief that Congress' comprehensive regulations would make it more difficult for challengers to defeat incumbents and for minor parties to challenge the hegemony of the two major parties. (The ACLU, the sole nonpartisan challenger shared this concern but was most interested in the First Amendment implications of disclosure rules and contribution and spending limits.) In short, the challengers argued that the version of campaign reform before the Court in Buckley would have had the effect of protecting the 'ins' from serious challenge by the 'outs.' Burt Neuborne, Campaign Finance Reform and the Constitution: A Critical Look at Buckley v. Valeo (Brennan Center for Justice 1997).
90. The plaintiffs also raised a successful Appointments Clause challenge to the constitutionality of the Federal Election Commission. See 424 U.S. at 109-43.
91. Congress clearly understood that the Act could be vulnerable to constitutional attack and had, therefore, provided for expedited review so that the constitutional issues could be resolved before the 1976 elections.
92. 424 U.S. 1 (1976).
93. Id. at 68.
94. Id. at 66 (citing NAACP v. Alabama, 357 U.S. 449 (1958)).
95. Id. at 66-68. Additionally, the Court concluded that these interests prevailed over the first amendment claim that a blanket exemption from the reporting and disclosure requirements should be created for minor parties. Id. at 72-74. The Court eventually carved out an exception for political parties that had historically been the target of government and private harassment. See Brown v. Socialist Workers '74 Campaign Comm., 459 U.S. 87 (1982).
96. 424 U.S. at 98-99.
97. 424 U.S. at 86-109.
98. J. Skelly Wright, Politics and the Constitution: Is Money Speech?, 85 YALE L.J. 1001, 1006 (1976).
99. Buckley v. Valeo, 519 F.2d 821, 840 (1975). See United States v. O'Brien, 391 U.S. 367, 376-77 (1968) ("[W]hen 'speech' and 'nonspeech' elements are combined in the same course of conduct, a sufficiently important governmental interest in regulating the nonspeech element can justify incidental limitations on First Amendment freedoms.").
100. The Court also rejected the argument that the restrictions should be viewed only as reasonable time, place, or manner regulations, a characterization which if adopted, would again lead to the use of intermediate rather than strict scrutiny. The difference between the campaign restrictions and time place and manner restrictions, according to the Court, was that the former "impose direct quantity restrictions on political communication and association . . . in addition to any reasonable time, place, and manner regulations otherwise imposed." 424 U.S. at 18 (emphasis added).
101. "[T]his Court has never suggested that the dependence of a communication on the expenditure of money operates itself to introduce a nonspeech element or to reduce the exacting scrutiny required by the First Amendment." 424 U.S. at 16.
102. The Buckley Court was skeptical as to whether the expenditure limitations could even survive intermediate scrutiny on the grounds that the government's interest in restricting expenditures involved suppressing communication. 424 U.S. at 17.
103. 424 U.S. at 39-59.
104. Id.
105. 424 U.S. at 45, 47-49.
106. The Court recognized that the anti-corruption and appearance of corruption rationales provided some support for the expenditure limitations. For example, it recognized that a person making allegedly independent expenditures and a candidate could conceivably enter into an improper quid pro quo relationship in which the expenditures would be nothing more than "disguised contributions." The Court believed, however, that the fact that the independent expenditures could not be coordinated with the candidate or his agent would minimize this concern. 424 U.S. at 46-47. The accuracy of the Court's observation is doubtful. Candidate are well aware, and often most appreciative, of those who expend resources on their behalf, even when the expenditures are not coordinated.
107. 424 U.S. at 48-49.
108. 424 U.S. at 20-21.
109. 424 U.S. at 20-21.
110. 424 U.S. at 26-27.
111. Justice Thomas's recent assertion in Nixon v. Shrink Missouri Government PAC, No. 98-963, 2000 WL 48424 (Jan. 24, 2000), that "[t]he analytic foundation of Buckley . . . was tenuous from the very beginning and has only continued to erode in the intervening years" may fairly express the views of all sides to the campaign reform debate. Id. at *21 (Thomas, J., dissenting). The difference is that some, including Justice Thomas, would argue that the incoherence in the opinion should be resolved to prohibit more campaign regulation under the First Amendment, while others would contend that the ambiguities should be resolved to allow more regulation. As Kathleen Sullivan has argued, the mixed results in Buckley seem to be as much attempts to compromise between competing interests as they are products of the application of legal principles. Sullivan, supra note 6, at 667. The Shrink Missouri opinion does nothing to dispel Dean Sullivan's conclusion.
112. See SUNSTEIN, supra note 5, at 97-98 (criticizing the Court's rejection of equality as justification for campaign finance reform); Nicholson, supra note 4, at 327-40 (arguing in favor of giving great weight to the equalization rational).
113. See Buckley, 424 U.S. at 288 (Marshall, J., concurring in part and dissenting in part) (opining that wealthy candidates may have an advantage over the average candidate and allowing this discrepancy would result in public offices that are the exclusive domain of the wealthy); James G. Wilson, Noam Chomsky and Judicial Review, 44 CLEV. ST. L. REV. 439, 465 (1996) (criticizing the Buckley Court for giving "rich individuals a perpetual advantage in elections").
114. See David A. Strauss, Corruption, Equality, and Campaign Finance Reform, 94 COLUM. L. REV. 1369, 1382-85 (1994) (arguing those who have money should not be allowed to exert greater influence over the political process through the strength of their contributions);
115. Cass R. Sunstein, Political Equality and Unintended Consequences, 94 COLUM. L. REV. 1390, 1392 (1994) (listing political equality as a justification for campaign finance reform: "The 'one person-one vote' rule exemplifies the commitment to political equality. Limits on campaign expenditures are continuous with that rule.").
116. The Court's rejection of this communitarian rationale is critiqued in Jamin Raskin & John Bonifaz, Equal Protection and the Wealth Primary, 11 YALE L. & POL'Y REV. 273, 323 (1993).
117. Daniel D. Polsby, Buckley v. Valeo: The Special Nature of Political Speech, 1976 SUP. CT. REV. 1, 26-31 (arguing that "the court made a mistake in allowing expenditure ceiling to ride in on the coattails of public financing").
118. See D. Bruce LaPierre, Raising a New First Amendment Hurdle for Campaign Finance Reform, 76 WASH. U. L. Q. 217, 225 (1998) (criticizing Buckley for permitting "Congress to limit political contributions without any evidence that contributions in any particular amounts in excess of $1000 caused the harms, corruption, or the appearance of corruption, that inspired the restriction" (emphasis added)). LaPierre contends that this aspect of the Court's holding creates "a risk that speculation about campaign finance problems might be sufficient to justify other restrictions on political speech and association." Id. at 226.
119. 424 U.S. at 14.
120. See Sullivan, supra note 6, at 666 ("both contributions and expenditures may equally express political opinions").
121. See id. (citing Colorado Republican Fed. Campaign Comm. v. FEC, 518 U.S. 604, 638 (1996) (Thomas, J., concurring in part and dissenting in part) ("Whether an individual donates money to a candidate or group who will use it to promote the candidate or whether the individual spends the money to promote the candidate himself, the individual seeks to engage in political expression and to associate with like-minded persons. A contribution is simply an indirect expenditure.").
122. Burt Neuborne, The Supreme Court and Free Speech: Love and a Question, 42 ST. LOUIS L.J. 789, 796 (1998).
123. See id. at 797 (stating that with regard to contributions and expenditures, there is not "much difference between the real world potential for corruption posed by each").
124. See Burt Neuborne, Toward a Democracy-Centered Reading of the First Amendment, 93 NW. U. L. REV. 1055, 1056 (1999) ("Given the hydraulic pressures to raise and spend money on contested political campaigns, the juxtaposition of unlimited demand and constricted supply creates a regulatory regime that is under constant siege . . . .").
125. See Neubome, supra note 64, at 9 ("if the Court was right in treating the spending of money as the indispensable fuel for political speech, it should not matter whether the money is in the form of an expenditure or in the form of a contribution that makes the expenditure possible").
126. See Polsby, supra note 91, at 30-31 (1976) (arguing that the Court's decision to uphold conditional expenditure limitations was "contrary to the fundamental logic of the bulk of the decision").
127. The precarious state of the continued vitality of Buckley's upholding of contribution limits was confirmed in Nixon v. Shrink Missouri Government PAC, No. 98-963, 2000 WL 48424 (U.S. Jan. 24, 2000), the case addressing the constitutionality of certain Missouri state contribution limitations. Although the Court upheld the contribution limitations at issue in that case as consistent with the Buckley opinion, the Court went out of its way to indicate that it was avoiding the question of whether Buckley's holding on contribution limits should be overruled. The Court claimed that it did not need to reach that issue, because the challengers to the Missouri statute had not expressly asked them to overrule Buckley. The judicial restraint exercised is notable. Compare Employment Division v. Smith, 494 U.S. 872 (1990), in which the Court overruled Sherben v. Verner, 374 U.S. 398 (1963) sua sponte without briefing by the parties.
128. 424 U.S. at 57 n.65.
129. Compare, e.g., Cohen v. California, 403 U.S. 15 (1971) (holding the state interest in prohibiting offensive speech was not compelling) and R.A.V. v. St. Paul (holding an anti-hate speech ordinance was not sufficiently tailored under the "compelling interest test" to effectuate the state's interests in ensuring "the basic human rights of members of groups that have historically been subjected to discrimination, including the right of such group members to live in peace where they wish").
130. The Court's recognition of the appearance of corruption justification may be particularly expandable given the reasoning that this interest was important to preserve citizen confidence in government. Id at 27.
131. Other election law cases support the Buckley implication that the compelling interest test may not raise as impenetrable a barrier in campaign regulation cases as it does in other areas. See Burson v. Freeman, 504 U.S. 191 (1992) (state has a compelling interest in curbing electioneering).
132. See Freeman, 504 U.S. 191; Arkansas Educ. Television v. Forbes, 118 S. Ct. 1633 (1998); see also Frederick Schauer and Richard H. Pildes, Electoral Exceptionalism and the first Amendment, 77 TEX. L. REV. 1803 (1999).
133. See Freeman, 504 U.S. 191; Arkansas Educ. Television v. Forbes, 118 S. Ct. 1633 (1998); see also Frederick Schauer and Richard H. Pildes, Electoral Exceptionalism and the first Amendment, 77 TEX. L. REV. 1803 (1999).
134. See Freeman, 504 U.S. 191; Arkansas Educ. Television v. Forbes, 118 S. Ct. 1633 (1998); see also Frederick Schauer and Richard H. Pildes, Electoral Exceptionalism and the first Amendment, 77 TEX. L. REV. 1803 (1999).
135. Buckley v. Valeo, 424 U.S. 1, 19 (1976).
136. Wright, supra note 73, at 1005.
137. See William J. Connolly, How Low Can You Go? State Campaign Contribution Limits and the First Amendment, 76 B.U. L. REV. 483, 511 (1996) (discussing the criticism levied against the money-as-speech proposition); Wright, supra note 73, at 1007 (criticizing the Court for performing a judicial sleight of hand by changing the question from whether the use of money can be regulated where there is an incidental effect on speech to whether pure speech can be regulated where there is some incidental effect on money).
138. See William J. Connolly, How Low Can You Go? State Campaign Contribution Limits and the First Amendment, 76 B.U. L. REV. 483, 511 (1996) (discussing the criticism levied against the money-as-speech proposition); Wright, supra note 73, at 1007 (criticizing the Court for performing a judicial sleight of hand by changing the question from whether the use of money can be regulated where there is an incidental effect on speech to whether pure speech can be regulated where there is some incidental effect on money).
139. As Justice White has argued, The First Amendment protects the right to speak, not the right to spend, and limitations on the amount of money that can be spent are not the same as restrictions on speaking . . . . [E]xpenditures [may] 'produce' core First Amendment speech . . . . But that is precisely the point: they produce such speech; they are not speech itself . . . . Such a house-that-Jack built approach could equally be used to find First Amendment right to a job or to a minimum wage to 'produce' the money to 'produce' the speech. Federal Election Comm'n v. National Conservative Political Action Comm., 470 U.S. 480, 508 (1985) (White, J., dissenting).
140. Nor is limiting the quantity of speech that may be purchased analogous to the limiting of the noise volume of speech that the Court has allowed in the loudspeaker cases. The volume of speech is not speech. Kovacs v. Cooper, 336 U.S. 77 (1949). In Kovacs, the Court upheld an ordinance which prohibited the use of loudspeakers which played "loud and raucous noises when attached to a vehicle on the street." Id. at 78. The Court believed that this kind of regulation was permissible as long as it did not impact one speaker differently than another. Id. at 88-89.
141. See Polsby, supra note 91, at 18 (noting how the Buckley opinion established the rather tight equation between the expenditure of money and constitutionally protected speech).
142. Buckley v. Valeo, 424 U.S. 1 (1976).
143. Indeed, some have indicated that the amount spent in campaigns is low when compared to the advertising budgets of corporate advertisers. Smith, supra note 6, at 1060.
144. See Bradley A. Smith, Money Talks: Speech, Corruption, Equality and Campaign Finance Reform, 86 GEO. L.J. 45, 51 (1997) ("legislatures have sought to regulate campaign-giving precisely because such giving is believed to have communicative significance").
145. See JOSHUA ROSENCRANZ, THE BUCKLEY STOPS HERE: LOOSENING THE JUDICIAL STRANGLE-HOLD ON CAMPAIGN FINANCE REFORM (1998).
146. See Vincent Blasi, Campaign Finance Reform: The Constitutional Questions; Spending Limits and the Squandering of Candidates Time, 6 J.L. & POL'Y 123, 124 (1997) ("As a result [of Buckley], candidates need as much money as ever to keep up with the competition but had to get that money in small units, inevitably in a more time-consuming manner.").
147. See Smith, supra note 6, at 1081-82 (indicating that the ability to spend unlimited amounts along with contributions limits favors wealthy candidates).
148. See Lillian R. BeVier, Money and Politics: A Perspective on the First Amendment and Campaign Finance Reform, 73 CAL. L. REV. 1045, 1080 (1985) (indicating that challengers in particular find fund raising under the current law very difficult and that contribution limits increasingly insulate incumbents).
149. See, e.g., Bipartisan Campaign Reform Act of 1997, S. 25 406, 105th Cong. (broadening the definition of express advocacy to include any general public communication or political advertising within 30 days of the date of a primary and 60 days before the date of a general elections that "a reasonable person would understand as advocating the election or defeat of a candidate").
150. Jeffrey D. Stanger & Douglas G. Roubin, Issue Advocacy Advertising During the 1997-1998 Election Cycle, Annenberg Public Policy Center (1998); see Deborah Beck et al., Issue Advocacy Advertising During the 1996 Campaign: A Catalog, Annenberg Public Policy Center (1997) [hereinafter 1996 Annenberg Catalog]. The 1996 Annenberg Catalog estimates that S135-S150 million dollars was spent by more than two dozen organizations engaging in issue advocacy advertising during the 1995-96 election cycle compared to $400 million spent by candidates for the U.S. House, Senate, and Presidency. Id at 3.
151. Jeffrey D. Stanger & Douglas G. Roubin, Issue Advocacy Advertising During the 1997-1998 Election Cycle, Annenberg Public Policy Center (1998); see Deborah Beck et al., Issue Advocacy Advertising During the 1996 Campaign: A Catalog, Annenberg Public Policy Center (1997) [hereinafter 1996 Annenberg Catalog]. The 1996 Annenberg Catalog estimates that S135-S150 million dollars was spent by more than two dozen organizations engaging in issue advocacy advertising during the 1995-96 election cycle compared to $400 million spent by candidates for the U.S. House, Senate, and Presidency. Id at 3.
152. See supra notes 40-42 and accompanying text.
153. Justice Kennedy, in his Shrink Missouri dissent, makes a related point. After Buckley, issue advocacy is unrestricted, "while straightforward speech in the form of financial contributions paid to a candidate, speech subject to full disclosure and prompt evaluation by the public, is not." The result of this juxtaposition, as Kennedy notes, forces political speech "underground, as contributors and candidates devise ever more elaborate methods of avoiding contribution limits." This result, argues Kennedy, "mocks the First Amendment." Nixon v. Shrink Missouri Government PAC, No. 98-963, 2000 WL 48424, at *17 (U.S. Jan. 24, 2000) (Kennedy, J., dissenting). The problem with politically unaccountable entities influencing elections appears to be well borne out. For example, the 1996 Annenberg Catalog notes that labor and environmental groups spent over $2 million dollars targeting freshman Representative Dick Chrysler (R. Mich.). He was not re-elected. See 1996 Annenberg Catalog, supra note 121, at 5.
154. An example of the problem of under-regulating issue advocacy is an "issue ad" that an organization calling itself Citizens for Reform ran in the 1996 House race between Republican Rick Hill and Democrat Bill Yellowtail. The text of the ad is as follow: "Who is Bill Yellowtail? He preaches family values, but he took a swing at his wife. And Yellowtail's explanation? He 'only slapped her.' But her nose was broken." According to the Annenberg Center, the ad was credited by political analysts with tipping a tight race to Hill, who eventually won with 52% of the vote. See 1996 Annenberg Catalog, supra note 121, at 4 (citation omitted).
155. Shrink Missouri Government, 2000 WL 48424, at *18 (Kennedy, J., dissenting).
156. SAMUEL ISSACHAROFF ET AL., THE LAW OF DEMOCRACY: LEGAL REGULATION OF THE POLITICAL PROCESS 1 (1998) (stating that politics does not take place in a vacuum but rather operates under pre-existing laws, rules, and institutions).
157. The move to an open primary in California, for example, was designed to promote the selection of moderate candidates because it was believed that the closed primary system encouraged candidates to appeal to the extremes within their own party.
158. David Keene, Campaign Finance: Life as a Political Consultant, 6 J.L. & POL'Y 57, 61 (1997).
159. See, e.g., Larry Kramer, Understanding Federalism, 47 VAND. L. REV. 1485, 1530 (1994) (arguing that reformers "reduced party control over candidate selection by mandating primaries for many state and federal offices").
160. See Smith, supra note 6, at 1081 ("[W]ealth provides a direct campaign advantage that cannot be offset by a large contributor to the opposing candidate.").
161. See Peter H. Schuck, The Thickest Thicket: Partisan Gerrymandering and Judicial Regulation of Politics, 87 COLUM. L. REV. 1325, 1372-74 (1987) (indicating that party identification is weak and that the spread of the primary system has reduced the power of parties).
162. Cf. LOWENSTEIN, supra note 39 (noting the increased cost to candidates of building their own organizations because of the decline in party organization).
163. See Samuel Issacharoff & Richard H. Pildes, Politics as Markets: Partisan Lockups of the Democratic Process, 50 STAN. L. REV. 643, 687 (1998) (noting the costs of ballot access on third party presidential campaigns; for example, John Anderson, an independent presidential candidate in 1980, had to spend almost half his campaign funds just to get on the ballot in all of the states).
164. See Smith, supra note 6, at 1082-83 ("Typically, regulation favors those already familiar with the regulatory machinery and those with the money and sophistication to hire the lawyers, accountants, and lobbyists needed to comply with complex filing requirements.").
165. For example, the current attempts to move some of the larger presidential primaries to early in the presidential election season are, in part, efforts to help the party's frontrunners. If these attempts succeed, "such a short season - roughly three quarters of the nation's voters casting their ballots in an eight-day period - will force candidates to start fund-raising early and load up on national TV spots, a scenario that naturally favors the richest candidates." Betsy Streisand, Where America is Heading, U.S. NEWS & WORLD REP., Dec. 7, 1998, at 24-26.
166. Keene, supra note 128, at 61-62.
167. One leading commentator has described the current state of affairs as one in which there has been a "loss of faith in democracy." Neuborne, supra note 98, at 1073.
168. See Dan Schechter, Eye on the Media/The Media Was No Winner in Elections, NEWSDAY, Nov. 25, 1998, at A42 (indicating only 36.1% of eligible voters voted in 1998).
169. See Nicholson, supra note 4, at 328 ("[C]andidates without ties to wealth are deterred from entering the electoral process.").
170. See STEPHEN ANSOLABEHERE & SHANTO IYENGAR, GOING NEGATIVE: How ATTACK ADS SHRINK AND POLARIZE THE ELECTORATE 2, 3 (1995) (noting that campaigns have become more divisive over the last twenty years).
171. See MICHAEL X. DELLI CARPINI & SCOTT KEETER, WHAT AMERICANS KNOW ABOUT POLITICS AND WHY IT MATTERS (1996) (arguing that even voters who tend to be more informed than nonvoters "still remain ignorant about issue stands of candidates and parties.").
172. See Jack B. Sarno, A Natural Law Defense of Buckley v. Valeo, 66 FORDHAM L. REV. 2693, 2764 (1998) (claiming that candidates cannot rely on "the mainstream media to get their message out"); Eleanor Randolph, Squeeze on Media Coverage May be Bad News for Dole, L.A. TIMES, Oct. 3, 1996, at A1 (indicating the decline in time devoted to politics during broadcast news coverage).
173. See Jack B. Sarno, A Natural Law Defense of Buckley v. Valeo, 66 FORDHAM L. REV. 2693, 2764 (1998) (claiming that candidates cannot rely on "the mainstream media to get their message out"); Eleanor Randolph, Squeeze on Media Coverage May be Bad News for Dole, L.A. TIMES, Oct. 3, 1996, at A1 (indicating the decline in time devoted to politics during broadcast news coverage).
174. See Anthony King, Running Scared, ATLANTIC MONTHLY, Jan. 1997 (the endless election cycle is the result of the short terms of offices, proliferation of primaries, and the vast number of elected offices which need to be filled).
175. See Fewell, supra note 45, at 110-21 (listing numerous examples of benefits given to individuals and groups in order to obtain contributions).
176. See Blasi, supra note 49, at 123 (stating fundraising diverts the time and energy officials need to do their jobs); David A. Strauss, What is the Goal of Campaign Finance Reform?, 1995 U. CHI. LEGAL F. 141, 155-56 (1995) (same).
177. See Blasi, supra note 49, at 123 (stating fundraising diverts the time and energy officials need to do their jobs); David A. Strauss, What is the Goal of Campaign Finance Reform?, 1995 U. CHI. LEGAL F. 141, 155-56 (1995) (same).
178. See Richard Hasen, Entrenching the Duopoly: Why the Supreme Court Should Not Allow the States to Protect the Democrats and Republican from Political Competition, 8 SUP. CT. REV. 331, 351 (1997) ("[C]hanges in the technology of campaigning, most importantly changes in the rise of television, and various party reforms, most importantly changes in the presidential nomination process, have transformed campaigns for major offices from party-centered, labor intensive campaigns to candidate-centered, capital-intensive campaigns.").
179. See Graph 1 and Graph 2, which seem to support this conclusion. ("Elections Make the Government Pay Attention: 1064-1996," NES Guide to Public Opinion and Electoral Behavior, Graph 5C.2.3, 1995-1998; "People Don't Have a Say in What the Government Does: 1952-1996," NES Guide to Public Opinion and Electoral Behavior, Graph 5B.2.1, 1995-1998.)
180. One reformer, Senator Russell Feingold, has characterized the current system governing political fund-raising as amounting to no more than legitimized bribery. See Brinkman, supra note 48.
181. See Frank Askin, Political Money and Freedom of Speech: Kathleen Sullivan's Seven Deadly Sins - an Antitoxin, 31 U.C. DAVIS L. REV. 1065, 1074-85 (1998) (advising political aspirants to win the lottery or marry a wealthy spouse).
182. See Smith, supra note 6, at 1083-84 (discussing the harms of litigation associated with campaign finance regulations); see also Grann, supra note 58, at 19 (discussing how the new ethics laws "have enabled politicians to use the law not as a means of justice but as a means of destroying one another" and, as a result, have increased voter cynicism).
183. One commentator, for example, has claimed that the reformers' case for change has been based more on rhetoric than on substance. See LaPierre, supra note 92, at 225 ("The reformers . . . frequently have little or no evidence that particular campaign practices cause any real harm.").
184. See Politicians for Rent, ECONOMIST, Feb. 8, 1997, at 23.
185. This is not to deny that there are some incumbents whose relationships with their constituencies are so entrenched that little, if any, additional communication to the voters is necessary.
186. The correlation between spending money and winning in political campaigns is startling. According to one study, "the candidate who spent the most in a House race won 89% of the time; in Senate races, the figure was 86%." E. Joshua Rosenkranz, Faulty Assumptions in "Faulty Assumptions": A Response to Professor Smith's Critiques of Campaign Finance Reform, 30 CONN. L. REV. 867, 885 (1998); see also Tim Poor, Money Talks at the Ballot Box: Election Results Reaffirm the Impact of Deep Pockets in Voting Outcomes, ST. LOUIS POST-DISPATCH, Nov. 8 1998, at B1 (indicating that in 94% of the races for House and Senate, the winning candidate was the one who spent the most money). There should be some pause, however, before reading too much into these statistics. The correlation does not, by itself, establish a causal link. Candidates who enjoy greater popular support are, for that reason, likely to receive more contributions and, accordingly, will have more funds to spend. The spending/winning correlation, therefore, may in some part only reflect pre-existing preferences. On the other hand, the fact that the correlation is so high is not easily dismissed.
187. The correlation between spending money and winning in political campaigns is startling. According to one study, "the candidate who spent the most in a House race won 89% of the time; in Senate races, the figure was 86%." E. Joshua Rosenkranz, Faulty Assumptions in "Faulty Assumptions": A Response to Professor Smith's Critiques of Campaign Finance Reform, 30 CONN. L. REV. 867, 885 (1998); see also Tim Poor, Money Talks at the Ballot Box: Election Results Reaffirm the Impact of Deep Pockets in Voting Outcomes, ST. LOUIS POST-DISPATCH, Nov. 8 1998, at B1 (indicating that in 94% of the races for House and Senate, the winning candidate was the one who spent the most money). There should be some pause, however, before reading too much into these statistics. The correlation does not, by itself, establish a causal link. Candidates who enjoy greater popular support are, for that reason, likely to receive more contributions and, accordingly, will have more funds to spend. The spending/winning correlation, therefore, may in some part only reflect pre-existing preferences. On the other hand, the fact that the correlation is so high is not easily dismissed.
188. See MONTAGUE KERN, 30-SECOND POLITICS: POLITICAL ADVERTISING IN THE EIGHTIES 5 (1989)
189. (citing Michael Pfau & Michael Burgoon, Inoculation in Political Campaign Communication, in HUMAN COMMUNICATION RESEARCH 15, 91-111 (1998) for the proposition that early image making can inoculate a candidate from subsequent attacks).
190. See, e.g., Jo Mannies & Lorraine Kee, Bosley, Harmon Channel their Messages onto TV, ST. LOUIS POST-DISPATCH, Feb. 17, 1997, at 1A (discussing how one candidate used a humorous inoculation ad ("Extra! Extra! Plane Crashes; Mayor at Fault . . . Extra! Extra! Rams Lose; Bosley Blamed") in order to cast suspicion on the source of criticism).
191. See ROBERT D. LOEVY, THE FLAWED PATH TO THE PRESIDENCY 1992 at 196 (1995) (author discusses how, during the 1992 presidential campaign, any attack on Bill Clinton would be immediately answered by his "War Room." The campaign would take George Bush's new campaign commercials off the satellite even before they were shown on network television; in this manner, the Clinton campaign was able to start working on their response even before the Bush ads were ever shown to the public.).
192. See, e.g., Thomas B. Rosenstiel, In Politics, the Defense Never Rests: The Clinton and Bush Teams Work Around the Clock to Anticipate Attacks and Map out Responses, L.A. TIMES, Aug. 7, 1992, at A1 (indicating how both presidential candidates relied on preemptive strikes and quick responses in order to maintain their images).
193. The costs are particularly high if the candidate is unknown to the voters. Under those circumstances, she must spend significant resources establishing who she is before she can begin to define her opponent. If a candidate's first exposure to the voters is in the form of her issuing an attack, she may be perceived as unduly negative.
194. This leads to a situation in which the need for campaign money is not limited to the amount necessary for a candidate to get her message out but is instead a function of the resources of her opponent because the strategic need to respond depends upon her opponents expenditures. See Richard L. Hasen, Campaign Finance Laws and the Rupert Murdoch Problem, 77 TEX. L. REV. 1627 (1999).
195. See infra notes 162-76 and accompanying text.
196. See supra notes 37-42 and accompanying text.
197. See generally Ronald J. Allen, The National Initiative Proposal: A Preliminary Analysis, 58 NEB. L. REV. 965, 1032 (1979) (arguing that "[p]eople tend not to take political propaganda very seriously").
198. See David Bauder, Election Ads Outnumber News Stories, AP ONLINE, Oct. 29, 1998, available in 1998 WL 21780639 (indicating that political advertisements on local TV news shows outnumbered actual political news stories by more than four to one).
199. See, e.g., Carla Brooks Johnston, Let's Change How We Cover Elections, BOSTON GLOBE, Aug. 17, 1998, at A9 (criticizing reporters and editors for their determinations of which campaigns are covered and how much coverage they will get as not being "the role of the new media in democratic elections"); Tony Perry, Running as a Have-Not, Fong Snubbed by TV; Without Money for Ads Like Wealthy Rival Darrell Issa, He Relies on Makeshift New Events - With Mixed Results, L.A. TIMES, May 12, 1998, at A1 (noting that no television stations sent a reporter or even a TV camera to cover a San Diego news conference held by a candidate for the U.S. Senate from California).
200. See, e.g., Carla Brooks Johnston, Let's Change How We Cover Elections, BOSTON GLOBE, Aug. 17, 1998, at A9 (criticizing reporters and editors for their determinations of which campaigns are covered and how much coverage they will get as not being "the role of the new media in democratic elections"); Tony Perry, Running as a Have-Not, Fong Snubbed by TV; Without Money for Ads Like Wealthy Rival Darrell Issa, He Relies on Makeshift New Events - With Mixed Results, L.A. TIMES, May 12, 1998, at A1 (noting that no television stations sent a reporter or even a TV camera to cover a San Diego news conference held by a candidate for the U.S. Senate from California).
201. Even sporting events can be problematic for a candidate. See Evelyn Theiss, Campaign Strategy Pays Off for White, CLEVELAND PLAIN DEALER, Nov. 6, 1997, at 1B (quoting a candidate as saying: "[W]hat happened then was the loss of momentum because of three weeks of baseball. Nothing happened. There was no media to be had for any topic other than the Cleveland Indians. In a campaign like ours, where you depend on free-media coverage, that's a killer.").
202. See Sarno, supra note 142; Cass R. Sunstein, Speech in the Welfare State: Free Speech Now, 59 U. CHI. L. REV. 255, 281 (1992) (noting that "for presidential candidates, the average block of uninterrupted speech fell from 42.3 seconds in 1968 to only 9.8 seconds in 1988" (citation omitted)); see also Randolph, supra note 142.
203. See Sarno, supra note 142; Cass R. Sunstein, Speech in the Welfare State: Free Speech Now, 59 U. CHI. L. REV. 255, 281 (1992) (noting that "for presidential candidates, the average block of uninterrupted speech fell from 42.3 seconds in 1968 to only 9.8 seconds in 1988" (citation omitted)); see also Randolph, supra note 142.
204. See Sarno, supra note 142; Cass R. Sunstein, Speech in the Welfare State: Free Speech Now, 59 U. CHI. L. REV. 255, 281 (1992) (noting that "for presidential candidates, the average block of uninterrupted speech fell from 42.3 seconds in 1968 to only 9.8 seconds in 1988" (citation omitted)); see also Randolph, supra note 142.
205. See. e.g., Perry, supra note 163; William Clairborne, California Senate Race Loses Sizzle: Novice's Deep Pockets, the Hot Economy Shrink GOP Field, WASH. POST, May 25, 1998, at A4 ("Even less prominent on the airwaves has been 'free media' or television news coverage of staged campaign events.").
206. See. e.g., Perry, supra note 163; William Clairborne, California Senate Race Loses Sizzle: Novice's Deep Pockets, the Hot Economy Shrink GOP Field, WASH. POST, May 25, 1998, at A4 ("Even less prominent on the airwaves has been 'free media' or television news coverage of staged campaign events.").
207. Indeed, the irony is that it appears that the campaign event most likely to generate free-media coverage is a publicized release of a new campaign ad.
208. SIG MICKELSON, FROM WHISTLE STOP TO SOUND BITE: FOUR DECADES OF POLITICS AND TELEVISION 175 (1989) (discussing the decline of network television viewership).
209. Whether candidate websites will be able to supplant some of the need for paid broadcast advertising has not yet been established. David Nyhan, The World Wide Web Beginning to be a Political Player, POST & COURIER, Dec. 8, 1998, at A17 ("Despite promise for organizing volunteers and harvesting credit-card contributions over secure computer-modem hookups, the Internet is still no match for television - network, local, cable - when it comes to moving votes en masse. If you build it, you have to advertise it.");
210. Rachel Van Dongen, 2000 Election Will be First of Digital Era, New Study Predicts, ROLL CALL, Nov. 22, 1998, available at (indicating that the use of the Internet is increasing but is unlikely to have a major effect in the next few years).
211. See NEIL POSTMAN, AMUSING OURSELVES TO DEATH 130-32 (1984) (discussing how American culture has adapted to the discourse of television commercials).
212. The leading work on the information shortcuts that individuals take in making electoral decisions is ANTHONY DOWNS, AN ECONOMIC THEORY OF DEMOCRACY (1957). As Downs explains: "In complex cultures, an essential part of political decisionmaking is delegation to others of several steps in the process. Nearly all data procurement and much factual analysis are done by specialized agencies rather than decision makers themselves. By utilizing such agencies, citizens cut their costs enormously." Id. at 237. Downs' work does not address the use of political advertising as an information shortcut, but he does note the voter's use of information received through mass media for this purpose. Id at 229. The need for the voters in the United States to take information short-cuts may be greater than in other countries because of the political role that the people have imposed upon themselves. As Anthony King observes, American people are hyperdemocrats. By this he means that Americans view their representatives as agents, reflecting their constituents' views. This, he contends, is different from other democracies where the governed see their roles only as electors, leaving the decision making to the governors. The result of this agency-style view of democracy is that more and more political decisions are being entrusted to the people in the form of initiatives, short terms of offices, proliferation of primaries, and the vast number of elected offices. See King, supra note 143.
213. Heralders of some imaginary golden age of American democracy aside, the average voter in the United States has never been particularly well-informed about political issues. See SAMUEL L. POPKIN, THE REASONING VOTER; COMMUNICATION AND PERSUASION IN PRESIDENTIAL CAMPAIGNS 34-35 (1994). Rather, the American voter has historically made political choices based upon what Samuel Popkin call "low-information" reasoning. Id. at 7. As Popkin explains, voters act on "cues" from the political culture rather than on a detailed understanding of political issues. Id. at 16. These cues allow the voter to make rational electoral choices by abbreviating political issues into a form that is easily and quickly discernible. Id. at 213. The voter takes his cues from a variety of sources. Some are from personal relationships such as families, friends, and colleagues. Id. at 44-47. A voter may choose to vote for X on the grounds that his more politically active cousin also supports X (or perhaps because his cousin, a disagreeable sort, supports Y). Or the voter may take his cues from political discussion. Through this mechanism the voters pool the cues that each has gleaned from the broader culture. The ability of the cue to effectively serve as a short-cut from which the voter is able to determine her self-interest, of course, depends on the accuracy of the information upon which it is based. See CARPINI & KEETER, supra note 141, at 46. Previously, the cue of political party affiliation played an important informational role. See POPKIN, supra note 172, at 50-60. This occurred not only through the identification of the party with certain issues but also through the cues that were created by the persons who belonged to or were active within those parties. Id. The informational value of the political party cue has weakened as the role of the parties has diminished. Id. at 226-27. The question is what has filled this void? One answer is the public opinion poll. Id. at 124. Voters look to the consensus of other voters in order to determine their own positions. But there are two problems with the use of polls as political cues. One is that they do not check the power of political advertising - they exacerbate it because polls are influenced by paid media. The second is that the use of polling as a political cue is essentially a house of cards. In order for the poll to have value as a vote cue it must signal something. If the poll's sample, however, has no particular knowledge of the underlying issue, there is no information that the poll provides anything other than the sample population's visceral reaction. See CARPINI & KEETER, supra note 141, at 61.
214. See KATHLEEN HALL JAMIESON, PACKAGING THE PRESIDENCY: A HISTORY AND CRITICISM OF PRESIDENTIAL CAMPAIGN ADVERTISING 493 (3d ed. 1996) (indicating that test groups were used in order to check the effectiveness of campaign ads).
215. See DON E. SHULTZ & STANLEY I. TANNENBAUM, ESSENTIAL OF ADVERTISING STRATEGY 7 (2d ed. 1988) (indicating that advertising is more efficient and more effective "than any other system available").
216. Political strategists, for example, widely assert that the last-minute infusion of money into the 1996 congressional races saved the House majority for the Republicans and that the Democratic Party's "soft money" ads played a major role in Bill Clinton's reelection bid. 176 There is no clear consensus among empirical researchers as to political advertising's effects. This may be because there are too many variables for accurate measurement. Most studies simply measure voter recall of information contained in ads or use experimental lab studies to determine whether the selected voters like or dislike the ads themselves. See Robert G. Meadow, Political Campaigns, in PUBLIC COMMUNICATION CAMPAIGNS, 259-61 (Ronald E. Rice & Charles Atkin eds., 1990). Whether these studies have any value in predicting voter behavior is difficult to determine. Research does exist that suggests political advertising can be effective - although not always in the sense of motivating substantial numbers of voters to support, or oppose, a particular candidate. Some studies do support the position that there is a direct effect. They contend that specific types of political advertising, specifically negative advertising or eleventh hour advertisements aimed at undecided voters, can directly influence the voter's electoral decision. See Patrick Devlin, Political Commercials in American Presidential Elections, in POLITICAL ADVERTISING IN WESTERN DEMOCRACIES 186, 187 (Lynda Lee Kaid & Christina Holtz-Bacha eds., 1995) (stating that political ads may be instrumental in moving the "swing voters," who are disinterested, late deciding, or undecided voters); Bruce Pinkleton, The Effects of Negative Comparative Political Advertising on Candidate Evaluations and Advertising Evaluations: An Exploration, 26 J. ADVERTISING 19 (1997) (negative ads move voters). Two leading researchers, on the other hand contend that although campaign ads provide information, there is only weak evidence that they directly impact the attitudes and voting behaviors of individuals. See Stephen Ansolabehere & Shanto Iyengar, The Craft of Political Advertising: A Progress Report, in POLITICAL PERSUASION AND ATTITUDE CHANGE 101-18 (Diana C. Mutz et al. eds., 1996). Rather, according to these researchers, political ads primarily provide information and reinforce partisan loyalties. ANSOLABEHERE & IYENGAR, supra note 140, at 2. Ansolabehere and Iyengar do show that negative ads can be directly effective in suppressing voter turnout, a factor that can affect election outcomes. Id. at 9. Other research supports the conclusion that political ads are more subtly effective in influencing voter preferences. First, some research indicates that political advertising can be instrumental in allowing the candidate to set the agenda of the race. See Lynda Lee Kaid, Political Advertising, in HANDBOOK OF POLITICAL COMMUNICATION, 249, 262-63 (Dan D. Nimmo & Keith R. Sanders eds., 1981); cf. IYENGAR & KINDER, NEWS THAT MATTERS (discussing the ability of the media to set the political agenda); David H. Weaver, What Voters Learn from Media, 546 ANNALS AM. ACAD. POL. & SOC. SCI. 34, 37 (1996) (concluding that "[m]ass communications may have little direct effect on opinions and attitudes but a significant cumulative effect on cognitions, especially on the agenda of various topics that voters might have opinions about"). Agenda setting can have an important effect on outcome. In the 1992 Clinton-Bush race, for example, the Clinton campaign, through both paid-media and free-media devices, was able to make the economy the issue, rather than foreign policy. This strategy played into Clinton's perceived strength and Bush's perceived weakness. See William P. Marshall, Free Speech and the "Problem" of Democracy, 89 NW. U. L. REV. 191, 206 (1994). Other research shows that political advertising works in establishing the candidate's initial image and lessening the impact of future attacks by opponents. See Donald T. Cundy, Political Commercials and Candidate Image: The Effect Can be Substantial, in NEW PERSPECTIVES ON POLITICAL ADVERTISING 210-234 (Lynda Lee Kaid et al. eds., 1986). As with agenda setting, this tactic can affect election outcomes. See supra notes 155-56 and accompanying text. Additional support for the claim that political advertising influences voter preferences is the finding that political ads may also play into low-information voting patterns by becoming part of the background information from which voters receive cues. See POPKIN, supra note 172, at 41. An ad stating, for example, that Candidate X is soft on crime might not directly move the viewer, but it is the type of information, if it has resonance, that is likely to be discussed at the water cooler, neighborhood bar, or family dinner table when persons are engaging in the informal discussions that influence their ultimate voting decision.
217. Political strategists, for example, widely assert that the last-minute infusion of money into the 1996 congressional races saved the House majority for the Republicans and that the Democratic Party's "soft money" ads played a major role in Bill Clinton's reelection bid. 176 There is no clear consensus among empirical researchers as to political advertising's effects. This may be because there are too many variables for accurate measurement. Most studies simply measure voter recall of information contained in ads or use experimental lab studies to determine whether the selected voters like or dislike the ads themselves. See Robert G. Meadow, Political Campaigns, in PUBLIC COMMUNICATION CAMPAIGNS, 259-61 (Ronald E. Rice & Charles Atkin eds., 1990). Whether these studies have any value in predicting voter behavior is difficult to determine. Research does exist that suggests political advertising can be effective - although not always in the sense of motivating substantial numbers of voters to support, or oppose, a particular candidate. Some studies do support the position that there is a direct effect. They contend that specific types of political advertising, specifically negative advertising or eleventh hour advertisements aimed at undecided voters, can directly influence the voter's electoral decision. See Patrick Devlin, Political Commercials in American Presidential Elections, in POLITICAL ADVERTISING IN WESTERN DEMOCRACIES 186, 187 (Lynda Lee Kaid & Christina Holtz-Bacha eds., 1995) (stating that political ads may be instrumental in moving the "swing voters," who are disinterested, late deciding, or undecided voters); Bruce Pinkleton, The Effects of Negative Comparative Political Advertising on Candidate Evaluations and Advertising Evaluations: An Exploration, 26 J. ADVERTISING 19 (1997) (negative ads move voters). Two leading researchers, on the other hand contend that although campaign ads provide information, there is only weak evidence that they directly impact the attitudes and voting behaviors of individuals. See Stephen Ansolabehere & Shanto Iyengar, The Craft of Political Advertising: A Progress Report, in POLITICAL PERSUASION AND ATTITUDE CHANGE 101-18 (Diana C. Mutz et al. eds., 1996). Rather, according to these researchers, political ads primarily provide information and reinforce partisan loyalties. ANSOLABEHERE & IYENGAR, supra note 140, at 2. Ansolabehere and Iyengar do show that negative ads can be directly effective in suppressing voter turnout, a factor that can affect election outcomes. Id. at 9. Other research supports the conclusion that political ads are more subtly effective in influencing voter preferences. First, some research indicates that political advertising can be instrumental in allowing the candidate to set the agenda of the race. See Lynda Lee Kaid, Political Advertising, in HANDBOOK OF POLITICAL COMMUNICATION, 249, 262-63 (Dan D. Nimmo & Keith R. Sanders eds., 1981); cf. IYENGAR & KINDER, NEWS THAT MATTERS (discussing the ability of the media to set the political agenda); David H. Weaver, What Voters Learn from Media, 546 ANNALS AM. ACAD. POL. & SOC. SCI. 34, 37 (1996) (concluding that "[m]ass communications may have little direct effect on opinions and attitudes but a significant cumulative effect on cognitions, especially on the agenda of various topics that voters might have opinions about"). Agenda setting can have an important effect on outcome. In the 1992 Clinton-Bush race, for example, the Clinton campaign, through both paid-media and free-media devices, was able to make the economy the issue, rather than foreign policy. This strategy played into Clinton's perceived strength and Bush's perceived weakness. See William P. Marshall, Free Speech and the "Problem" of Democracy, 89 NW. U. L. REV. 191, 206 (1994). Other research shows that political advertising works in establishing the candidate's initial image and lessening the impact of future attacks by opponents. See Donald T. Cundy, Political Commercials and Candidate Image: The Effect Can be Substantial, in NEW PERSPECTIVES ON POLITICAL ADVERTISING 210-234 (Lynda Lee Kaid et al. eds., 1986). As with agenda setting, this tactic can affect election outcomes. See supra notes 155-56 and accompanying text. Additional support for the claim that political advertising influences voter preferences is the finding that political ads may also play into low-information voting patterns by becoming part of the background information from which voters receive cues. See POPKIN, supra note 172, at 41. An ad stating, for example, that Candidate X is soft on crime might not directly move the viewer, but it is the type of information, if it has resonance, that is likely to be discussed at the water cooler, neighborhood bar, or family dinner table when persons are engaging in the informal discussions that influence their ultimate voting decision.
218. Political strategists, for example, widely assert that the last-minute infusion of money into the 1996 congressional races saved the House majority for the Republicans and that the Democratic Party's "soft money" ads played a major role in Bill Clinton's reelection bid. 176 There is no clear consensus among empirical researchers as to political advertising's effects. This may be because there are too many variables for accurate measurement. Most studies simply measure voter recall of information contained in ads or use experimental lab studies to determine whether the selected voters like or dislike the ads themselves. See Robert G. Meadow, Political Campaigns, in PUBLIC COMMUNICATION CAMPAIGNS, 259-61 (Ronald E. Rice & Charles Atkin eds., 1990). Whether these studies have any value in predicting voter behavior is difficult to determine. Research does exist that suggests political advertising can be effective - although not always in the sense of motivating substantial numbers of voters to support, or oppose, a particular candidate. Some studies do support the position that there is a direct effect. They contend that specific types of political advertising, specifically negative advertising or eleventh hour advertisements aimed at undecided voters, can directly influence the voter's electoral decision. See Patrick Devlin, Political Commercials in American Presidential Elections, in POLITICAL ADVERTISING IN WESTERN DEMOCRACIES 186, 187 (Lynda Lee Kaid & Christina Holtz-Bacha eds., 1995) (stating that political ads may be instrumental in moving the "swing voters," who are disinterested, late deciding, or undecided voters); Bruce Pinkleton, The Effects of Negative Comparative Political Advertising on Candidate Evaluations and Advertising Evaluations: An Exploration, 26 J. ADVERTISING 19 (1997) (negative ads move voters). Two leading researchers, on the other hand contend that although campaign ads provide information, there is only weak evidence that they directly impact the attitudes and voting behaviors of individuals. See Stephen Ansolabehere & Shanto Iyengar, The Craft of Political Advertising: A Progress Report, in POLITICAL PERSUASION AND ATTITUDE CHANGE 101-18 (Diana C. Mutz et al. eds., 1996). Rather, according to these researchers, political ads primarily provide information and reinforce partisan loyalties. ANSOLABEHERE & IYENGAR, supra note 140, at 2. Ansolabehere and Iyengar do show that negative ads can be directly effective in suppressing voter turnout, a factor that can affect election outcomes. Id. at 9. Other research supports the conclusion that political ads are more subtly effective in influencing voter preferences. First, some research indicates that political advertising can be instrumental in allowing the candidate to set the agenda of the race. See Lynda Lee Kaid, Political Advertising, in HANDBOOK OF POLITICAL COMMUNICATION, 249, 262-63 (Dan D. Nimmo & Keith R. Sanders eds., 1981); cf. IYENGAR & KINDER, NEWS THAT MATTERS (discussing the ability of the media to set the political agenda); David H. Weaver, What Voters Learn from Media, 546 ANNALS AM. ACAD. POL. & SOC. SCI. 34, 37 (1996) (concluding that "[m]ass communications may have little direct effect on opinions and attitudes but a significant cumulative effect on cognitions, especially on the agenda of various topics that voters might have opinions about"). Agenda setting can have an important effect on outcome. In the 1992 Clinton-Bush race, for example, the Clinton campaign, through both paid-media and free-media devices, was able to make the economy the issue, rather than foreign policy. This strategy played into Clinton's perceived strength and Bush's perceived weakness. See William P. Marshall, Free Speech and the "Problem" of Democracy, 89 NW. U. L. REV. 191, 206 (1994). Other research shows that political advertising works in establishing the candidate's initial image and lessening the impact of future attacks by opponents. See Donald T. Cundy, Political Commercials and Candidate Image: The Effect Can be Substantial, in NEW PERSPECTIVES ON POLITICAL ADVERTISING 210-234 (Lynda Lee Kaid et al. eds., 1986). As with agenda setting, this tactic can affect election outcomes. See supra notes 155-56 and accompanying text. Additional support for the claim that political advertising influences voter preferences is the finding that political ads may also play into low-information voting patterns by becoming part of the background information from which voters receive cues. See POPKIN, supra note 172, at 41. An ad stating, for example, that Candidate X is soft on crime might not directly move the viewer, but it is the type of information, if it has resonance, that is likely to be discussed at the water cooler, neighborhood bar, or family dinner table when persons are engaging in the informal discussions that influence their ultimate voting decision.
219. Political strategists, for example, widely assert that the last-minute infusion of money into the 1996 congressional races saved the House majority for the Republicans and that the Democratic Party's "soft money" ads played a major role in Bill Clinton's reelection bid. 176 There is no clear consensus among empirical researchers as to political advertising's effects. This may be because there are too many variables for accurate measurement. Most studies simply measure voter recall of information contained in ads or use experimental lab studies to determine whether the selected voters like or dislike the ads themselves. See Robert G. Meadow, Political Campaigns, in PUBLIC COMMUNICATION CAMPAIGNS, 259-61 (Ronald E. Rice & Charles Atkin eds., 1990). Whether these studies have any value in predicting voter behavior is difficult to determine. Research does exist that suggests political advertising can be effective - although not always in the sense of motivating substantial numbers of voters to support, or oppose, a particular candidate. Some studies do support the position that there is a direct effect. They contend that specific types of political advertising, specifically negative advertising or eleventh hour advertisements aimed at undecided voters, can directly influence the voter's electoral decision. See Patrick Devlin, Political Commercials in American Presidential Elections, in POLITICAL ADVERTISING IN WESTERN DEMOCRACIES 186, 187 (Lynda Lee Kaid & Christina Holtz-Bacha eds., 1995) (stating that political ads may be instrumental in moving the "swing voters," who are disinterested, late deciding, or undecided voters); Bruce Pinkleton, The Effects of Negative Comparative Political Advertising on Candidate Evaluations and Advertising Evaluations: An Exploration, 26 J. ADVERTISING 19 (1997) (negative ads move voters). Two leading researchers, on the other hand contend that although campaign ads provide information, there is only weak evidence that they directly impact the attitudes and voting behaviors of individuals. See Stephen Ansolabehere & Shanto Iyengar, The Craft of Political Advertising: A Progress Report, in POLITICAL PERSUASION AND ATTITUDE CHANGE 101-18 (Diana C. Mutz et al. eds., 1996). Rather, according to these researchers, political ads primarily provide information and reinforce partisan loyalties. ANSOLABEHERE & IYENGAR, supra note 140, at 2. Ansolabehere and Iyengar do show that negative ads can be directly effective in suppressing voter turnout, a factor that can affect election outcomes. Id. at 9. Other research supports the conclusion that political ads are more subtly effective in influencing voter preferences. First, some research indicates that political advertising can be instrumental in allowing the candidate to set the agenda of the race. See Lynda Lee Kaid, Political Advertising, in HANDBOOK OF POLITICAL COMMUNICATION, 249, 262-63 (Dan D. Nimmo & Keith R. Sanders eds., 1981); cf. IYENGAR & KINDER, NEWS THAT MATTERS (discussing the ability of the media to set the political agenda); David H. Weaver, What Voters Learn from Media, 546 ANNALS AM. ACAD. POL. & SOC. SCI. 34, 37 (1996) (concluding that "[m]ass communications may have little direct effect on opinions and attitudes but a significant cumulative effect on cognitions, especially on the agenda of various topics that voters might have opinions about"). Agenda setting can have an important effect on outcome. In the 1992 Clinton-Bush race, for example, the Clinton campaign, through both paid-media and free-media devices, was able to make the economy the issue, rather than foreign policy. This strategy played into Clinton's perceived strength and Bush's perceived weakness. See William P. Marshall, Free Speech and the "Problem" of Democracy, 89 NW. U. L. REV. 191, 206 (1994). Other research shows that political advertising works in establishing the candidate's initial image and lessening the impact of future attacks by opponents. See Donald T. Cundy, Political Commercials and Candidate Image: The Effect Can be Substantial, in NEW PERSPECTIVES ON POLITICAL ADVERTISING 210-234 (Lynda Lee Kaid et al. eds., 1986). As with agenda setting, this tactic can affect election outcomes. See supra notes 155-56 and accompanying text. Additional support for the claim that political advertising influences voter preferences is the finding that political ads may also play into low-information voting patterns by becoming part of the background information from which voters receive cues. See POPKIN, supra note 172, at 41. An ad stating, for example, that Candidate X is soft on crime might not directly move the viewer, but it is the type of information, if it has resonance, that is likely to be discussed at the water cooler, neighborhood bar, or family dinner table when persons are engaging in the informal discussions that influence their ultimate voting decision.
220. Political strategists, for example, widely assert that the last-minute infusion of money into the 1996 congressional races saved the House majority for the Republicans and that the Democratic Party's "soft money" ads played a major role in Bill Clinton's reelection bid. 176 There is no clear consensus among empirical researchers as to political advertising's effects. This may be because there are too many variables for accurate measurement. Most studies simply measure voter recall of information contained in ads or use experimental lab studies to determine whether the selected voters like or dislike the ads themselves. See Robert G. Meadow, Political Campaigns, in PUBLIC COMMUNICATION CAMPAIGNS, 259-61 (Ronald E. Rice & Charles Atkin eds., 1990). Whether these studies have any value in predicting voter behavior is difficult to determine. Research does exist that suggests political advertising can be effective - although not always in the sense of motivating substantial numbers of voters to support, or oppose, a particular candidate. Some studies do support the position that there is a direct effect. They contend that specific types of political advertising, specifically negative advertising or eleventh hour advertisements aimed at undecided voters, can directly influence the voter's electoral decision. See Patrick Devlin, Political Commercials in American Presidential Elections, in POLITICAL ADVERTISING IN WESTERN DEMOCRACIES 186, 187 (Lynda Lee Kaid & Christina Holtz-Bacha eds., 1995) (stating that political ads may be instrumental in moving the "swing voters," who are disinterested, late deciding, or undecided voters); Bruce Pinkleton, The Effects of Negative Comparative Political Advertising on Candidate Evaluations and Advertising Evaluations: An Exploration, 26 J. ADVERTISING 19 (1997) (negative ads move voters). Two leading researchers, on the other hand contend that although campaign ads provide information, there is only weak evidence that they directly impact the attitudes and voting behaviors of individuals. See Stephen Ansolabehere & Shanto Iyengar, The Craft of Political Advertising: A Progress Report, in POLITICAL PERSUASION AND ATTITUDE CHANGE 101-18 (Diana C. Mutz et al. eds., 1996). Rather, according to these researchers, political ads primarily provide information and reinforce partisan loyalties. ANSOLABEHERE & IYENGAR, supra note 140, at 2. Ansolabehere and Iyengar do show that negative ads can be directly effective in suppressing voter turnout, a factor that can affect election outcomes. Id. at 9. Other research supports the conclusion that political ads are more subtly effective in influencing voter preferences. First, some research indicates that political advertising can be instrumental in allowing the candidate to set the agenda of the race. See Lynda Lee Kaid, Political Advertising, in HANDBOOK OF POLITICAL COMMUNICATION, 249, 262-63 (Dan D. Nimmo & Keith R. Sanders eds., 1981); cf. IYENGAR & KINDER, NEWS THAT MATTERS (discussing the ability of the media to set the political agenda); David H. Weaver, What Voters Learn from Media, 546 ANNALS AM. ACAD. POL. & SOC. SCI. 34, 37 (1996) (concluding that "[m]ass communications may have little direct effect on opinions and attitudes but a significant cumulative effect on cognitions, especially on the agenda of various topics that voters might have opinions about"). Agenda setting can have an important effect on outcome. In the 1992 Clinton-Bush race, for example, the Clinton campaign, through both paid-media and free-media devices, was able to make the economy the issue, rather than foreign policy. This strategy played into Clinton's perceived strength and Bush's perceived weakness. See William P. Marshall, Free Speech and the "Problem" of Democracy, 89 NW. U. L. REV. 191, 206 (1994). Other research shows that political advertising works in establishing the candidate's initial image and lessening the impact of future attacks by opponents. See Donald T. Cundy, Political Commercials and Candidate Image: The Effect Can be Substantial, in NEW PERSPECTIVES ON POLITICAL ADVERTISING 210-234 (Lynda Lee Kaid et al. eds., 1986). As with agenda setting, this tactic can affect election outcomes. See supra notes 155-56 and accompanying text. Additional support for the claim that political advertising influences voter preferences is the finding that political ads may also play into low-information voting patterns by becoming part of the background information from which voters receive cues. See POPKIN, supra note 172, at 41. An ad stating, for example, that Candidate X is soft on crime might not directly move the viewer, but it is the type of information, if it has resonance, that is likely to be discussed at the water cooler, neighborhood bar, or family dinner table when persons are engaging in the informal discussions that influence their ultimate voting decision.
221. Political strategists, for example, widely assert that the last-minute infusion of money into the 1996 congressional races saved the House majority for the Republicans and that the Democratic Party's "soft money" ads played a major role in Bill Clinton's reelection bid. 176 There is no clear consensus among empirical researchers as to political advertising's effects. This may be because there are too many variables for accurate measurement. Most studies simply measure voter recall of information contained in ads or use experimental lab studies to determine whether the selected voters like or dislike the ads themselves. See Robert G. Meadow, Political Campaigns, in PUBLIC COMMUNICATION CAMPAIGNS, 259-61 (Ronald E. Rice & Charles Atkin eds., 1990). Whether these studies have any value in predicting voter behavior is difficult to determine. Research does exist that suggests political advertising can be effective - although not always in the sense of motivating substantial numbers of voters to support, or oppose, a particular candidate. Some studies do support the position that there is a direct effect. They contend that specific types of political advertising, specifically negative advertising or eleventh hour advertisements aimed at undecided voters, can directly influence the voter's electoral decision. See Patrick Devlin, Political Commercials in American Presidential Elections, in POLITICAL ADVERTISING IN WESTERN DEMOCRACIES 186, 187 (Lynda Lee Kaid & Christina Holtz-Bacha eds., 1995) (stating that political ads may be instrumental in moving the "swing voters," who are disinterested, late deciding, or undecided voters); Bruce Pinkleton, The Effects of Negative Comparative Political Advertising on Candidate Evaluations and Advertising Evaluations: An Exploration, 26 J. ADVERTISING 19 (1997) (negative ads move voters). Two leading researchers, on the other hand contend that although campaign ads provide information, there is only weak evidence that they directly impact the attitudes and voting behaviors of individuals. See Stephen Ansolabehere & Shanto Iyengar, The Craft of Political Advertising: A Progress Report, in POLITICAL PERSUASION AND ATTITUDE CHANGE 101-18 (Diana C. Mutz et al. eds., 1996). Rather, according to these researchers, political ads primarily provide information and reinforce partisan loyalties. ANSOLABEHERE & IYENGAR, supra note 140, at 2. Ansolabehere and Iyengar do show that negative ads can be directly effective in suppressing voter turnout, a factor that can affect election outcomes. Id. at 9. Other research supports the conclusion that political ads are more subtly effective in influencing voter preferences. First, some research indicates that political advertising can be instrumental in allowing the candidate to set the agenda of the race. See Lynda Lee Kaid, Political Advertising, in HANDBOOK OF POLITICAL COMMUNICATION, 249, 262-63 (Dan D. Nimmo & Keith R. Sanders eds., 1981); cf. IYENGAR & KINDER, NEWS THAT MATTERS (discussing the ability of the media to set the political agenda); David H. Weaver, What Voters Learn from Media, 546 ANNALS AM. ACAD. POL. & SOC. SCI. 34, 37 (1996) (concluding that "[m]ass communications may have little direct effect on opinions and attitudes but a significant cumulative effect on cognitions, especially on the agenda of various topics that voters might have opinions about"). Agenda setting can have an important effect on outcome. In the 1992 Clinton-Bush race, for example, the Clinton campaign, through both paid-media and free-media devices, was able to make the economy the issue, rather than foreign policy. This strategy played into Clinton's perceived strength and Bush's perceived weakness. See William P. Marshall, Free Speech and the "Problem" of Democracy, 89 NW. U. L. REV. 191, 206 (1994). Other research shows that political advertising works in establishing the candidate's initial image and lessening the impact of future attacks by opponents. See Donald T. Cundy, Political Commercials and Candidate Image: The Effect Can be Substantial, in NEW PERSPECTIVES ON POLITICAL ADVERTISING 210-234 (Lynda Lee Kaid et al. eds., 1986). As with agenda setting, this tactic can affect election outcomes. See supra notes 155-56 and accompanying text. Additional support for the claim that political advertising influences voter preferences is the finding that political ads may also play into low-information voting patterns by becoming part of the background information from which voters receive cues. See POPKIN, supra note 172, at 41. An ad stating, for example, that Candidate X is soft on crime might not directly move the viewer, but it is the type of information, if it has resonance, that is likely to be discussed at the water cooler, neighborhood bar, or family dinner table when persons are engaging in the informal discussions that influence their ultimate voting decision.
222. Political strategists, for example, widely assert that the last-minute infusion of money into the 1996 congressional races saved the House majority for the Republicans and that the Democratic Party's "soft money" ads played a major role in Bill Clinton's reelection bid. 176 There is no clear consensus among empirical researchers as to political advertising's effects. This may be because there are too many variables for accurate measurement. Most studies simply measure voter recall of information contained in ads or use experimental lab studies to determine whether the selected voters like or dislike the ads themselves. See Robert G. Meadow, Political Campaigns, in PUBLIC COMMUNICATION CAMPAIGNS, 259-61 (Ronald E. Rice & Charles Atkin eds., 1990). Whether these studies have any value in predicting voter behavior is difficult to determine. Research does exist that suggests political advertising can be effective - although not always in the sense of motivating substantial numbers of voters to support, or oppose, a particular candidate. Some studies do support the position that there is a direct effect. They contend that specific types of political advertising, specifically negative advertising or eleventh hour advertisements aimed at undecided voters, can directly influence the voter's electoral decision. See Patrick Devlin, Political Commercials in American Presidential Elections, in POLITICAL ADVERTISING IN WESTERN DEMOCRACIES 186, 187 (Lynda Lee Kaid & Christina Holtz-Bacha eds., 1995) (stating that political ads may be instrumental in moving the "swing voters," who are disinterested, late deciding, or undecided voters); Bruce Pinkleton, The Effects of Negative Comparative Political Advertising on Candidate Evaluations and Advertising Evaluations: An Exploration, 26 J. ADVERTISING 19 (1997) (negative ads move voters). Two leading researchers, on the other hand contend that although campaign ads provide information, there is only weak evidence that they directly impact the attitudes and voting behaviors of individuals. See Stephen Ansolabehere & Shanto Iyengar, The Craft of Political Advertising: A Progress Report, in POLITICAL PERSUASION AND ATTITUDE CHANGE 101-18 (Diana C. Mutz et al. eds., 1996). Rather, according to these researchers, political ads primarily provide information and reinforce partisan loyalties. ANSOLABEHERE & IYENGAR, supra note 140, at 2. Ansolabehere and Iyengar do show that negative ads can be directly effective in suppressing voter turnout, a factor that can affect election outcomes. Id. at 9. Other research supports the conclusion that political ads are more subtly effective in influencing voter preferences. First, some research indicates that political advertising can be instrumental in allowing the candidate to set the agenda of the race. See Lynda Lee Kaid, Political Advertising, in HANDBOOK OF POLITICAL COMMUNICATION, 249, 262-63 (Dan D. Nimmo & Keith R. Sanders eds., 1981); cf. IYENGAR & KINDER, NEWS THAT MATTERS (discussing the ability of the media to set the political agenda); David H. Weaver, What Voters Learn from Media, 546 ANNALS AM. ACAD. POL. & SOC. SCI. 34, 37 (1996) (concluding that "[m]ass communications may have little direct effect on opinions and attitudes but a significant cumulative effect on cognitions, especially on the agenda of various topics that voters might have opinions about"). Agenda setting can have an important effect on outcome. In the 1992 Clinton-Bush race, for example, the Clinton campaign, through both paid-media and free-media devices, was able to make the economy the issue, rather than foreign policy. This strategy played into Clinton's perceived strength and Bush's perceived weakness. See William P. Marshall, Free Speech and the "Problem" of Democracy, 89 NW. U. L. REV. 191, 206 (1994). Other research shows that political advertising works in establishing the candidate's initial image and lessening the impact of future attacks by opponents. See Donald T. Cundy, Political Commercials and Candidate Image: The Effect Can be Substantial, in NEW PERSPECTIVES ON POLITICAL ADVERTISING 210-234 (Lynda Lee Kaid et al. eds., 1986). As with agenda setting, this tactic can affect election outcomes. See supra notes 155-56 and accompanying text. Additional support for the claim that political advertising influences voter preferences is the finding that political ads may also play into low-information voting patterns by becoming part of the background information from which voters receive cues. See POPKIN, supra note 172, at 41. An ad stating, for example, that Candidate X is soft on crime might not directly move the viewer, but it is the type of information, if it has resonance, that is likely to be discussed at the water cooler, neighborhood bar, or family dinner table when persons are engaging in the informal discussions that influence their ultimate voting decision.
223. Political strategists, for example, widely assert that the last-minute infusion of money into the 1996 congressional races saved the House majority for the Republicans and that the Democratic Party's "soft money" ads played a major role in Bill Clinton's reelection bid. 176 There is no clear consensus among empirical researchers as to political advertising's effects. This may be because there are too many variables for accurate measurement. Most studies simply measure voter recall of information contained in ads or use experimental lab studies to determine whether the selected voters like or dislike the ads themselves. See Robert G. Meadow, Political Campaigns, in PUBLIC COMMUNICATION CAMPAIGNS, 259-61 (Ronald E. Rice & Charles Atkin eds., 1990). Whether these studies have any value in predicting voter behavior is difficult to determine. Research does exist that suggests political advertising can be effective - although not always in the sense of motivating substantial numbers of voters to support, or oppose, a particular candidate. Some studies do support the position that there is a direct effect. They contend that specific types of political advertising, specifically negative advertising or eleventh hour advertisements aimed at undecided voters, can directly influence the voter's electoral decision. See Patrick Devlin, Political Commercials in American Presidential Elections, in POLITICAL ADVERTISING IN WESTERN DEMOCRACIES 186, 187 (Lynda Lee Kaid & Christina Holtz-Bacha eds., 1995) (stating that political ads may be instrumental in moving the "swing voters," who are disinterested, late deciding, or undecided voters); Bruce Pinkleton, The Effects of Negative Comparative Political Advertising on Candidate Evaluations and Advertising Evaluations: An Exploration, 26 J. ADVERTISING 19 (1997) (negative ads move voters). Two leading researchers, on the other hand contend that although campaign ads provide information, there is only weak evidence that they directly impact the attitudes and voting behaviors of individuals. See Stephen Ansolabehere & Shanto Iyengar, The Craft of Political Advertising: A Progress Report, in POLITICAL PERSUASION AND ATTITUDE CHANGE 101-18 (Diana C. Mutz et al. eds., 1996). Rather, according to these researchers, political ads primarily provide information and reinforce partisan loyalties. ANSOLABEHERE & IYENGAR, supra note 140, at 2. Ansolabehere and Iyengar do show that negative ads can be directly effective in suppressing voter turnout, a factor that can affect election outcomes. Id. at 9. Other research supports the conclusion that political ads are more subtly effective in influencing voter preferences. First, some research indicates that political advertising can be instrumental in allowing the candidate to set the agenda of the race. See Lynda Lee Kaid, Political Advertising, in HANDBOOK OF POLITICAL COMMUNICATION, 249, 262-63 (Dan D. Nimmo & Keith R. Sanders eds., 1981); cf. IYENGAR & KINDER, NEWS THAT MATTERS (discussing the ability of the media to set the political agenda); David H. Weaver, What Voters Learn from Media, 546 ANNALS AM. ACAD. POL. & SOC. SCI. 34, 37 (1996) (concluding that "[m]ass communications may have little direct effect on opinions and attitudes but a significant cumulative effect on cognitions, especially on the agenda of various topics that voters might have opinions about"). Agenda setting can have an important effect on outcome. In the 1992 Clinton-Bush race, for example, the Clinton campaign, through both paid-media and free-media devices, was able to make the economy the issue, rather than foreign policy. This strategy played into Clinton's perceived strength and Bush's perceived weakness. See William P. Marshall, Free Speech and the "Problem" of Democracy, 89 NW. U. L. REV. 191, 206 (1994). Other research shows that political advertising works in establishing the candidate's initial image and lessening the impact of future attacks by opponents. See Donald T. Cundy, Political Commercials and Candidate Image: The Effect Can be Substantial, in NEW PERSPECTIVES ON POLITICAL ADVERTISING 210-234 (Lynda Lee Kaid et al. eds., 1986). As with agenda setting, this tactic can affect election outcomes. See supra notes 155-56 and accompanying text. Additional support for the claim that political advertising influences voter preferences is the finding that political ads may also play into low-information voting patterns by becoming part of the background information from which voters receive cues. See POPKIN, supra note 172, at 41. An ad stating, for example, that Candidate X is soft on crime might not directly move the viewer, but it is the type of information, if it has resonance, that is likely to be discussed at the water cooler, neighborhood bar, or family dinner table when persons are engaging in the informal discussions that influence their ultimate voting decision.
224. Political strategists, for example, widely assert that the last-minute infusion of money into the 1996 congressional races saved the House majority for the Republicans and that the Democratic Party's "soft money" ads played a major role in Bill Clinton's reelection bid. 176 There is no clear consensus among empirical researchers as to political advertising's effects. This may be because there are too many variables for accurate measurement. Most studies simply measure voter recall of information contained in ads or use experimental lab studies to determine whether the selected voters like or dislike the ads themselves. See Robert G. Meadow, Political Campaigns, in PUBLIC COMMUNICATION CAMPAIGNS, 259-61 (Ronald E. Rice & Charles Atkin eds., 1990). Whether these studies have any value in predicting voter behavior is difficult to determine. Research does exist that suggests political advertising can be effective - although not always in the sense of motivating substantial numbers of voters to support, or oppose, a particular candidate. Some studies do support the position that there is a direct effect. They contend that specific types of political advertising, specifically negative advertising or eleventh hour advertisements aimed at undecided voters, can directly influence the voter's electoral decision. See Patrick Devlin, Political Commercials in American Presidential Elections, in POLITICAL ADVERTISING IN WESTERN DEMOCRACIES 186, 187 (Lynda Lee Kaid & Christina Holtz-Bacha eds., 1995) (stating that political ads may be instrumental in moving the "swing voters," who are disinterested, late deciding, or undecided voters); Bruce Pinkleton, The Effects of Negative Comparative Political Advertising on Candidate Evaluations and Advertising Evaluations: An Exploration, 26 J. ADVERTISING 19 (1997) (negative ads move voters). Two leading researchers, on the other hand contend that although campaign ads provide information, there is only weak evidence that they directly impact the attitudes and voting behaviors of individuals. See Stephen Ansolabehere & Shanto Iyengar, The Craft of Political Advertising: A Progress Report, in POLITICAL PERSUASION AND ATTITUDE CHANGE 101-18 (Diana C. Mutz et al. eds., 1996). Rather, according to these researchers, political ads primarily provide information and reinforce partisan loyalties. ANSOLABEHERE & IYENGAR, supra note 140, at 2. Ansolabehere and Iyengar do show that negative ads can be directly effective in suppressing voter turnout, a factor that can affect election outcomes. Id. at 9. Other research supports the conclusion that political ads are more subtly effective in influencing voter preferences. First, some research indicates that political advertising can be instrumental in allowing the candidate to set the agenda of the race. See Lynda Lee Kaid, Political Advertising, in HANDBOOK OF POLITICAL COMMUNICATION, 249, 262-63 (Dan D. Nimmo & Keith R. Sanders eds., 1981); cf. IYENGAR & KINDER, NEWS THAT MATTERS (discussing the ability of the media to set the political agenda); David H. Weaver, What Voters Learn from Media, 546 ANNALS AM. ACAD. POL. & SOC. SCI. 34, 37 (1996) (concluding that "[m]ass communications may have little direct effect on opinions and attitudes but a significant cumulative effect on cognitions, especially on the agenda of various topics that voters might have opinions about"). Agenda setting can have an important effect on outcome. In the 1992 Clinton-Bush race, for example, the Clinton campaign, through both paid-media and free-media devices, was able to make the economy the issue, rather than foreign policy. This strategy played into Clinton's perceived strength and Bush's perceived weakness. See William P. Marshall, Free Speech and the "Problem" of Democracy, 89 NW. U. L. REV. 191, 206 (1994). Other research shows that political advertising works in establishing the candidate's initial image and lessening the impact of future attacks by opponents. See Donald T. Cundy, Political Commercials and Candidate Image: The Effect Can be Substantial, in NEW PERSPECTIVES ON POLITICAL ADVERTISING 210-234 (Lynda Lee Kaid et al. eds., 1986). As with agenda setting, this tactic can affect election outcomes. See supra notes 155-56 and accompanying text. Additional support for the claim that political advertising influences voter preferences is the finding that political ads may also play into low-information voting patterns by becoming part of the background information from which voters receive cues. See POPKIN, supra note 172, at 41. An ad stating, for example, that Candidate X is soft on crime might not directly move the viewer, but it is the type of information, if it has resonance, that is likely to be discussed at the water cooler, neighborhood bar, or family dinner table when persons are engaging in the informal discussions that influence their ultimate voting decision.
225. See supra note 165 and accompanying text.
226. As applied in Buckley, corruption means the problem of quid pro quo exchanges of political benefits for financial contributions. Buckley v. Valeo, 424 U.S. 1, 26-27 (1976). More broadly, corruption might also be characterized as elected officials foregoing exercising independent judgment on particular matters because of concerns as to how their position might affect future contributions. See Cass R. Sunstein, Political Equality and Unintended Consequences, 94 COLUM. L. REV. 1390, 1391-92 (1994) ("Corruption is inconsistent with the view that public officials should act on the basis of the merits of proposals, and not on the basis of their personal economic interest, or even the interest in increasing their campaign finances.").
227. As applied in Buckley, corruption means the problem of quid pro quo exchanges of political benefits for financial contributions. Buckley v. Valeo, 424 U.S. 1, 26-27 (1976). More broadly, corruption might also be characterized as elected officials foregoing exercising independent judgment on particular matters because of concerns as to how their position might affect future contributions. See Cass R. Sunstein, Political Equality and Unintended Consequences, 94 COLUM. L. REV. 1390, 1391-92 (1994) ("Corruption is inconsistent with the view that public officials should act on the basis of the merits of proposals, and not on the basis of their personal economic interest, or even the interest in increasing their campaign finances.").
228. The Court was concerned that the appearance of corruption could erode the public's confidence in government to a "disastrous extent." Buckley, 424 U.S. at 27. As described by the Court, this rationale would appear quite elastic. See BURT NEUBORNE, THE VALUES OF CAMPAIGN FINANCE REFORM 7 (NYU Brennan Center for Justice, 1997). Indeed, the Court appeared to extend this rationale to political equality concerns in Austin v. Michigan Chamber of Commerce, 494 U.S. 652, 658-59 (1990). See infra note 196. Austin, to this point, however, stands as an anomaly. See Frank J. Sorauf, Politics, Experience, and the First Amendment: The Case of American Campaign Finance, 94 COLUM. L. REV. 1348, 1350 (1994) (criticizing the Court for selecting the narrow definition of corruption instead of the more general interest of protecting the integrity of the electoral process); Buckley has been criticized for understating the severity of the anti-corruption and anti- appearance of corruption concerns. See The Supreme Court, 1975 Term, 90 HARV. L. REV. 56, 171 (1976) (indicating that the Court in Buckley focused too narrowly on quid pro quo corruption).
229. The Court was concerned that the appearance of corruption could erode the public's confidence in government to a "disastrous extent." Buckley, 424 U.S. at 27. As described by the Court, this rationale would appear quite elastic. See BURT NEUBORNE, THE VALUES OF CAMPAIGN FINANCE REFORM 7 (NYU Brennan Center for Justice, 1997). Indeed, the Court appeared to extend this rationale to political equality concerns in Austin v. Michigan Chamber of Commerce, 494 U.S. 652, 658-59 (1990). See infra note 196. Austin, to this point, however, stands as an anomaly. See Frank J. Sorauf, Politics, Experience, and the First Amendment: The Case of American Campaign Finance, 94 COLUM. L. REV. 1348, 1350 (1994) (criticizing the Court for selecting the narrow definition of corruption instead of the more general interest of protecting the integrity of the electoral process); Buckley has been criticized for understating the severity of the anti-corruption and anti- appearance of corruption concerns. See The Supreme Court, 1975 Term, 90 HARV. L. REV. 56, 171 (1976) (indicating that the Court in Buckley focused too narrowly on quid pro quo corruption).
230. The Court was concerned that the appearance of corruption could erode the public's confidence in government to a "disastrous extent." Buckley, 424 U.S. at 27. As described by the Court, this rationale would appear quite elastic. See BURT NEUBORNE, THE VALUES OF CAMPAIGN FINANCE REFORM 7 (NYU Brennan Center for Justice, 1997). Indeed, the Court appeared to extend this rationale to political equality concerns in Austin v. Michigan Chamber of Commerce, 494 U.S. 652, 658-59 (1990). See infra note 196. Austin, to this point, however, stands as an anomaly. See Frank J. Sorauf, Politics, Experience, and the First Amendment: The Case of American Campaign Finance, 94 COLUM. L. REV. 1348, 1350 (1994) (criticizing the Court for selecting the narrow definition of corruption instead of the more general interest of protecting the integrity of the electoral process); Buckley has been criticized for understating the severity of the anti-corruption and anti-appearance of corruption concerns. See The Supreme Court, 1975 Term, 90 HARV. L. REV. 56, 171 (1976) (indicating that the Court in Buckley focused too narrowly on quid pro quo corruption).
231. The Court was concerned that the appearance of corruption could erode the public's confidence in government to a "disastrous extent." Buckley, 424 U.S. at 27. As described by the Court, this rationale would appear quite elastic. See BURT NEUBORNE, THE VALUES OF CAMPAIGN FINANCE REFORM 7 (NYU Brennan Center for Justice, 1997). Indeed, the Court appeared to extend this rationale to political equality concerns in Austin v. Michigan Chamber of Commerce, 494 U.S. 652, 658-59 (1990). See infra note 196. Austin, to this point, however, stands as an anomaly. See Frank J. Sorauf, Politics, Experience, and the First Amendment: The Case of American Campaign Finance, 94 COLUM. L. REV. 1348, 1350 (1994) (criticizing the Court for selecting the narrow definition of corruption instead of the more general interest of protecting the integrity of the electoral process); Buckley has been criticized for understating the severity of the anti-corruption and anti- appearance of corruption concerns. See The Supreme Court, 1975 Term, 90 HARV. L. REV. 56, 171 (1976) (indicating that the Court in Buckley focused too narrowly on quid pro quo corruption).
232. See Askin, supra note 149, at 1079-1080 (discussing the "seductions" of the fundraising process and the increased access the wealthy gain); Blasi, supra note 50, at 1282 (indicating that House members are continually in pursuit of donations and that many Senators begin shortly after election).
233. See Campaign Costs Soar to Record $2.2 Billion: Median 1996 Senate Race: $3.5 Million, CHI. TRIB., Nov. 25, 1997, at A6.
234. See id.
235. See Blasi, supra note 50, at 1283 ("Legislators and aspirants for legislative office who devote themselves to raising money round-the-clock are not in essence representatives."). On the other hand, the more cynical among us might argue that the law of unintended consequences might mean that it is better for the incumbents to spend their days fund raising rather than engaging in other mischief.
236. See Rosenkranz, supra note 154, at 884: The current campaign financing scheme weeds out highly qualified leaders. Talented, brilliant, energetic, committed leaders need not apply if they lack either a trust fund or the will, stomach, capacity, and contacts to raise large sums of money. Senator Robert Kerrey (D-Nebraska) voiced the viewpoint of such would-be candidates: "I've run into far too many men and women who would love to be candidates that just say, 'I don't have enough personal money,' or 'I don't think I can raise the money needed to be credible against an incumbent.'" Id.
237. See supra note 182.
238. See Kenneth J. Levit, Campaign Finance Reform and the Return of Buckley v. Valeo, 103 YALE L.J. 469, 496 (1993) ("it is well established that a high percentage of money is raised . . . to frighten off competition from would be challengers").
239. See Askin, supra note 149, at 1074 (discussing how money sources refused to support his Congressional candidacy unless he demonstrated an ability to raise a minimum of $500,000).
240. See Smith, supra note 6, at 1081 ("the ability to spend unlimited amounts, coupled with restrictions on raising outside money, favors those candidates who can contribute large sums to their own campaigns from personal assets"). David S. Broder, Gingrich's Heresy, WASH. POST, Nov. 14, 1995, at A19 (stating that the Senate has become a millionaires' club).
241. See Smith, supra note 6, at 1081 ("the ability to spend unlimited amounts, coupled with restrictions on raising outside money, favors those candidates who can contribute large sums to their own campaigns from personal assets"). David S. Broder, Gingrich's Heresy, WASH. POST, Nov. 14, 1995, at A19 (stating that the Senate has become a millionaires' club).
242. Actually, the dirty little secret of the campaign finance rules is that the wealthy candidate need not end up out of pocket. He may simply "loan" his campaign the necessary resources and later pay off that loan through contributions received from individuals and PACs. If the candidate wins the race, the chance that he will receive those contributions is considerable.
243. This was one of the reasons why Ross Perot was able to attract a groundswell in early 1992. He was able to fund grassroots activities and to vest his campaign with the image of a populist effort.
244. Three of the biggest all-time spenders, Ross Perot, Al Checci, and Michael Huffington, lost their election bids.
245. In the California gubernatorial primary, for example, Gray Davis used the slogan "experience money can't buy" in order to defeat Al Checci, a wealthy rival who spent $40 million on the race.
246. See Hasen, supra note 158, at 1663.
247. During the 1996 election cycle, House and Senate incumbents received $133,294,257, while challengers received only $28,336,104. Federal Election Commission, Overall Summary of All Senate and House Campaigns Based, on Political Party and Candidate Status (Incumbent, Challenger, and Open Seat) (visited Mar. 14, 2000) .
248. See supra notes 62-90 and accompanying text. A later case, Austin v. Michigan Chamber of Commerce, 494 U.S. 652 (1990), opened the door ever so slightly to the possibility that an equality interest could be recognized. In Austin, the Court upheld a state campaign finance provision that prohibited corporations from using corporate treasury funds for independent expenditures in support of or in opposition to any candidate for state office. The Court explained that such restrictions could be justified as preventing the type of corruption that occurs when "the corrosive and distorting effects of immense aggregations of wealth that are accumulated with the help of the corporate form and that have little or no correlation to the public's support for the corporation's political ideas" are used to influence elections. Id. at 660. Although the Austin Court used the language of corruption, it was clear that the Court was responding to issues of wealth disparity. See Julian N. Eule, Promoting Speaker Diversity: Austin and Metro Broadcasting, 1990 S. CT. REV. 105, 109-10 (1990).
249. See supra notes 62-90 and accompanying text. A later case, Austin v. Michigan Chamber of Commerce, 494 U.S. 652 (1990), opened the door ever so slightly to the possibility that an equality interest could be recognized. In Austin, the Court upheld a state campaign finance provision that prohibited corporations from using corporate treasury funds for independent expenditures in support of or in opposition to any candidate for state office. The Court explained that such restrictions could be justified as preventing the type of corruption that occurs when "the corrosive and distorting effects of immense aggregations of wealth that are accumulated with the help of the corporate form and that have little or no correlation to the public's support for the corporation's political ideas" are used to influence elections. Id. at 660. Although the Austin Court used the language of corruption, it was clear that the Court was responding to issues of wealth disparity. See Julian N. Eule, Promoting Speaker Diversity: Austin and Metro Broadcasting, 1990 S. CT. REV. 105, 109-10 (1990).
250. This is the formulation of the equality interest that was addressed in Buckley v. Valeo, 424 U.S. 1, 48-49 (1976).
251. See Askin, supra note 149, at 1079-80 (quoting former Labor Secretary Robert Reich as stating that politicians only hear directly from the wealthy and only indirectly from the less affluent).
252. This harm may also be characterized as "corruption" if the locus of the problem is placed with the actions of the elected officials rather than with the influence of the wealthy interests. Whether political money actually causes this phenomenon is a matter of considerable debate. Compare Smith, supra note 6, at 1067-71 (arguing contributions have limited effects on legislative behavior) with Marlene Arnold Nicholson, Continuing the Dialogue on Campaign Finance Reform: A Response to Roy Schotland, 21 CAP. L. REV. 463, 463-71 (1992) (arguing wealth interests do affect policy decisions).
253. See Spot Check: A Roundup of Political Advertising, NAT'L J., Nov. 7, 1998 at 2676, 2677 (stating that out of 1,213 ads viewed during the 1998 political campaigns, 438 were negative).
254. See Helen Desfosess, Voters Must Reclaim the Democratic Process, TIMES UNION, Dec. 13, 1998, at E1 ("ads rarely cover the issues, or provide only the briefest of glimpses").
255. For an entertaining account of negative politics in American history, see GAIL COLLINS, SCORPION TONGUES: GOSSIP, CELEBRITY, AND AMERICAN POLITICS (1998).
256. There is an argument, however, that deficiencies in voter knowledge may now indeed be a greater problem than in previous generations even if the level of voter knowledge has generally remained the same. First, the information demands on voters are now greater because more matters are directly submitted to the citizens at the ballot box. Voters, accordingly, must know more information about more subjects in order to exercise their franchise. See King, supra note 143. Second, there may be a greater premium on voter knowledge because of the indirect effect of voters in shaping the political agenda through the public opinion poll. As more public officials, candidates, and political institutions rely on polls to create and effectuate social policy, the more it is necessary for those polls to reflect citizens' understanding of the issues rather than only their intuitive reactions. See CARPINI & KEETER, supra note 141, at 41.
257. According to one study, seventy-five percent of Americans mistrust the government, the highest percentage ever, and twenty-four percent do not believe democracy is working. See Desfosess, supra note 201, at E1.
258. The Supreme Court's recognition of the legitimacy of the governmental interest in avoiding the "appearance of corruption" is, in effect, a recognition of the legitimacy of the interest in combating voter alienation. As the Buckley Court explained in upholding contribution limitations, "Congress could legitimately conclude that the avoidance of the appearance of improper influence 'is also critical . . . if confidence in the system of representative Government is not to be eroded to a disastrous extent." Buckley v. Valeo, 424 U.S. 1, 27 (1976) (citation omitted).
259. In a study over forty-five percent of those surveyed agreed or strongly agreed with the statement, "people like me don't have any say about what the government does." ROPER CENTER FOR PUBLIC OPINION RESEARCH, GENERAL SOCIAL SURVEYS, 1972-1996: CUMULATIVE CODEBOOK 668 (1996).
260. See James Madison, "Government of the United States," published originally in the National Gazette, February 4, 1792: In bestowing the eulogies due to the partitions and internal checks of power, it ought not the less to be remembered that they are neither the sole nor the chief palladium of constitutional liberty. The people, who are the authors of this blessing, must also be its guardians. Their eyes must be ever ready to mark, their voice to pronounce, and their arm to repel or repair aggressions on the authority of their constitutions . . . . Id.
261. In Whitney v. California, 274 U.S. 357 (1927), Justice Brandeis wrote: Those who won our independence believed that the final end of the State was to make men free to develop their faculties; and that in its government the deliberative forces should prevail over the arbitrary. They valued liberty both as an end and as a means. They believed liberty to be the secret to happiness and courage to be the secret of liberty. They believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth; that without free speech and assembly discussion would be futile; that with them, discussion affords ordinarily adequate protection against the dissemination of noxious doctrine; that the greatest menace to freedom is an inert people; that public discussion is a political duty; and that this should be a fundamental principle of the American government. Id. at 375 (Brandeis, J., concurring).
262. JOHN STUART MILL, CONSIDERATIONS ON REPRESENTATIVE GOVERNMENT (1861) (indicating that political participation enables individuals to develop their moral and intellectual abilities).
263. JOHN DEWEY, EXPERIENCE AND NATURE (1925) (arguing that an uninterested electorate may disrupt the workings of democracy because the process is just as important as the result).
264. Whitney v. California, 274 U.S. 357, 375 (1927) (Brandeis, J., concurring).
265. See Pinkleton, supra note 176; Desfosess, supra note 201, at E1.
266. ANSOLABEHERE & IYENGAR, supra note 140, at 9-10 (discussing the cynicism fostered by ads).
267. See id. at 9.
268. See id. at 67.
269. The alienating effects of negative advertising may also be exacerbated by the decrease in other ways in which political communication is disseminated. With the other low information cues of the political culture in decline, the lens of paid advertising has become correspondingly more important as a cue for political understanding. This means that there may be less balance to the political information received by the voter.
270. See graphs at supra note 147; cf. Jeremy Paul, Campaign Reform for the 21st Century: Putting Mouth Where the Money Is, 30 CONN. L. REV. 779 (1998) (citing Albert R. Hunt, Campaign Financing Overhaul is Wanted But Not Passionately, WALL ST. J., Sept. 19, 1997, at R6 (77% say campaigns are excessively influenced by special interests and wealthy contributors while 18% say that they are not)).
271. Compare Hasen, supra note 158, at 1646. This "appearance of inequality" may have real political consequences: when individuals even incorrectly believe that they have little or no political power, their beliefs may lead them to discontinue political action.
272. Buckley v. Valeo, 424 U.S. 1, 27 (1976) (quoting United States Civil Serv. Comm'n v. National Ass'n of Letter Carriers, 413 U.S. 548, 565 (1973)). To this point, the evidence does not indicate that voter alienation is so severe as to be "disastrous." See Stephen Earl Bernnett & David Resnick, The Implications of Nonvoting for Democracy in the United States, 34 AM. J. POL. SCI. 771, 777-87 (1990).
273. See supra note 37.
274. The virtual elimination of patronage has also exacerbated this trend. For the positive side of the end of patronage, see Cynthia Grant Bowman, "We Don't Want Anybody Sent": The Death of Patronage Hiring in Chicago, 86 NW. U. L. REV 57 (1991).
275. The lack of opportunity for citizen participation in political campaigns may also adds to concerns about voter knowledge concerns because it removes an important informational cue - the individual's contact with a campaign or her contact with a colleague, friend, or family member that has a personal contact with a campaign. See POPKIN, supra, note 172.
276. See Dan Schlechter, Eye on the Media - The Media Was No Winner in Elections, NEWSDAY, Nov. 25, 1998, at A42 (indicating only 36.1% of eligible voters voted in 1998).
277. See Federal Energy Regulatory Comm'n v. Mississippi, 456 U.S. 742, 788-91 (1982) (O'Connor, J., concurring in the judgment in part and dissenting in part).
278. See Robert H. Salisbury, Research on Political Participation, 19 AM J. POL. SCI. 323, 326-27 (1975) (referring to political participation as a "legitimizing act").
279. See FRANCIS Fox PEVIN & RICHARD CLOWARD, WHY AMERICANS DON'T VOTE (1989); Charles Krauthammer, Essay: In Praise of Low Voter Turnout, TIME, May 21, 1990, at 88 (stating that "low voter turnout is a leading indicator of contentment").
280. See FRANCIS Fox PEVIN & RICHARD CLOWARD, WHY AMERICANS DON'T VOTE (1989); Charles Krauthammer, Essay: In Praise of Low Voter Turnout, TIME, May 21, 1990, at 88 (stating that "low voter turnout is a leading indicator of contentment").
281. See Bennett & Resnick, supra note 219, at 777-87.
282. See Robert W. Bennett, Democracy as Meaningful Conversation, 14 CONST. COMMENTARY 481 (1997): The paradox is rooted in the 'free rider problem' produced by the ineffectiveness of any individual's vote to determine the outcome of an election. Given this ineffectiveness, each voter, if he is assessing things 'rationally,' should conclude that he might as well stay home (or do something more worthwhile) on election day and leave the voting to ('ride free' on the voting of) others. Id. at 522 (citations omitted). See also Richard L. Hasen, Voting Without Law?, 144 U. PA. L. REV. 2135, 2136 (1996) (noting that given the little effect one vote has on an election, "it often appears rational to abstain from voting").
283. See Robert W. Bennett, Democracy as Meaningful Conversation, 14 CONST. COMMENTARY 481 (1997): The paradox is rooted in the 'free rider problem' produced by the ineffectiveness of any individual's vote to determine the outcome of an election. Given this ineffectiveness, each voter, if he is assessing things 'rationally,' should conclude that he might as well stay home (or do something more worthwhile) on election day and leave the voting to ('ride free' on the voting of) others. Id. at 522 (citations omitted). See also Richard L. Hasen, Voting Without Law?, 144 U. PA. L. REV. 2135, 2136 (1996) (noting that given the little effect one vote has on an election, "it often appears rational to abstain from voting").
284. Id.
285. See PEVIN & CLOWARD, supra note 226, at 13 (1989) (indicating that a number of scholars believe that nonvoting expresses consent and satisfaction).
286. See Marshall, supra note 176.
287. See supra notes 58-60 and accompanying text.
288. Campaign finance is also beset by a more theoretical contradiction. Campaign reform is problematic, as Daniel Ortiz argues, because it rests on a fundamental paradox. The assumption of reform is that it is necessary to empower voters to make rational choices. Presumably, however, if voters are able to make rational choices, they do not need campaign reform to help them see the way clear to their own self-interest. See Daniel R. Ortiz, The Democratic Paradox of Campaign Finance Reform, 50 STAN. L. REV. 893, 893 (1998).
289. See ROBERT A. DAHL, A PREFACE TO DEMOCRATIC THEORY 1 (1956) ("There is no democratic theory - there are only democratic theories."). The closest the Court has come to adopting a set model of democracy is in the one-person, one-vote cases. See Lucas v. Forty-Fourth General Assembly, 377 U.S. 713, 748 (1964) (Stewart, J., dissenting) ("[w]hat the Court has done [in adopting the one-person, one-vote principle] is to convert a particular philosophy into a constitutional rule").
290. See Paul S. Edwards & Nelson W. Polsby, Introduction: The Judicial Regulation of Political Processes - In Praise of Multiple Criteria, 9 YALE L. & POL. REV. 190, 194 (1991) (indicating that no generally accepted theory of democracy exists).
291. States, of course, already regulate, or have the power to regulate, campaign finance in state races.
292. The reason why the states do not currently have the power to regulate the campaign finance of elections to federal office is because Congress has expressly preempted the field. See 2 U.S.C. § 453 (1994) ("The provisions of this Act, and of rules prescribed under this Act, supersede and preempt any provision of State law with respect to election to Federal office.").
293. See U.S. CONST, art. I, § 4, cl. 1. The full text of the Elections Clause is as follows: "The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators."
294. See United States Term Limits, Inc., v. Thornton, 514 U.S. 779 (1995).
295. U.S. CONST, art. I, § 5, cl. 1; see also Powell v. McCormack, 395 U.S. 486 (1969).
296. See, e.g., Storer v. Brown, 415 U.S. 724 (1974) (petition requirements); Fowler v. Adams, 315 F. Supp. 592 (M.D. Fla. 1970) (filing fees).
297. See Issacharoff & Pildes, supra note 133, at 712 ("on political process issues, the incentives of candidates and their parties are frequently aligned").
298. See William P. Marshall, American Political Culture and the Failures of Process Federalism, 22 HARV. J.L. & PUB. POL'Y 139 (1998).
299. The federal officeholder, of course, may decide to take more than a passive role in the state's deliberations and attempt to negotiate for favorable campaign rules.
300. The fact that many state legislators are subject to term limits adds to the possibility that they might be interested in running for federal office because the option of continuing their career in public service at the state level may not be available.
301. A particularly confident aspiring federal officeholder, on the other hand, may desire to keep the entrenchment mechanisms in place so that she might benefit from them when elected.
302. The anti-Washington rationale, moreover, should provide the legislator with cover even if his true goal is to weaken the incumbent's hold on the office for his own political gain.
303. Issacharoff & Pildes, supra note 133, at 710-11 (noting that public choice theory has not yet provided a satisfactory account of the role of political parties in public decisionmaking).
304. For an insightful account of the problems posed by initiatives and referenda, see Julian N. Eule, Judicial Review of Direct Democracy, 99 YALE L.J. 1503, 1527-1530 (1990). As Eule discusses, initiatives and referenda are not favorable vehicles for lawmaking because they lack many of the benefits of legislation. These benefits include: (1) the representation filter (because legislative choices are made by representatives, these representatives are afforded the opportunity for deliberation, debate, reflection, exposure to competing needs, and occasions for transforming preferences, whereas isolated decisions of the referendum initiative process "create few opportunities for trade-offs and little need for the establishment of continuing relationships"); (2) the divided power filter (because legislation is usually passed by multiple bodies, no single body has the power to rule alone); and (3) the entrenched-rights safety net (because there are certain rights that have to be "entrenched - placed beyond the reach of majority preferences, filtered or not," the legislature is restrained by filtering mechanisms such as the amendment process, the division between houses of Congress, and supermajority requirements). Frank Michelman has carried Eule's ideas one step further by questioning whether democracy itself, not just American representative democracy, is compatible with a fully realized direct democracy. He writes that because democracy for Americans entails some guarantees of personal freedom and independence, there must be some limits on the laws that may be created through exercise of a dominant political will. See Frank I. Michelman, "Protecting the People from Themselves," or How Direct Can Democracy Be, 45 UCLA L. REV. 1717, 1733 (1998). See also Derrick A. Bell, Jr., The Referendum: Democracy's Barrier to Racial Equality, 54 WASH. L. REV. 1 (1979) (the more direct democracy becomes, the more it threatens unpopular minorities); Jane S. Schacter, The Pursuit of "Popular Intent": Interpretive Dilemmas in Direct Democracy, 105 YALE L.J. 107 (1995) (discussing the "inability of citizen lawmakers to deliberate about, or to amend, proposed ballot measures"). Schacter also argues that because "voters are not professional lawmakers, so it is problematic to impute to the electorate the same knowledge about law, legal terminology, and legislative context that courts routinely ascribe - if sometimes only as aspiration - to legislators." Id. at 110.
305. For an insightful account of the problems posed by initiatives and referenda, see Julian N. Eule, Judicial Review of Direct Democracy, 99 YALE L.J. 1503, 1527-1530 (1990). As Eule discusses, initiatives and referenda are not favorable vehicles for lawmaking because they lack many of the benefits of legislation. These benefits include: (1) the representation filter (because legislative choices are made by representatives, these representatives are afforded the opportunity for deliberation, debate, reflection, exposure to competing needs, and occasions for transforming preferences, whereas isolated decisions of the referendum initiative process "create few opportunities for trade-offs and little need for the establishment of continuing relationships"); (2) the divided power filter (because legislation is usually passed by multiple bodies, no single body has the power to rule alone); and (3) the entrenched-rights safety net (because there are certain rights that have to be "entrenched - placed beyond the reach of majority preferences, filtered or not," the legislature is restrained by filtering mechanisms such as the amendment process, the division between houses of Congress, and supermajority requirements). Frank Michelman has carried Eule's ideas one step further by questioning whether democracy itself, not just American representative democracy, is compatible with a fully realized direct democracy. He writes that because democracy for Americans entails some guarantees of personal freedom and independence, there must be some limits on the laws that may be created through exercise of a dominant political will. See Frank I. Michelman, "Protecting the People from Themselves," or How Direct Can Democracy Be, 45 UCLA L. REV. 1717, 1733 (1998). See also Derrick A. Bell, Jr., The Referendum: Democracy's Barrier to Racial Equality, 54 WASH. L. REV. 1 (1979) (the more direct democracy becomes, the more it threatens unpopular minorities); Jane S. Schacter, The Pursuit of "Popular Intent": Interpretive Dilemmas in Direct Democracy, 105 YALE L.J. 107 (1995) (discussing the "inability of citizen lawmakers to deliberate about, or to amend, proposed ballot measures"). Schacter also argues that because "voters are not professional lawmakers, so it is problematic to impute to the electorate the same knowledge about law, legal terminology, and legislative context that courts routinely ascribe - if sometimes only as aspiration - to legislators." Id. at 110.
306. For an insightful account of the problems posed by initiatives and referenda, see Julian N. Eule, Judicial Review of Direct Democracy, 99 YALE L.J. 1503, 1527-1530 (1990). As Eule discusses, initiatives and referenda are not favorable vehicles for lawmaking because they lack many of the benefits of legislation. These benefits include: (1) the representation filter (because legislative choices are made by representatives, these representatives are afforded the opportunity for deliberation, debate, reflection, exposure to competing needs, and occasions for transforming preferences, whereas isolated decisions of the referendum initiative process "create few opportunities for trade-offs and little need for the establishment of continuing relationships"); (2) the divided power filter (because legislation is usually passed by multiple bodies, no single body has the power to rule alone); and (3) the entrenched-rights safety net (because there are certain rights that have to be "entrenched - placed beyond the reach of majority preferences, filtered or not," the legislature is restrained by filtering mechanisms such as the amendment process, the division between houses of Congress, and supermajority requirements). Frank Michelman has carried Eule's ideas one step further by questioning whether democracy itself, not just American representative democracy, is compatible with a fully realized direct democracy. He writes that because democracy for Americans entails some guarantees of personal freedom and independence, there must be some limits on the laws that may be created through exercise of a dominant political will. See Frank I. Michelman, "Protecting the People from Themselves," or How Direct Can Democracy Be, 45 UCLA L. REV. 1717, 1733 (1998). See also Derrick A. Bell, Jr., The Referendum: Democracy's Barrier to Racial Equality, 54 WASH. L. REV. 1 (1979) (the more direct democracy becomes, the more it threatens unpopular minorities); Jane S. Schacter, The Pursuit of "Popular Intent": Interpretive Dilemmas in Direct Democracy, 105 YALE L.J. 107 (1995) (discussing the "inability of citizen lawmakers to deliberate about, or to amend, proposed ballot measures"). Schacter also argues that because "voters are not professional lawmakers, so it is problematic to impute to the electorate the same knowledge about law, legal terminology, and legislative context that courts routinely ascribe - if sometimes only as aspiration - to legislators." Id. at 110.
307. See Klarman, supra note 24, at 510 (discussing how legislative entrenchment was overcome by referenda on the issue of term limits).
308. Inseverability provisions can also guard against Buckley-type results, but they are also problematic in that the high vulnerability of campaign finance regulation to constitutional attack means that there are few comprehensive campaign reform schemes, if any, that would be likely to survive constitutional review.
309. Although federal laws can be compared to state laws for their efficacy (even if the state laws regulate only state officeholders), the comparison would not be as sharp because the dynamics of state races are very different from federal races.
310. Indeed, in any event, legislative action generally moves faster at the state level than at the local level.
311. Finally, although this point obviously cuts both ways, congressional intervention and constitutional review are available remedies if the problems become too severe. The problem with the former, of course, is that it defeats the purpose of decentralization. The problem with the latter is that judicial intervention is often a cause of unintended consequences.
312. Notably, at least one Justice has argued for the desirability of new legislative efforts to regulate campaign finance in order to promote a considered judicial evaluation of the First Amendment interests at stake. See Nixon v. Shrink Missouri Government PAC, No. 98-963 2000 WL 48424 at *19 (U.S. Jan. 24, 2000) (Kennedy, J., dissenting).
313. When evaluating the constitutionality of campaign finance restrictions, there should not be a greater deference to restrictions enacted at the state, rather than at the federal, level. An argument for such an approach could be constructed based upon Justice Harlan's opinions in the obscenity cases. See Jacobellis v. Ohio, 378 U.S. 184, 204 (1974) (Harlan, J., dissenting); Roth v. United States, 354 U.S. 476, 497 (1957) (Harlan, J., dissenting). Harlan's argument was based in part on the need for experimentation in a difficult area, an argument that applies also to campaign finance. Nevertheless, there are strong arguments for keeping First Amendment protections fully in place in this area - aside from that fact that accepting Justice Harlan's approach would begin to rewrite the first amendment. First, campaign finance regulations operate in an area in which judicial review is particularly warranted. The problem of legislative self-dealing (even if tempered by decentralization) argues strongly against an added layer of deference based on the locus of the regulatory decisionmaker. See JOHN HART ELY, DEMOCRACY AND DISTRUST (1980). Second, as Buckley correctly maintains, campaign finance regulation affects activity at the core of the first amendment. See supra notes 107-16 and accompanying text.
314. As we shall see subsequently, integration may also further the value of fostering experimentation with new proposals because it would increase the number of regulatory components that could be entered into the regulatory mix.
315. Colorado, for example, allows candidates to opt between a primary and a party convention selection process. See How Nominees are Chosen, WASH. POST, Mar. 30, 1985, at B7.
316. Reducing the number of elected offices might also make fund-raising easier (and therefore less time consuming) because a reduced candidate pool would lessen the competition for donor dollars.
317. Compare Michael A. Fitts, The Vices of Virtue: A Political Party Perspective on Civic Virtue Reforms of the Legislative Process, 136 U. PA. L. REV. 1567, 1603-09 (1988) (discussing the benefits of strengthening the political parties) and Richard L. Hasen, Entrenching the Duopoly: Why the Supreme Court Should Not Allow the States to Protect the Democrats and Republican from Political Competition, 1997 SUP. CT. REV. 331, 355-62 (questioning the benefits of the political parties).
318. Compare Michael A. Fitts, The Vices of Virtue: A Political Party Perspective on Civic Virtue Reforms of the Legislative Process, 136 U. PA. L. REV. 1567, 1603-09 (1988) (discussing the benefits of strengthening the political parties) and Richard L. Hasen, Entrenching the Duopoly: Why the Supreme Court Should Not Allow the States to Protect the Democrats and Republican from Political Competition, 1997 SUP. CT. REV. 331, 355-62 (questioning the benefits of the political parties).
319. The strength of this point is weakened, of course, by the fact that states already regulate the campaign finance issues in state races and therefore should already considering the tradeoffs.
320. Cf. Neuborne, supra note 98 (calling for both campaign finance reform and the weakening of political parties).
321. Expanding the voter pool by such devices as the motor-voter law also increases campaign costs, especially if the expansion includes voters who are hard to reach.
322. See David W. Adamany & George E. Agree, Political Money, in ELECTION LAW 487 (Lowenstein ed., 1995) (discussing the effect of the decline of party organizations on campaign costs).
323. See generally Stephen E. Gottlieb, Election Reform Objectives - Match or Mismatch?, 9 YALE L. & POL'Y REV. 205, 216-17 (1991) (appealing for the return of a strong party system in order to return power to voters).
324. Federal Energy Regulatory Comm'n v. Mississippi, 456 U.S. 742, 788-91 (1982) (O'Connor, J., concurring in the judgment in part and dissenting in part) (cited in Akhil Reed Amar, Five Views of Federalism: "Converse-1983" in Context, 47 VAND. L. REV. 1229, 1233-34 (1994)).
325. Amar, supra note 266, 1233-34 (citing de Tocqueville).
326. See id. at 1234.
327. See Steven G. Calabresi, "A Government of Limited and Enumerated Powers": In Defense of United States v. Lopez, 94 MICH. L. REV. 752, 775 (1995) (discussing responsiveness to local tastes and conditions as a value of federalism).
328. In addition to the advantage of sheer numbers (50 to 1), the states would be better positioned to engage in experimentation than would the federal government because integrating campaign regulation means that there would be more components to mix and match within the regulatory structure This would allow more opportunity to construct creative solutions.
329. New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting).
330. As we have discussed, reforms that intend to reduce the level of money in politics have harmed the interests in increasing campaign competitiveness, voter participation, and voter knowledge.
331. A reform effort aimed at increasing grassroots activity, for example, would look far different than one aimed at curbing the appearance of corruption created by sizeable contributions. The former proposal would likely have something akin to the "soft money" loophole. The latter presumably would not.
332. See supra Section III.B.3.
333. Conversely, the lack of consensus is also a reason for decentralized (or multiple) approaches. See Edwards & Polsby, supra note 235, at 194 (1991) ("A defensible regulatory regime should take account of the lack of common ground on . . . fundamental theoretical issues.").
334. Even if the Court continues to reject the validity of the political equality interest, the "appearance of corruption" rationale may allow equality interests to come in through the back door. See supra note 179.
335. California Prolife Council PAC v. Scully, 989 F. Supp. 1282, 1292 (1998), aff'd 164 F.3d 1189 (9th Cir. 1999). The statute at issue in Scully prohibited persons "from contributing more than $100 per election in small local districts (less than 100,000 residents), $250 per election for Senate, Assembly, Board of Equalization, and large local districts, and $500 per election for statewide office. These limits are increased to $250, $500, and $1,000, respectively, for candidates who agree to specified expenditure limits."
336. 504 U.S. 191 (1992).
337. 523 U.S. 666 (1998).
338. For example, regulation on PAC contributions has led to an increase in independent expenditures and has made regulation more difficult due to the increased complexity of the law. See MALBIN & GAIS, supra note 47, at 89, 101.
339. See Suster v. Marshall, 149 F.3d 523 (6th Cir. 1998) (invalidating an Ohio Court rule that prohibited any judicial candidate from spending more than $75,000 in a general election race for judgeship for the Ohio Common Pleas Court and $18,750 in a primary); Kruse v. City of Cincinnati, 142 F.3d 907 (6th Cir. 1998) (invalidating expenditure cap, limited to three times the annual salary of the position, on campaigns for city council).
340. While it is true that state regulation of presidential campaigns is not now uniform in matters such as filings fees and petition requirements, the problems that would arise if campaign finance regulation were set at the state level would present a new degree of difficulty, particularly with respect to accounting for expenditures relative to national network advertising. Another problem would be apportioning the costs incurred at the candidate's national headquarters to each state.
341. Even the most ardent campaign finance deregulators support reporting and disclosure requirements. See H.R. 965, 105th Cong. (1997) (seeking to replace current campaign finance restrictions with only disclosure requirements).
342. See Thomas Mann, Implementing and Enforcing Federal Campaign Finance Law, in CAMPAIGN FINANCE REFORM 277-80 (Anthony Corrado et al. eds., 1997) (discussing the constraints on FEC enforcement).
343. But see In re Neagle, 135 U.S. 1 (1890) (state prosecution for murder brought against a deputy United States marshal who had killed a man in the line of duty).
344. The fact that state campaign finance laws generally provide protections against political abuse offers some comfort.
345. One option might be to create a removal provision for federal candidates and incumbents charged with campaign finance violations. See 28 U.S.C. § 1442 (1994).
346. See 2 U.S.C. § 441a(a)(3) (1994) (limiting total yearly contributions to $25,000).
347. See supra note 5.
348. See 47 U.S.C. § 315(b)(1) (1994) (requiring that broadcasters charge political candidates the lowest unit charge for the same class and amount of time available during the 45 days preceding the date of a primary or primary runoff election, and during the 60 days preceding the date of a general or special election in which such person is a candidate).
349. See Douglas C. Melcher, Free Air Time for Political Advertising: An Invasion of the Protected First Amendment Freedoms of Broadcasters, 67 GEO. WASH. L. REV. 100 (1998) (questioning the constitutionality of free air time); but see Susan M. Zwerling, Reclaiming a Public Resource: The Constitutionality of Requiring Broadcasters to Provide Free Television Advertising Time to Candidates for Federal Office, 18 N.Y.U REV. L. & SOC. CHANGE 213, 236-39 (1990-1991) (arguing that free air time is constitutional).
350. See Douglas C. Melcher, Free Air Time for Political Advertising: An Invasion of the Protected First Amendment Freedoms of Broadcasters, 67 GEO. WASH. L. REV. 100 (1998) (questioning the constitutionality of free air time); but see Susan M. Zwerling, Reclaiming a Public Resource: The Constitutionality of Requiring Broadcasters to Provide Free Television Advertising Time to Candidates for Federal Office, 18 N.Y.U REV. L. & SOC. CHANGE 213, 236-39 (1990-1991) (arguing that free air time is constitutional).
351. Alternative proposals condition the grant of free advertising to the candidate's agreeing to expenditure limitations.
352. It would be difficult to draft around this problem. While it might be possible to give the states the authority to impose free television advertising requirements on broadcast media within their borders, the fact is that, in many cases, the target stations are in neighboring states.
353. For this reason, for example, the 1974 Act and many subsequent campaign reform proposals have specifically proposed different expenditure formulas for different states.
354. See Erwin Chemerinsky, The Values of Federalism, 47 FLA. L. REV. 499, 527 (1995) (indicating that there is a greater danger of special interests capturing government at smaller and more local levels); Edward L. Rubin & Malcolm Feeley, Federalism: Some Notes on a National Neurosis, 41 UCLA L. REV. 903, 935 (1994) (same).
355. See Erwin Chemerinsky, The Values of Federalism, 47 FLA. L. REV. 499, 527 (1995) (indicating that there is a greater danger of special interests capturing government at smaller and more local levels); Edward L. Rubin & Malcolm Feeley, Federalism: Some Notes on a National Neurosis, 41 UCLA L. REV. 903, 935 (1994) (same).
356. Accordingly, one response to this argument is that it is, in effect, an argument for federal campaign finance regulation of state races. Cf. Marlene Arnold Nicholson, Buckley v. Valeo: The Constitutionality of Federal Election Campaign Act Amendments of 1974, 1977 WIS. L. REV. 323 (advocating federal campaign finance regulation of state races if states to provide their own regulation).
357. MALBIN & GAIS, supra note 47 (discussing the state campaign reform experience).
358. This possibility, however, must also be discounted by the fact that the transaction costs imposed on interest groups by having to act in all fifty state arenas would be considerable. See Jonathan R. Macey, Federal Deference to Local Regulators and the Economic Theory of Regulation: Toward a Public-Choice Explanation of Federalism, 76 VA. L. REV. 265, 271 (1990) (observing that "[i]t is simply less expensive to obtain passage of one federal statute than to obtain passage of fifty state statutes").