Academic journal article
By Rosenkranz, E. Joshua; Hasen, Richard L.
Texas Law Review , Vol. 77, No. 7
"Money, Politics, and Equality." A curious triumvirate. The first two elements-money and politics-have gone hand in hand, probably for as long as the two have coexisted. A century ago, Ohio political boss Mark Hanna declared: "There are two things that are important in politics. The first is money . . . and I can't remember what the second one is." We can be fairly certain that he did not have equality in mind.
Yet politics and equality pair naturally, too. Political equality has a distinguished history in our democracy. Our country was founded on the principle that "all men are created equal." Ours was the first nation to breathe life into the notion of a government "of the people, by the people, and for the people." The guarantee of equal protection, revolutionary as it was when it was first grafted onto the Constitution, is now a bulwark of our democracy, as is the principle, adopted by the Supreme Court almost a century later, of "one person, one vote."
It is only when we endeavor to complete the triangle-when we strive to reconcile the role of money in politics with our commitment to political equality-that we face an apparently insoluble puzzle. On the one hand, the tradition of political equality on which this nation was built would seem to fit comfortably with rules directed at ensuring that individuals or groups could not, just by virtue of their wealth, exert vastly disproportionate influence on elections or on elected officials. On the other hand, we have an equally venerable tradition insisting that individuals within our capitalist society generally may use their wealth as they please. So long as our elected officials are in a position to influence the allocation of wealth, individuals will always have an incentive to use their economic advantage to influence elections and elected officials.
Reformers long have advocated various means to take money out of the process of choosing candidates for political office. Indeed, political equality is the premise underlying many campaign finance regulations and proposed reforms. How else to explain proposals to cap the spending of the Ross Perots, Michael Huffingtons, and Steve Forbeses of the worldfigures with no political base and less political experience, who become formidable political candidates only by dint of their money? And how else to explain the fad in the early 1990s of passing low contribution limits at, say, the $100 level? Maybe some proponents truly believed that a $101 contribution might actually corrupt a gubernatorial candidate. Admit it or not, though, many reformers were motivated at least in part by a yearning for equality-by a belief that if they or their neighbors could not afford to pay more than $100 to support a candidate, no one else ought to be allowed to do so either.
Proponents of these sorts of reforms tend not to admit that political equality is their goal, opting instead to couch their arguments in terms of corruption, integrity, public confidence, and undue distraction-anything but equality. Why the caginess? Because the Supreme Court, in its landmark 1976 case, Buckley v. valeo,1 held that equality is not a legitimate ground for restricting the flow of money into politics. At least when it comes to spending limits, the Supreme Court famously declared, "the concept that government may restrict the speech of some elements of our society in order to enhance the relative voices of others is wholly foreign to the First Amendment."2
On the other hand, the Supreme Court held, the government may restrict speech in the interest of preventing corruption or the appearance of corruption, which is now the accepted justification for contribution limits.3 So Buckley leaves us with a jurisprudential landscape that forces proponents of reform to cast their proposals as anticorruption devices rather than as measures to equalize political power.
Since Buckley, the Supreme Court has not retreated from its insistence that political equality is out of bounds as a justification for limiting the flow of money into politics. …