The Hydraulics of Campaign Finance Reform
Issacharoff, Samuel, Karlan, Pamela S., Texas Law Review
Electoral reform is a graveyard of well-intentioned plans gone awry. It doesn't take an Einstein to discern a First Law of Political Thermodynamics-the desire for political power cannot be destroyed, but at most, channeled into different forms-nor a Newton to identify a Third Law of Political Motion-every reform effort to constrain political actors produces a corresponding series of reactions by those with power to hold onto it.
Consider a few simple examples. The Supreme Court finally broke the lockhold of the self-interested refusal to redistrict in the landmark Baker and Reynolds decisions.' Three decades later, however, the political gerrymander is not only alive and well; it has assumed the role of an institutionalized industry that seems largely immune from substantive review.2 Similarly, the Court's jurisprudence under the Equal Protection Clause3 and the Voting Rights Act of 19654 was intended to dampen the effect of racial polarization and to allow for a more inclusive system of representation. But the combined effect of searching judicial review for race-based claims and muted standards of review for claims of partisan exclusion has led to the recasting of essentially political challenges born of electoral frustration as racial ones.5 Far from diminishing the role of race in politics, current doctrine may exacerbate it.
No area, however, can top the aborted reform agenda of the Federal Election Campaign Act Amendments of 1974,6 as truncated by Buckley v. Valeo,' for their paradoxical ability to bring about perverse consequences. A quarter-century after FECA, the conventional view is that American politics is more vacuous, more money driven, more locked up than ever.8 Campaign finance reform is now its own cottage industry with innumerable proposals for statutory and constitutional change and corresponding debates about how some immaculate vision of politics can be forged.9
Most of the legal-academic debate about campaign finance begins with Buckley and its progeny and focuses on whether and to what extent additional regulation comports with the First Amendment.'o Unfortunately, the debate often stops there as well. Because many of the participants in the campaign finance debate are relatively unfamiliar with the more general history of electoral reform or are largely uninterested in the practical details of political regulation, their proposals offer only a static analysis of a dynamic process. They ignore the central lesson of the post-Watergate experience: political money-that is, the money that individuals and groups wish to spend on persuading voters, candidates, or public officials to support their interests-is a moving target.
This article takes a sharply different tack, heeding Deep Throat's advice to "follow the money"' rather than grand constitutional principles. On a pragmatic level, such advice leads us to ask where political money will go if the reformers succeed. Both logic and past experience provide reason to worry that, once the dust settles, the current proposals may increase, rather than dampen, the role of money in politics.'2 Even worse, because the reforms may further undermine the capacity of candidates and political parties to shape the electoral agenda, they could exacerbate the very political pathologies they are designed to combat.'3 Far from making politics more accountable to democratic control, they may make it less so.
On a more fundamental level, Deep Throat's admonition bids us to trace far more precisely how political money works its way through the system. The calls for reform all stem from the assertion that money corrupts the electoral process. But when we press on the concept of "corruption," we are faced with two additional paradoxes. First, for all the rhetorical focus on money's role in corrupting candidates and elected officials, the critical problem turns out to be that political money corrupts voters.4 The consequence of this thicker account of corruption is to prevent the case for reform from being made along purely egalitarian lines. …