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By Root 980 0

” California Law Review 73 (1985): 1045; Bradley A. Smith, “Faulty Assumptions and Undemocratic Consequences of Campaign Finance Reform,” Yale Law Journal 105 (1996): 1049; David A. Strauss, “Corruption, Equality, and Campaign Finance Reform,” Columbia Law Review 94 (1994): 1369; Edward B. Foley, “Equal-Dollars-Per-Voter: A Constitutional Principle of Campaign Finance,” Columbia Law Review 94 (1994): 1204; Richard L. Hasen, “Clipping Coupons for Democracy: An Egalitarian/Public Choice Defense of Campaign Finance Vouchers,” California. Law Review 84 (1996): 1; Daniel Hays Lowenstein, “On Campaign Finance Reform: The Root of All Evil Is Deeply Rooted,” Hofstra Law Review 18 (1989): 301; Fred Wertheimer and Susan Weiss Manes, “Campaign Finance Reform: A Key to Restoring the Health of Our Democracy,” Columbia Law Review 94 (1994): 1126; Andrea Prat, “Campaign Spending with Office-Seeking Politicians, Rational Voters, and Multiple Lobbies,” Journal of Economic Theory 103 (Mar. 2002): 162; Stephen Coate, “Pareto-Improving Campaign Finance Policy,” American Economic Review 94 (June 2004): 628; Lillian R. BeVier, “Campaign Finance Reform: Specious Arguments, Intractable Dilemmas,” Columbia Law Review 94 (1994): 1258; Bradley A. Smith, “Money Talks: Speech, Corruption, Equality, and Campaign Finance,” Georgetown Law Journal 86 (1997): 45; Daniel R. Ortiz, “The Democratic Paradox of Campaign Finance Reform,” Stanford Law Review 50 (1997): 893; Kathleen M. Sullivan, “Against Campaign Finance Reform,” Utah Law Review (1998): 311; and Spencer Overton, “Donor Class: Campaign Finance, Democracy, and Participation,” University of Pennsylvania Law Review 153 (2004): 73.

The proposal I advance here is focused less on restricting speech than the reforms criticized by Smith and BeVier. It shares the concern with corruption advanced by Lowenstein. Like Issacharoff and Karlan, I view the challenge as dynamic: What is the economy of influence reform will produce? Like Sullivan, I avoid reforms that would restrict important First Amendment values. And like Overton, I believe a key value must be the promotion of participation. Strauss brilliantly demonstrates how corruption, which is a derivative concept, derived from a concern about unequal power in the electoral speech market. As my analysis makes clear, however, while I agree with his diagnosis, I believe it is a mistake to frame the concern as one of equality alone. As I describe, equality, too, is a derivative concept, derived from the notion of a democracy “dependent upon the People alone.”

4. As will be clear, the mode of reform that I am pushing does not “call for greater regulation” of speech. See Issacharoff and Karlan, “The Hydraulics of Campaign Finance Reform,” 1711, as I share their concern that such reforms “exacerbate the already disturbing trend toward politics being divorced from the mediating influence of candidates and political parties.” Ibid, 1714. The thrust of the reforms I advance here would increase the available speech resources within an election, and does not depend upon restricting the speech of anyone.

5. David Leonhardt, “Who Doesn’t Pay Taxes?” New York Times Economix Blog (April 13, 2010), available at link #224; see also Congressional Budget Office, Historical Effective Federal Tax Rates: 1979–2006 (April 2009), available at link #225.

6. For readers of Bruce Ackerman and Ian Ayres, Voting with Dollars, this solution will seem familiar. I draw heavily upon their insights, though the contours to my framework are different. The idea of a voucher was also described extensively by Richard Hasen in “Clipping Coupons for Democracy.” Hasen distinguishes between a “level[ing]-up” and a “level[ing]-down” approach. Ibid., 20. A voucher system is the former; limits on expenditures or contributions are the latter. Hasen’s own proposal mixes both. Ibid., 20–27, though he wrote this before the Court made it clear that Congress has no power to limit independent campaign expenditures in the name of “equality.” Ibid., 39–44. See Citizens United v. Fed. Election Comm