When Americans register to vote, they should be issued a credit card by a special public company-- call it the Patriot card and color it red, white, and blue. This card will become the basis of campaign finance.
Suppose each voter's card were automatically credited with a $10 balance for the 1996 presidential election. To gain access to this red-white-and blue money, candidates should be obliged to demonstrate significant popular support by gathering an appropriate number of voter signatures. In exchange for these signatures, the PAtriot company would open an account that grated the candidate an initial balance of red-white-and blue money-- say, one million dollars for presidential aspirants. Candidates could then spend their initial stake on a series of advertisements to convince Patriot holders to transfer more red-white-and-blue money to them. Some candidates will, of course, soon see their initial Patriot balance shrink to zero; others will generate tens of millions as the campaign proceeds.
Under this system, only red-white-and-blue money may be used to finance political campaigns. The use of greenbacks would be treated as a form of corruption similar to the use of greenbacks to buy votes.
A democratic market society must confront a basic tension between its ideal of equal citizenship and the reality of market inequality. It does so by drawing a line, marking a political sphere within which the power relationships of the market are kept under democratic control. Over the past 150 years, Americans have taken two large steps in this direction. The first, completed during the age of Andrew Jackson, was the abolition of property requirements for voting. The second development, the secret ballot, came a half-century later. Before this reform, people could buy your vote and hold you to your bargain by watching you at the polling place. Even if you refused a bribe, you were subject to retaliation from your employer or other rich folk. Only with the rise of the secret ballot, in the late nineteenth century, did Americans begin to build a political sphere that was insulated from the inequalities of the market.
Since then, we have been trying to take the next step. Just as the nineteenth century made it tough to buy votes, the twentieth has tried to make it hard to buy candidates--most recently in the 1974 amendments to the Federal Election Campaign Act. Yet these efforts have been painfully ineffective; they have even backfired.
This failure has had multiple causes: the power of vested interests, underlying uncertainties about the ideal relationship between liberty and equality, and between money and speech. But there is another cause as well--primitive regulatory thinking. For too long, debate has focused on two strategies: (1) limit the kinds and amounts of private money introduced into the system; (2) add government funds dispensed by a centralized bureaucratic agency.
But there is a third way, which deploys an increasingly familiar reform technique: the voucher. From welfare to education to health care, voucher proponents make the same basic point. The alternative to a market is not necessarily a slow-moving and potentially oppressive bureaucracy. If the root of the difficulty is extreme inequality, a voucher system permits the creation of a new currency, distributed on more egalitarian lines, that retains many other advantages of a market system.
Consider how the two traditional reform strategies combine to create insuperable obstacles to effective action. By restricting the amount of green money sloshing through the system, we create two big problems. Most obviously, we have reduced the amount of political debate. While money isn't speech, it makes effective speech possible, especially in an age of mass media. This generates anxious doubts. Egalitarian reformers begin to seem grimly repressive. Do we really want equality at the cost of shutting down debate?
Restricting the flow of cash may also skew the balance of power between incumbents and their challengers. Incumbents go into each campaign with the accumulated reputation they have generated through years of great visibility. Challengers need lots of cash to offset this advantage. By placing an overall limit on funds, aren't we allowing old-timers to tighten their grip on office under the banner of "reform"?
These questions endure despite the second traditional strategy: government finance through a centralized bureaucracy, which typically gives established parties a privileged position at the federal trough. Worse, the present system of public financing has not stemmed the flow of private finance; it has only diverted it into new and more insidious channels of "soft money" and has left the large donor and the large fundraiser more influential than ever. Moreover, present law allows well-heeled candidates like Ross Perot and John Connolly to buy their way to the White House so long as they turn down the subsidy.
These loopholes erode the moral foundations of reform. Despite public financing, presidential politics continues to be a rich person's game. The loopholes permit the resurgence of special interest influence. They generate corrosive skepticism among ordinary people. And yet it is too easy to condemn the loopholes outright. At least they provide an escape hatch against the worst possible abuses of centralized public finance: Do we really want politicians to be entirely dependent upon the good will of government bureaucrats for financial assistance in their hour of electoral need?
Adoption of Patriot permits a straightforward answer that encourages decisive steps against corrosive loopholes. The new system controls the undue influence of wealth without transferring power from the general citizenry to an imperial bureaucracy. Under the proposal, the Patriot company would distribute a sum of red-white-and-blue money to cardholders that, when summed, will be greater than the total spent in the last election held under the green money regime. For example, if $10 in red-white-and-blue money were distributed to each of America's 130 million registered voters, the $1.3 billion deposited in Patriot accounts would quadruple the total sum spent by all presidential candidates in 1992. Even if lots of people never used their Patriot cards, more money would still be running through the system than previously without the heavy hand of bureaucratic direction.
Patriot also generates a much more egalitarian distribution of financial power than anything promised by traditional spending limitations. Those ceilings may cut down on the influence of very rich people and interests. They do nothing to confront the fact that the overwhelming majority of citizens give nothing to political campaigns, and that the small percentage who contribute are overwhelmingly from the upper classes. Under green money, Americans decide whether they are willing to send a $10 check to the Republican or Democratic candidate at the expense of an extra shirt for their six-year-old. Compare Patriot. Rather than pitting an act of citizenship against an act of private consumption, the voucher system presents a different choice: Do citizens want their Patriot balances "to go to waste" or do they want to take the time to decide which candidate should get the money?
The voucher plan transforms campaign finance from an inegalitarian embarrassment into a new occasion for civic responsibility. Each Patriotic decision will serve as a preliminary vote, encouraging card-holders to focus on the campaign as it develops and support the candidates of their choice at the time of their choice. These tens of millions of decentralized decisions replace acts of centralized authority that bulk large in the traditional subsidy proposals. Rather than authorizing a bureaucracy to determine when, and whether, particular candidates can share in governmental largesse, the Patriot plan places this decision in the hands of the citizens of the United States, where it belongs.
One appealing strategy is to begin with a narrow target: the presidency. In contrast to congressional elections, which have no public financing, we already have in the presidency a large program that seeks to substitute public for private finance. Patriot would simply do the job much better than existing centralized arrangements. If a pilot program were in place for the 1996 election, it would demonstrate concretely to ordinary Americans that they can indeed act constructively to provide a solution to the present disgrace. This demonstration could, in turn, generate a decisive swing in support of a significant expansion of scope on both federal and state levels. Existing doubts about expanding public finance do not revolve around matters of budgetary cost. It would cost much less than a billion dollars a year, for example, to expand Patriot to finance all congressional campaigns. Opposition is based instead on the pervasive suspicion that federal funding will be perverted by incumbents to insulate themselves further from the popular will. The best way to confront these fears is by demonstrating Patriot's capacity to empower ordinary people rather than Washington bureaucrats.
Of course, present discontent with Congress is already so high that it might be preferable to include congressional elections from the outset. The Patriot's cleansing effect on congressional elections is more likely to improve the quality of public life than, say, term limitations forcing the retirement of popular and seasoned members of the House and Senate after a few terms in office. If the Patriot is extended to congressional elections, a second design issue becomes even more important: many voters will have trouble making intelligent funding decisions. If primaries are included within the program, challengers will have a hard time piercing the anonymity barrier. For the scheme to function effectively, cardholders should be allowed to give their red-white-and-blue money to political brokers to spend where they think it will do the most good.
Millions will refuse to take advantage of this option and will insist on making their own decisions on candidates. But those who wish to delegate their choices should be allowed a broad range of choice. Many will select a political party to serve as broker, but they should also be allowed to transfer funds to a broad range of interest groups--PACs, if you will, representing the full gamut of political opinion.
While PAC-baiting is a part of the conventional wisdom, we should rethink the source of our unease. So long as PACs depend on the supply of green money, it is easy to see how they reinforce those special interests that are relatively advantaged by the market. If, however, PACs are dependent upon red-white-and-blue funds, why not let a thousand flowers bloom, leaving it to the good sense of citizens to determine whether a political party or a PAC or a particular candidate best expresses their vision of the public good?
Some political scientists may find this expression of faith in ordinary people naive. Rather than leaving the role of parties to the political marketplace, they argue that the integrative functions performed by parties are crucial to the operation of a democracy. On this view, it would be healthier in the long run if we refused to allow "special interests" to compete directly for red-white-and-blue funds, requiring them instead to compete for influence by participating actively within the parties.
I am unpersuaded, but more important, so is the Supreme Court. As we shall see, there is no reason to think that the Court will react to Patriot with hostility so long as it remains broadly open to the shifting currents of political opinion. Using it to entrench the power of existing political parties, however, will likely generate a much more hostile response from the Court.
There are many more practical problems to be considered. I hope I have said enough, however, to make my sketch sufficiently credible that we can step back from these important, but ultimately secondary, details to consider Patriot's place in the larger system.
A first basic issue revolves around the relationship between the new red-white-and-blue currency and the ongoing use of familiar greenbacks: Can greenback-holders continue to buy political advertisements in newspapers to announce their "spontaneous and independent" support of a candidate? And what of the normal discussion of political questions in newspapers and other mass media? Presumably these standard media will continue to be financed through green dollars. Should their intervention in political campaigns, then, also be restricted?
Fundamental questions--but there is nothing special about the voucher plan that generates them. Any effort to insulate campaign finance from the unmediated rule of money requires us to cut the world into (at least) two spheres--the sphere of "campaign finance," in which the role of green money is constrained (either though traditional reform measures or as part of a voucher plan), and the world of ordinary commodities, where ability to pay is measured exclusively in terms of green dollars. Unless the market or democracy is allowed to dominate all spheres of life, we must be prepared to draw some lines--pointing out those activities, like voting or campaign finance, in which the democratic aspiration is taken with special seriousness, and those spheres where we are more willing to live with market-generated inequality. Since line-drawing is a feature of all reform programs, the difficulties it entails cannot be used as a reason for rejecting Patriot and continuing with old-style campaign reform.
Wherever we draw the line, we will be obliged to distinguish close cases. For example, Patriot might mimic existing law by allowing rich citizens and special interest groups to spend green money on political advertisements so long as they act "independently" of the candidate's direction. But there is nothing sacrosanct about this line. It is a result of Supreme Court decisions that, as we shall see, do not control a constitutional assessment of Patriot. Congress should therefore feel free to bar all purchases of political advertisements with green money, even if the purchaser claims to be acting "independently."
This decision, it bears emphasizing, does not mean an end to independent political action. As we have seen, PACs will remain free to compete with candidates and parties--for red-white-and-blue money. If PACs choose to spend their Patriot funds on an independent campaign, rather than on contributions to candidates' war chests, that is their choice. Patriot simply deprives PACs of power based on the wealth of their clients; it does not deprive them of their freedom to operate on a more level playing field. If the American Medical Association can convince the doctors of the United States, and perhaps some patients as well, to transfer their ten red-white-and-blue dollars to them, rather than the Sierra Club or the Republican Party, Patriot does not prevent them from continuing to play the game of electoral politics, albeit on a reduced scale.
Nor will Patriot eliminate the power of green money. General purpose media--ranging from the New York Times to the National Enquirer--would remain within the green-money sphere. While they could only accept political advertisements in exchange for money coming out of a Patriot account, they would otherwise be free to comment on political matters. Think tanks will continue to shape their messages to win the support of rich donors. By redefining the sphere of political equality, I have no desire to abolish the impact of market-generated inequality on our political life. I am searching for a healthier balance--in which the sphere of political equality is not overly compromised by the pervasive impact of wealth.
Similar line-drawing exercises await when we turn to consider the problem of the political volunteer. Whenever a citizen works for free on a political campaign, he or she is forgoing time that might have been spent on money-making activities. Should we conclude, then, that volunteers are really spending the market value of their time and that their "imputed wages" should be charged against the campaign's red-white-and-blue budget?
Though this suggestion might appeal to some economists, liberal democrats should reject it. The point of a political campaign is to inspire lots of Americans to act as conscientious citizens, putting their money-making cares to one side for a time to consider the public interest. One candidate should not be penalized if he or she successfully engages this civic spirit more than others. Volunteers are not in it for the money, and their energies should not be charged against the campaign's budget.
If so much is accepted, we confront a final question: How should we treat a candidate like Ross Perot, who wants to invest vast sums of green money in his own campaign? Just like everybody else. On the one hand, the fat paycheck Perot could have been earning as a business executive should not be charged to his campaign's Patriot account as an "imputed" cost of operation. On the other hand, Perot should not be permitted to throw his green money around to buy the presidency or any other office. Like every other American, his purchasing power within the sphere of campaign finance should be measured in terms of red-white-and-blue, not green, dollars.
But won't our careful line-drawing efforts be undermined by outright corruption? If a credit card has a balance of 10 red-white-and-blues, what is to prevent its holder from selling this balance in a corrupt exchange for a couple of greens? This is what happens with food stamps, why not with more patriotic forms of "nonnegotiable" currency?
The analogy to food stamps is too quick. The illegal buyer of food stamps can go into any store and exchange them for commodities. The corrupt buyer of a Patriotic balance will have greater difficulties. He must spend time and energy making sure that his promisee goes to a card machine and dials in the codes that will authorize the transfer to the "right" political party or candidate. This will be very costly, given the relatively small sum the corrupting party will gain from each transaction. It will also be hard to keep the media ignorant of a mass effort at corrupt purchases by a political "machine." A misstep here can be disastrous. Wrongdoers will face criminal sanctions equivalent to those involved in voting fraud, and the media carnival following the discovery of "dirty tricks" will seriously damage the tainted candidates.
But we have more to fear than this low level kind of corruption. What is to prevent high-level managers of the Patriot company from abusing their positions of trust? The possibilities are many: leaking lists of contributors, cheating on the accounts, and so forth. While there are institutional safeguards that may be employed to check against abuse, who will guard against abuse by the guardians? There can be no fully satisfactory answer. However, the present system of presidential public financing has been relatively corruption-free, and other public bureaucracies have discharged even more sensitive functions without too much abuse. For example, the Internal Revenue Service has done a pretty good job insulating itself from pressure by political ins to oppress the political outs. Is there any reason to suppose that Patriot cannot be controlled as well?
Despite this prospect of reinvigorated democracy, will Patriot nonetheless be held unconstitutional by the Supreme Court? Buckley v. Valeo upheld public financing but struck down some of Congress's attempts to restrict the role of private money in campaign finance. Worse yet, the case has chilled innovative thinking ever since.
This is especially unfortunate because the Court's decision should have pushed discussion in the direction of Patriot. To see why, divide the Buckley opinion into two large chunks. One part expressed deep skepticism about Congress's comprehensive effort to reduce the level of private expenditure by citizens and candidates. While the Court upheld some of these limitations, it struck down others that it feared cut too deeply into the resources required by candidates and citizens for energetic public debate. A second part of the opinion took a very different tack, abandoning skeptical critique for enthusiastic support. The Court shifted conceptual gears when it confronted Congress's creative use of subsidy programs to control campaign abuses. Rather than striking down such efforts, the Court went out of its way to uphold Congress's broad authority to embrace wide-ranging innovation. The constitutional case for Patriot builds on this strong affirmation.
The question that induced the Court's change of course involved the financing of presidential elections. While Congress was offering candidates big federal subsidies for their fall campaigns, it attached a very significant string: any candidate who accepted the federal subsidy could not accept a single penny from the private sector. Over the strong dissent of Chief Justice Burger, the Buckley Court upheld this innovative condition. In doing so, it took one large step toward Patriot. Like the program involved in Buckley, Patriot requires each candidate to decline all green money in exchange for participating in its subsidy scheme. On this core question, there can be no doubt about the plan's constitutionality.
But Patriot goes further. It prohibits people like Ross Perot from refusing Patriotic dollars and insisting on his right to buy his way to the presidency with green money. It also restricts ordinary citizens to their red-white-and-blue money if they choose to support "independent" campaigns on behalf of their favorite candidates. On these particular issues, Buckley looks both ways. As we have seen, the case strongly supports congressional creativity in the design of innovative subsidy programs. At the same time, the more skeptical portion of the Court's opinion did invalidate restrictions on candidates and citizens that bear a superficial resemblance to those at issue here. In particular, it invalidated Congress's restriction on candidates who wished to finance their campaigns with their own greenbacks; it also protected the right of citizens to use greenbacks to contribute to campaigns that were "independent" of the main effort controlled by the candidates themselves.
In the lawsuit of the future, the challenge will be to convince the Justices that this part of Buckley does not apply to the new reform. Defenders of Patriot must show convincingly that it was one thing for Buckley to protect the use of greenbacks when people were not provided with red-white-and-blue money; quite another thing to invalidate Patriot's restrictions on green money when each citizen is compensated in a new political currency.
This shouldn't be too hard--so long as the Supreme Court is prepared to think through the reasons why Buckley was so skeptical about expenditure limitations. As we have seen, traditional reforms of this type endanger two distinct interests. The first is a macro-interest: whenever the law tells people that they can't legally buy political advertisements, it reduces the overall quantity of speech-related investment. The second is a micro-interest: regardless of its overall impact, expenditure limitations frustrate each individual's freedom to spend money in the way that he or she thinks makes the most sense. Given this dual threat, Congress's comprehensive effort to restrict private expenditure understandably set off constitutional alarm bells for the Court. While the pursuit of equality is an admirable ideal, are we not running it into the ground when we use it to reduce the resources that would otherwise be devoted to political speech?
Within this context, the Court set about scrutinizing particular efforts at expenditure limitation--passing some and rejecting others, including the two that resemble our Patriot limitations. Though many have questioned these judgments, I agree with them. Without a compensating subsidy, severe limitations on greenbacks can greatly reduce the overall amount of resources devoted to political debate. Since the vitality of this debate lies at the very core of the First Amendment, the Court was right to look upon an encompassing set of restrictions with skepticism.
But as we have seen, Buckley itself recognized that the constitutional calculus can be radically transformed by the addition of a subsidy. Since Patriot distributes four red-white-and-blue dollars for every green dollar spent in the last election, it will lead to more, not less, political debate. Given this fact, the Court should ask itself a new question when confronting Patriot's limitations on the use of green money by candidates and private citizens. Unlike Buckley, the constitutional critics of Patriot will not be able to argue that both macro- and micro-interests support invalidation. To the contrary, Patriot's defenders will point to Buckley's support of innovative subsidy programs and will urge the Court to support Congress in designing a program that will generate a much more vibrant political debate than the free market had produced. Rather than threatening the macro-interest in free speech, Patriot is reinvigorating it.
In response, the restricted greenback-holders will only be able to invoke a vague intuition in defense of their micro-interest: "After all, it's my money. Why can't I spend it on an advertisement for a candidate rather than spend it on some trivial act of private consumption--say, an extra television set?" Call this the brute property intuition. The constitutional question, simply put, is whether the Supreme Court would find this a sufficient basis to invalidate the new limitations on green money imposed by Patriot.
There was a time when the right answer could have been yes. During the early twentieth century, courts constructed an elaborate jurisprudence guaranteeing property owners a fundamental constitutional right to use their property as they thought best. The spirit of the time was expressed by the famous Lochner decision of 1905. New York had passed a statute restricting the workweek of bakers to sixty hours. The Court invalidated the statute on the ground that it violated the freedom of the owners and employees to use their property and labor as they thought fit.
If Lochner were still good law today, I would fear for Patriot. Since the constitutional revolution of the 1930s, however, cases like Lochner stand as the great antiprecedents in the American legal mind. For Justice Scalia, no less than for Justice Brennan, it functions as a powerful symbol of negation, not commendation. Whatever constitutional rights Americans may plausibly claim in the modern era, all sitting Justices recognize one that Americans can't claim--and that is the Lochnerian right to use one's property any way one wants. Given the transvaluation of Lochner, even the present conservative Court will find it difficult to celebrate the rights of property as a reason for invalidating Patriot's restrictions on green money.
But assume I am wrong in all this, and that the ascendant Republicans on the Supreme Court are willing to breathe new life into the Lochnerian premise. Even this change would not be radical enough to endanger the constitutionality of Patriot. The Lochner principle has an unproblematic application within a social order where one kind of currency--color it green--serves as legal tender for all legal purposes. But it is precisely this world that Patriot is trying to replace. This multi-currency aspiration, moveover, is shared by a host of other voucher proposals. In education, health care, welfare, environmental control, policy discussion is awash with designs for special-purpose currencies. If a fraction of these initiatives become social realities, the wallets of the future will have a different design: lots of pockets containing monies of different colors, tenderable in different transactional contexts.
Within this brave new world, the neo-Lochnerian principle becomes conceptually inadequate. It is no longer enough to say that we have a right to spend money as we please; the question is which money do we have a right to spend--green or red-white-and-blue?
Or perhaps the question is better stated in terms of supermoney: Does the Constitution affirmatively require the creation of a single supermoney that must always be recognized as legal tender so long as any other kind of money is tenderable?
Since constitutional lawyers have been living in a single-money world, such questions are unfamiliar. As an active Court watcher, I am confident that the Justices, after scurrying to read the applicable precedents, would grant exceptionally broad discretion to the political branches in this area. If Congress insists there be only one currency, that's fine; if it wants to create specialized currencies in addition to an all-purpose money, that's O.K.; but if it wants to create "separate-but-equal" monies--each legal tender only within its own sphere--that's fine too. Since this predictable position leads to straightforward support of Patriot, one could leave the constitutional analysis at this point.
However, there are fundamental principles lurking here. The freedom that old-fashioned green money gives us to shape the contours of our lives is not to be taken lightly. Whenever the state decrees that one kind of money cannot be transferred into another kind, it constrains the freedom of those who would have made a different tradeoff. The proliferation of separate-but-equal monies, each for use in a different sphere of life, could lead to very real constraints upon our traditional practice of liberty. I am unprepared to say that such proliferation should be permitted to proceed without any serious constitutional scrutiny.
It seems wiser, then, to move beyond the conventional answer--the near-plenary power of Congress over the currency--despite the fact that the Court will almost certainly invoke it to sustain Patriot against attack. Whatever may be said of separate-but-equal monies in other emerging contexts, Patriot merits more than rubber stamp approval. It deserves judicial recognition as a decisive contribution to a problem that gnaws at the very core of modern constitutionalism.
This involves the constitutional status of the American quest for distributive justice. Since the New Deal revolution, the Justices--from the Stone Court through the Warren Court through the Rehnquist Court--have been trying to carry off a delicate balancing act. On the one hand, they have consistently denounced the notion that the Constitution enshrines the market-generated distribution of wealth and income. On the other hand, the Justices have refused to take the idea of social justice to heart and interpret the Constitution's demand for "equal protection" as requiring any particular level of redistribution from the rich to the poor. Instead, they have sought to remove themselves from the business of defining distributive justice by delegating the task to the president and Congress. While this step has insulated the Justices from the endless distributive struggles of the welfare state, it has also left a question gnawing just below the doctrinal surface.
Call it the problem of circularity. It is one thing for the Court to insist that it is up to the politicians to determine the justice of the green-money distribution so long as the politicians are selected through a process in which the green-money distribution does not play an overwhelming role. If, however, the green-money distribution does dominate politics, there is a very vicious circle: the Court defers to politics, which defers to green money on the question whether the existing green-money distribution is politically legitimate. In consigning the question of distributive justice to the political process, surely the Court does not suppose it is inviting the American people to play a shell game?
This embarrassing question does not bulk large on the pages of the United States Reports. Perhaps the Justices' insistence, in the reapportionment cases, on the principle of one-person, one-vote is part of an effort to reassure themselves, and the rest of us, that the circularity problem isn't too vicious--that the impact of the existing division of wealth, while substantial, isn't entirely undermining the constitutional credibility of political judgments about distributive justice. Perhaps the Justices reconcile themselves to circularity with the thought that there is not much they can do effectively to change matters, and that they must wait for mobilized citizens to insist upon the greater autonomy of politics from wealth.
This is where Patriot enters, breaking the circularity at its most vulnerable point. Patriot allows the Court to stop papering over some uncomfortable circularities whenever it defers to the political branches' interpretation of the constitutional meaning of equality. By insisting that only red-white-and-blue be used to run campaigns, Patriot allows the modern constitutional system to work according to its professed principles--requiring property to justify itself to democracy, rather than the other way around.
If, in contrast, the Court were to invalidate Patriot, it would be sabotaging the collective effort to break the circle created by its own pattern of decisions. While the Justices doubtless would continue to say that the question of distributive justice is open for political determination, they would have destroyed the very program that would have endowed this claim with political reality. While I disagree with the Rehnquist Court on other points, I do not believe that the majority would seriously consider such a counterproductive step. Patriot, then, presents an easy constitutional case. Congress and the rest of us should confront it on its merits, without undue anxiety over hostile judicial reaction.
Campaign finance is reemerging as a high priority of the Clinton administration. But the newspapers are already full of fears of more gridlock within the existing framework of reform proposals. Isn't it a good time, then, to redefine the framework?
Republican voter fraud allegations are getting embarrassing—and politically damaging—for the GOP.
Bruce Ackerman is a professor of law at Yale and the author of We the People.