RE: Volokh on Vermont

The question of how far campaign finance regulation should go in leveling the playing field is not new. But let me set out some contrary arguments to the position that Professor Lipkin has set out.

The main objection to his argument is that equality is not the only political value worth protecting. There are many others – individual autonomy, protection of minority rights against majority incursion, property rights – and the basic function of American political structures and processes is one of balancing these values when they exist in tension. Part of our social contract with government is the consensus belief that certain political rights should be assigned and protected equally. But I don’t see how you can extend this to equality in political influence (which is what I read Lipkin to mean when he says “equal participation”) without doing violence to other important political rights. The Constitution does not create a system of perfect equality (the Senate being one example, federalism and state governments another).

There are things that we could do to enhance the degree of political equality in the electorate: ending the disenfranchisement of ex-felons, to give one case But reducing someone’s right to speak in order to achieve some unspecified and abstract result? No, thanks.

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Kenneth R. Mayer

Professor, Department of Political Science

1050 Bascom Mall

University of Wisconsin-Madison

Madison, WI 53706

(608) 263-2286/ fax (608) 265-2663

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From: owner-election-law_gl@majordomo.lls.edu [mailto:owner-election-law_gl@majordomo.lls.edu] On Behalf Of RJLipkin@aol.com
Sent: Tuesday, June 27, 2006 3:17 PM
To: VOLOKH@law.ucla.edu; election-law@majordomo.lls.edu
Subject: Re: Volokh on Vermont

I'm not sure why urging one restriction which is directly related to both running for office, participating in campaigning, and expressing one's political views about elections requires me to include other inequalities that only indirectly affect elections. My concern is with the exclusion or virtual exclusion from elections and campaigning large numbers of people. If Eugene's examples of other inequalities directly affected election by excluding as many citizens from participation as does financial inequalities in campaigning and if there was no conceivable practical solution to these inequalities without creating enormous collateral problems, then I might agree with Eugene that all his inequalities and mine should be treated in the same manner. But that is not the case. Hence, Eugene's conclusion "if Bobby's arguments justify restrictions on spending money related to election, then they would also justify restrictions on a wide range of other rights" seems misplaced. Indeed, it seems to be a howling non sequitur. Of course embracing a dichotomy between direct and indirect influence is often troubling. But in this case my sensibility tells me the distinction is clear. It seems clear that restricting wealth in elections--because of the penultimate role elections play in ascertaining consent--hardly entails restricting wealth in education or in funding a drug clinic.

OK, OK, I knew sooner or later I'd be exposed, and Eugene has done it. Yes, my instincts bridle at all of the examples of inequality Eugene mentions. And yes, I AM A LEVELER. There I've said it.

The problem is one need not be a leveler to embrace my argument. My point is not that

spending money to exercise all sorts of rights exacerbate existing inequalities, although of course they do. My point is that republican democracy makes consent (and voting) a preeminent value. And that money in elections in fact excludes sufficient numbers of people to warrant special consideration. In short, they do not have the same chance to consent as the wealthy; nor can they consent to the same degree. (Of course, this is an empirical fact that can be disconfirmed. And then I may alter my view.)

It's not just that if your child goes to a private school, she has a better chance to succeed than one who does not. Nor is it even that going to private school makes one more knowledgeable, more intellectually circumspect, and more committed to civic values and therefore a better voter and campaigner. Both are arguably true. But the existence of private schools neither excludes poor--nor lower middle class--people from participating in elections anywhere near the same degree as the wealthy. Money does.

Suppose we thought it required to provide transportation to disabled people on election day. Does that commit us to providing transportation to Republican Party meetings. I can't see that it does. If that's right, then restricting money in campaigning does not require the government to provide financial support for people in the general exercise of their rights.

If you're wealthy you probably will be able to better exercise many rights more fully than less wealthy folks. That's true. But that is irrelevant to my concern which is that elections and campaigning are a special case. The fact that wealthy people presumably have better chances to exercise their free speech rights also is irrelevant. It is one special right I'm concerned with. Because that right plays a conspicuously significant role in republican democracy.

More important, if reducing everyone's free speech in order to extend participation in elections to a significantly larger class of people, I'm for it. Why should some have greater free speech rights in elections when that has the effect of limiting the free speech and participation in elections of others? I am not prepared to say that that's the cost of constitutional rights. Indeed, in my view, that view places an enormous burden and cost on our constitutional republic by privileging some to be key players in elections and excluding many from equal participation. That's too costly for me. Such a privileged class is anathema to my conception of American constitutionalism.

Bobby, "The Leveler"

Robert Justin Lipkin
Professor of Law
Widener University School of Law
Delaware