By Kevin Foley Article published October 5, 2005
In politics, money is speech — or so the Supreme Court ruled in an almost 30-year-old case with sweeping implications for how government can regulate campaign contributions and spending. This term, the court will hear a Vermont case that directly challenges that restrictive precedent. The decision that emerges from those deliberations, says Anthony Gierzynski, associate professor of political science and author of the campaign finance book Money Rules, could potentially have a bigger impact than the much-ballyhooed McCain-Feingold because it could dramatically open (or restrict) the ability of government to regulate campaign fundraising. Gierzynski’s own research is a crucial part of the legal mix: Two extensive expert reports he prepared analyzing the effect of spending and contribution limits in Vermont and New Mexico are key part of the factual holdings that underlay the legal defense of the laws. The upcoming ruling, says The New York Times, whether technical or sweeping, “will inevitably become a highlight of the Supreme Court's new term.” the view talked with Gierzynski about the issues and the feeling of watching his research play out in the highest court in the land.
THE VIEW: What was your reaction when you heard the Supreme Court had decided to hear the campaign-finance case that you provided an expert analysis for?
ANTHONY GIERZYNSKI: I was psyched; I was very happy about it. The work I did for that court case and for another case in New Mexico that was referenced in the (2nd U.S. Circuit Court of Appeals) ruling was a chance to take what I do on the academic side and actually use it to try to have a real-world impact on government policy in something I think is incredibly important, how the rules of the game are set for campaigns and elections as far as fundraising and spending.
Set the scene: What’s at stake in the Supreme Court’s hearing of this case?
The general context of this all is a Supreme Court ruling back in 1976 called Buckley v. Valeo that has governed all of the campaign-finance laws that the national and state and local governments have written since then. The gist of that ruling pertinent to the Vermont case is that they equated spending money in elections as speech. And therefore, governments that wanted to regulate that spending, like regulating speech, had to pass a very high bar to show it was justified in some manner. Since that time, many campaign finance laws have been struck down based on that precedent. My understanding, via legal scholars, is that a number of justices on the Supreme Court thought that original decision was not very well written or logically argued, and there was this belief it needed to be revisited.
So that’s the whole judicial side. In the meantime, state and local governments and the national governments have been prevented from innovating and regulating campaign finance in the ways they see fit. This precedent has put a big restraint on it. In essence, it has made our campaign-finance system one that favors almost total freedom to spend and to contribute money at the expense of political equality, which is equally important. Elections don’t mean anything if one candidate has a lopsided edge over the other, if there’s massive inequalities between one side and the other.
Obviously no one knows how the Supreme Court is going to come down on this. But there’s a lot of speculation. Do you have any feeling for what might happen?
My specialty is in elections and campaign finance, so I don’t have much better speculation than any political commentator. But four justices must have believed that it needed to be reviewed, and I have read material that suggests that at least four justices believe the Buckley decision had to be revisited. Now, how it is revisited is a big question. It could be revisited and they say that contribution limits are unconstitutional in addition to spending limits, and that could make it all worse. Or they could say — and this depends how much the conservative, state’s rights judges stick to their states-rights philosophy — that state and local governments should have a freer hand in setting these sorts of spending limits. In that case, it would be quite a victory, opening up a lot of experimentation.
Over the last five years, the big, dramatic money-in-politics issue has been the ramifications of McCain-Feingold. Do you think that the Supreme Court’s revisiting of Buckley has the potential for a more substantive impact?
It’s potentially much more significant, because if it goes in the direction of allowing spending limits, it opens a whole new box of things that governments can do in terms of regulating campaigns. If it goes in the other direction, toward less regulation of contributions, it’s going to increase the amount of inequality in the political system 10 times or more. McCain-Feingold was neatly tailored to close one loophole in federal campaign finance law, this case could have much more impact because it’s much broader than whether soft money is allowed in national elections.
When you did the expert reports that are included in these court filings, what questions were you trying to answer? Tell me about the process and considerations.
I converted the claims of the plaintiffs (the ACLU, other groups arguing that the New Mexico and Vermont campaign-finance regulations should be overturned) into hypotheses about the actual behavior of candidates and what went on in elections. I then tested those hypotheses against the real-world analysis of results. Plaintiffs said the spending limits were too stringent, that they would cause problems with candidates communicating with voters. A good way to look at that is to look at past patterns of campaign spending... For the most part, I found that in most cases, the candidate spending fell far below the limits, especially in legislative context. It seemed from the past pattern of what the candidates were actually doing that this would not pose problems.
Same with contribution limits. I looked at how candidates raised money, what size contributions they brought in, what it would require under the new law to raise similar amounts of money, in essence testing hypothesis that the law would place this undue burden on candidates as far as fundraising was concerned. In Albuquerque we were able to do a little more in terms of testing the claims. There was a survey of registered voters that looked into their sources of information — one problem with the attack on spending limits, they say it restricts freedom of speech, that the public won’t be able to be informed about their choices. They assumed that the campaigns are the only way the public hears about the candidates’ positions on issues. It was clear from the survey materials that this wasn’t the case; most voters said they got their information from public forums and debates and the mass media. Then you look at voter turnout. In Albuquerque, we were able to compare voter turnout to turnout in other areas, to see if spending limits depress turnout, and we actually found Albuquerque turnout was higher than other areas. Looking at the data one by one, we found the hypotheses embedded in the plaintiff claims weren’t supported.
Since you already touched on what you feel is a strong argument in favor of campaign finance reform, maintaining political equality, tell me the most misguided reform arguments and approaches you see.
Reforms that attempt to totally eliminate private money from the process are going to continually run into problems. Once you cut off the flow of money in one direction, it’s going to find some other way to make it into the process. You can’t keep all private money out of the system. It’s going to find some way to try to influence the outcomes of elections. The best thing to do is to regulate the flow of money into elections in such a way that it isn’t harmful to the process, that it doesn’t create huge inequalities between incumbents and challengers, or Republicans and Democrats. That it doesn’t give certain interests or sectors of society undue influence in the lawmaking process. You have to regulate, but reforms that say you’re going get money out of the process ignore the past…
So you’re not a public financing guy?
No, no: I believe in public financing. But I believe in partial public financing. … Public funding is important to provide greater equality in the system because candidates who want to challenge incumbents are at huge disadvantage. If they were given grants, public money that they could then add to, they would at least have a floor of competitiveness, they can at least get up to a certain level and make sure that elections provide a choice for the public. Basically the system I described is the system Minnesota uses.
Why do issues of political participation and equality resonate with you and drive your professional endeavors?
I’ve always been interested in the institutions that are key to making a democracy work. Elections are obviously key, they link the public to their government. The mass media are also important. Political parties as well, the subject of my first book. I’m interested in how these institutions function in the U.S. political context — and how they malfunction, if you would, as well — and how things could be improved to strengthen the democratic nature of our society. I don’t know why, I’m just fascinated by it. It could be my upbringing in the Chicago area watching the politics there. It’s another sport in Chicago.
