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Cass R. Sunstein
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POLITICAL
EQUALITY
AND
UNINTENDED
CONSEQUENCES
Cass
R.
Sunstein*
It
is
a
familiar
point
that
government regulation
that
is
amply
justi-
fied
in
principle
may
go
terribly
wrong
in practice.
Minimum
wage
laws,
for
example,
appear
to
reduce
employment.
1
Stringent
regulation
of
new
sources
of
air
pollution
may
aggravate
pollution
problems,
by
perpet-
uating
the
life
of
old,
especially
dirty
sources.
2
If
government
closely
monitors
the
release
of
information,
there
may
be
less
information.
3
Un-
intended
consequences
of
this
kind
can
make
regulation
futile
or
even
self-defeating.
4
By
futile
regulation,
I
mean
measures
that
do
not
bring
about
the
desired
consequences.
By
self-defeating
regulation,
I
mean
measures
that
actually
make things
worse
from
the
standpoint
of
their
strongest
and
most
public-spirited
advocates.
We
do
not
lack
examples
of
both
of
these
phenomena.
It
is
unfortunate
but
true
that
current
cam-
paign finance
laws
may
well
provide
more
illustrations.
Some
campaign finance
regulation
is
amply
justified
in
principle.
As
we
will
see,
there
is
no good
reason
to
allow
disparities in
wealth
to
be
translated into
disparities
in
political
power.
A
well-functioning
democ-
racy
distinguishes between
market
processes
of
purchase
and
sale
on
the
one
hand
and
political
processes
of
voting
and
reason-giving
on
the
other.
Government
has
a legitimate
interest
in
ensuring
not
only
that
political
liberties
exist
as
a
formal
and
technical
matter,
but
also
that
those
liberties
have
real
value
to
the people
who
have
them.
5
The
achievement
of
political
equality
is
an
important
constitutional
goal.
Nonetheless,
many
imaginable
campaign
finance restrictions
would
be
fu-
*
Karl
N.
Llewellyn
Professor
of
Jurisprudence,
University
of
Chicago,
Law
School
and
Department
of
Political
Science.
I
am
grateful
to
Richard
Posner
and
David
Strauss
for
helpful
comments
and
to
Thomas
Brown
for
excellent
research
assistance.
1.
See
Finis Welch,
Minimum
Wages:
Issues
and
Evidence
34-38
(1978).
But
see
Stephen
Machin
&
Alan
Manning,
The
Effects
of
Minimum
Wages
on
Wage
Dispersion
and
Employment:
Evidence
from
the
U.K.
Wages
Councils,
47
Indus.
&
Lab.
Rel.
Rev.
319
(1994)
(concluding
that
the
minimum
wage
has
either
no
effect
or
a
positive
effect
on
employment).
2.
See
Richard
B.
Stewart,
Regulation,
Innovation,
and
Administrative
Law:
A
Conceptual
Framework,
69 Cal.
L.
Rev.
1256,
1281-84
(1981).
3.
See
Richard
Craswell,
Interpreting
Deceptive Advertising,
65
B.U.
L.
Rev.
657,
678
(1985).
4.
Cf.
Albert
0.
Hirschman,
The
Rhetoric
of
Reaction:
Perversity, Futility,
Jeopardy
11-12,
43-45
(1991)
(citing
two
arguments:
the
perversity
thesis,
which
asserts
that
"the
attempt
to
push
society
in
a
certain
direction
will
result in
its
moving..,
in
the
opposite
direction,"
and
the
futility thesis which asserts
that
"[any]
attempt at
change...
will
be
largely
surface, facade,
cosmetic, [and]
hence
illusory").
5.
See,
e.g.,
John
Rawls,
Political
Liberalism
324-31
(1993)
("The first
principle
of
justice
[should include]
the
guarantee..,
that
the
worth
of
the
political liberties
to
all
citizens,
whatever
their
social
or
economic position,
[is]
approximately
equal.").
1390
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1994]
POLITICAL
EQUAII
&
UNINTENDED
CONSEQUENCES
1391
tile
or
self-defeating.
To
take
a
familiar
example,
it
is
now
well-known
that
restrictions
on
individual
expenditures-designed
to
reduce
influence-peddling-can
help
fuel
the
use
of
political
action
committees
(PACs),
and
thus
increase
the
phenomenon of
influence-peddling.
6
This
is
merely
one
of
a
number
of
possible
illustrations.
I
can
venture
no
exhaustive
account
here, and
I
attempt
to
describe
possibilities
rather
than
certainties.
But
one
of
my
principal
goals
is
to
outline
some
of
the
harmful
but
unintended
7
consequences
of
campaign
finance
restrictions.
I conclude
with
some
brief
notes
on
what
strategies
might
be
most
likely
to
avoid
the
risk
of
unintended (or
intended
but
unarticulated)
bad
consequences.
My
basic
claim
here
is
that
we
might
attempt
to
avoid
rigid command-and-control
strategies
for
restricting
ex-
penditures,
and
experiment
with
more
flexible,
incentive-based
ap-
proaches.
In
this
way
the
regulation
of
campaign
expenditures
might
be
brought
in
line
with
recent
innovations
in
regulatory
practice
generally.
8
I.
CAMPAIGN
FINANCE
REFORM:
JUSTIFICATIONS
AND
THE
JUDICIAL
RESPONSE
A.
Arguments
for
Campaign
Finance
Reform
In
principle, the
case
for
campaign
finance
regulation
is
very
strong.
We
can identify
at
least
three
central
grounds
for
such
regulation.
9
First
and
most
obvious,
perhaps,
is
the
need
to
protect
the
electoral
process
from
both
the
appearance
and
the
reality
of
"quid
pro
quo"
exchanges
between
contributors
and
candidates.
Such
exchanges
occur
whenever
contributors
offer
dollars
in
return
for
political
favors.
The
purchase
of
votes
or
of
political
favors
is
a
form
of
corruption-a
large
issue
in
recent
campaigns.
10
Corruption
is
inconsistent
with
the
view
that
public
officials
should
act
on
the
basis
of
the
merits
of
proposals,
and
not
on the
basis
of
their
personal
economic
interest,
or
even
the
interest
in increasing
their
6.
See
infra
text
accompanying
note
52.
7.
Of
course
some
of
these
effects
might
be
intended.
8.
See,
e.g.,
Stephen
Breyer,
Regulation
and
Its
Reform
156-88
(1982)
(describing
alternatives
to
classical
regulation);
Bruce
A.
Ackerman
& Richard
B.
Stewart,
Reforming
Environmental
Law:
The
Democratic
Case
for
Market
Incentives,
13
Colum.
J.
Envtl.
L.
171,182-83
(1988)
(arguing
that
a
reform
of
environmental regulation
relying
on
market
incentives
will
improve
both
meaningful democratic debate
and
regulatory
efficiency).
For
a popular
treatment
of
regulatory
innovation,
see
David
Osborne
&
Ted
Gaebler,
Reinventing
Government
15,
301-05
(1992)
(suggesting
that
governments
employ
a
market-based
regulatory
policy
which
would
operate
by
incentives
rather
than
by
commands).
9.
I
do
not
deal
here
with
the
simple
interest
in
ensuring
that
enormous
sums
of
money
are
devoted
to
something
other
than
political advertising.
This
interest
is
legitimate,
of
course,
especially
if regulation
is
seen
as
a means
of
eliminating
the
prisoner's
dilemma
faced
by
all
candidates,
each
of
whom
must
decide
whether
or
not
to
advertise
without
knowing
what
other
candidates
will
do.
10.
See,
e.g.,
Herbert
E.
Alexander, Financing
Politics:
Money,
Elections
and
Political
Reform
67-69
(4th
ed.
1992)
(describing
the
Keating
Five
Affair).
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COLUMBIA
LAW
REVIEW
campaign
finances.
Of
course
consideration
of
the
merits
will
often in-
volve
people's
preferences,
and
of
course
a
willingness
to
pay
cash
may
reflect
preferences.
But
the
link
between
particular
cash
payments
and
any
responsible
judgment
about
the
merits
is
extremely
weak.
Laws
should
not
be
purchased
and
sold;
the
spectre
of
quid
pro
quo
exchanges
violates
this
principle.
The
second
interest,
independent of
corruption,
involves
political
equality.
This
is
a
time-honored
goal
in
American
constitutional
thought."
People
who
are
able
to organize
themselves
in
such a
way
as
to
spend
large
amounts
of
cash
should
not
be
able
to
influence
politics
more
than
people
who
are
not
similarly
able.
Certainly
economic
equal-
ity
is
not
required
in
a
democracy;
but it
is
most
troublesome
if
people
with
a
good
deal
of
money
are
allowed
to
translate
their
wealth
into
polit-
ical
influence.
It
is
equally
troublesome
if
the
electoral
process
translates
poverty
into
an
absence
of
political
influence.
Of
course
economic
ine-
qualities
cannot
be
made
altogether
irrelevant
for
politics.
But
the
link
can be
diminished
between
wealth
or
poverty
on the one
hand and
polit-
ical
influence
on the
other.
The
"one
person-one
vote"
rule
exemplifies
the
commitment
to
political equality.
Limits
on
campaign
expenditures
are continuous
with
that
rule.
The
third
interest
is
in
some
ways
a
generalization
of
the
first
two.
Campaign
finance
laws
might
promote
the
goal
of
ensuring
political
de-
liberation
and
reason-giving.
Politics
should
not
simply
register
existing
preferences
and
their
intensities,
especially
as
these are
measured
by
pri-
vate
willingness
to
pay.
In
the
American
constitutional
tradition,
politics
has
an
important
deliberative
function.
The
constitutional
system
aspires
to
a
form
of
"government
by
discussion."
12
Grants
of
cash
to
candidates
might
compromise
that
goal
by,
for
example,
encouraging
legislatures
to
vote
in
accordance
with
private
interest
rather
than
reasons.
The
goals
of
political
equality
and
political
deliberation
are
related
to
the
project
of
distinguishing
between
the
appropriate
spheres
of
eco-
nomic
markets
and
politics.'
3
In
democratic
politics,
a
norm
of
equality
11.
Thus
in
his discussion
of
the
"evil"
of
parties,
Madison
lists
as
his
first
remedy,
'establishing
a
political
equality
among
all."
James
Madison,
14
The
Papers
of
James
Madison
197
(Robert
A.
Rutland
et
al.
eds.,
1983).
It
should
be
noted,
however,
that
for
much
of
our
history
the
principle
of
political
equality
was
construed much
more
narrowly,
for
the
franchise
itself
was
not
given
to
all.
12.
See
Samuel
H.
Beer, To
Make
a
Nation:
The
Rediscovery
of
American
Federalism
74-77
(1993).
13.
See
Elizabeth
Anderson,
Value
in
Ethics
and
Economics
141-67
(1993);
Michael
Walzer,
Spheres
of
Justice 95-123
(1983);
see
also
Cass
R
Sunstein,
Incommensurability
and
Valuation
in
Law,
93 Mich. L.
Rev.
849-51
(1994)
(considering
economic
and
political
values
may
entail blocking
some
marketplace
exchanges
despite
our
general
respect
for
voluntary
contractual
agreements
when
such
exchanges
involve
or
encourage improper
kinds
of
valuation).
For
discussion
of
the
relationship
between
corruption and
political
equality,
see
David
A.
Strauss,
Corruption,
Equality,
and
Campaign
Finance
Reform,
94
Colum.
L.
Rev.
1369,
1371-75
(1994).
1392
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1994]
POLITICAL
EQUALITY
&
UNINTENDED
CONSEQUENCES
1393
is
important:
disparities
in
wealth
ought
not
lead
to
disparities
in
power
over
government.
Similarly,
democracy
requires
adherence
to
the
norm
of
reason-giving. Political
outcomes
should
not
be
based
only
on
intensi-
ties
of
preferences
as
these
are reflected in
the
criterion
of
private
willing-
ness
to
pay.
Taken
together,
the notions
of
equality
and
reason-giving
embody
a
distinctive
conception
of
political
respect.
Markets
are
oper-
ated on
the
basis
of
quite
different understandings.
People
can
purchase
things
because
they
want
them,
and
they
need
not
offer
or
even have
reasons
for
their
wants.
Markets
embody
their
own
conception
of
equal-
ity
insofar
as
they
entail
a
principle
of
"one
dollar-one
'vote'";
but
this
is
not
the
conception
of
equality
appropriate
to
the
political
sphere.
To
distinguish
between
the
market
and
politics
is
not
to
deny
that
an
expenditure
of
money
on behalf
of
a
candidate
or
a
cause
qualifies
as
"speech"
for
first
amendment
purposes.
Such
an
expenditure
might
well
be
intended and
received
as
a contribution
to
social
deliberation.
Many
people
give
money
in
order
to
promote
discussion
of
a
position
that
they
favor.
Indeed,
we
might
see
the
ability
to
accumulate
large
sums
of
money
as
at
least
a rough
indicator
that
large
numbers
of
people are
intensely
interested in a
candidate's
success.
If
a
candidate
can
accumu-
late
a
lot
of
money,
it
is
probable
that
many
people
like
what she
has
to
say,
or
that
even
if
the
number
of
supporters
is
not
so
great,
their
level
of
enthusiasm
is
high indeed.
In
this
way
we
might
take
the
ability
to
attract
a
large
amount of
money
to
reveal
something
important-if
not
deci-
sive-in
a deliberative
democracy.
If
and
because political dissenters
are
able
to
attract
funds,
they
might
be
able
to
do
especially
well
in the
polit-
ical
"marketplace."
This
possibility
should
hardly
be
disparaged.
In
this
regard,
it
is
perhaps
insufficiently
appreciated
that
a
system
without
limits
on
financial
contributions
favors
people who
can
attract
money
without,
however,
simply
favoring
the
rich
over the
poor.
In
theory,
at
least,
some
poor
people
may
be
able
to
attract
a
lot
of
money
if
their
political
commitments
find
broad
support-from,
say,
a
lot
of
relatively
poor
peo-
ple,
or
from
a smaller
but
intensely
interested
number of
rich
ones.
Of
course
it
is
hardly
unusual
for a
rich candidate
to
find
it
impossible
to
obtain
sufficient
funds,
because
other
people
are
not
at
all
interested
in
providing
support.
Many
candidates
with
large
personal fortunes
have
failed
for
just
this
reason.
These points
are
not
decisive
in
favor
of
a
system
of
laissez-faire
for
political
expenditures
and
contributions.
The
correlation
between
public
enthusiasm
and
the
capacity
to
attract
money
is
crude.
There
is
a
large
disparity
between
donations
and
intensity
of
interest
in
a
candidate.
Can-
didate
A
might,
for
example,
attract
large
sums
of
money
from
wealthy
people;
but
A's
supporters
may
be
less
interested
in
her
success
than
Can-
didate
B's
poorer
supporters
are
interested in
B's
success,
even
though
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