Deliberative Democracy and Campaign Finance Reform

Professor Schroeder's paper sets out a compelling description of some intractable problems with deliberative theory. I have found nothing to criticize in his outstanding article. In this comment, I wish to expand upon Schroeder's critique. In particular, I wish to explore a tension that occasionally arises among the fundamental elements of the theory of deliberative democracy. I first invoke the privilege of symposium comment writers to free-ride on the work of the principal paper. Professor Schroeder has presented a lucid survey of deliberative theory. (1) While I do not intend to repeat an exercise so well accomplished, a few points bear emphasizing. Deliberative theory is concerned with the problem of dissensus and justification. Given a plurality of reasonable, opposing views and assuming that all citizens are free and equal, how can one group--even a majority--justify imposing its preferences on another? Put another way, how can we justify applying the coercive power of the state against reasonable dissenters? (2) The response of deliberativists is that the exercise of state power is justified through a process of public reasoning. (3) This deliberative process is modeled expressly on the example of judicial decision-making. (4) Those who make a claim regarding the application of state power must offer reasons to justify their claims, much as a judge offers an opinion to justi fy the holding in a case. (5) This process of deliberation has three hallmarks. First, deliberation must be status-insensitive. As Schroeder explained in his article, "individuals should have no advantages in the process of public deliberation by virtue of their wealth, social status, ability to mobilize electoral assets, or capacity to provide rewards to other participants in the process." (6) Second, decisions are to be based on reasoned argument. (7) Third, arguments advanced must be sincere. "An argument ... must be one that [a deliberating citizen] endorses and one that 'would figure prominently amongst [her] reasons for the proposal,' absent other considerations." (8) The operation of deliberative democracy focuses on the public justification for a position. Focusing on the ex post justification leads to significant problems because it ignores a distinct and prior stage--the actual formation of a position. (9) Perversely, this focus can lead deliberativists to discount the importance of reason and even to undermine the ability of reason to function at this prior stage. (10) Moreover, the requirement that public justification take the form of reasoned argument can conflict with the requirement of status insensitivity. The campaign finance reform debate illustrates this problem. Given the imperative of status-insensitivity, it is not surprising that deliberativists tend ardently to support campaign finance reform. (11) Large campaign contributions and expenditures have long been understood to yield significant inequalities among citizens in terms of ability to participate effectively in the political process. Those who are able to make large contributions and expenditures enjoy an elevated status in the political arena compared to other citizens. Redressing this inequality has been a fundamental motivation of every modern attempt at campaign finance reform. (12) The problem for deliberativists is that this remedy is at war with their vision of the deliberative process. The dominant model of campaign finance reform proposals is to equalize citizen participation opportunities by limiting the impact of money in elections. (13) Given the cost of access to the media necessary to participate fully and effectively in public discourse, however, this approach inevitably entails less speech. (14) Any determination by the government that some quantum of speech is too much or drowns out the speech of others represents a level of distrust of the capacity of reason to govern deliberation. …