The Myth of the Level Playing Field: Knowledge, Affect, and Repetition in Public Debate

I. INTRODUCTION II. WHY LEVEL THE PLAYING FIELD? THE ARGUMENT FOR REFORM III. CAMPAIGNS, CASH, AND THE POWER OF REPETITION A. Does Campaign Spending Matter? B. How Does Campaign Spending Work? IV. A RATIONALE FOR REFORM? EVALUATING EQUALIZATION PROPOSALS A. Undoing Buckley--Expenditure Limits B. Matching Funds--Raising the Playing Field C. Equal Dollars per Voter Aggregation at the Expense of Deliberation V. CONCLUSION: EQUALITY VS. RATIONALITY I. INTRODUCTION [I]t is said that Cato contrived to drop a Libyan fig in the Senate, as he shook out the folds of his toga, and then, as the senators admired its size and beauty, said that the country where it grew was only three days' sail from Rome. And in one thing he was even more savage, namely, in adding to his vote on any question whatsoever these words: "In my opinion, Carthage must be destroyed. " In this way Cato is said to have brought to pass the third and last war against Carthage.... (1) Justice Holmes famously asserted that "the best test of truth is the power of the thought to get itself accepted in the competition of the market." (2) This empirical claim about the relationship between the truth of a proposition and its popular acceptance is the quintessential crystallization of a widely espoused instrumentalist account of the right to free expression. Ultimately, the free exchange of ideas is considered a means to the end of rational and optimal decisionmaking in a deliberative democracy. (3) While such instrumentalist arguments have been levied against government interference in the "marketplace of ideas" for centuries, (4) the industrialization of the channels and scale of communications in the twentieth and twenty-first centuries has led many to doubt the ability of laissez-faire First Amendment policy to secure its promised benefits. Reasoning backward from the ends of instrumentalist First Amendment theory, reformers argue that the ability of certain powerful private actors to manipulate the scope and content of debate requires some qualification of Holmes's conclusion. Specifically, reformers contend that truth can only emerge from competition on a level playing field and that, left unchecked, the disproportionate wealth of certain speakers will allow them to exert a greater influence on public debate (and, by extension, public policy) than less endowed citizens and groups, in violation of the fundamental democratic principle of political equality. (5) Implicit in this argument is a claim that laissez-faire First Amendment doctrine is causing our democratic processes to generate policy outcomes that are inferior to those that could be achieved through more muscular regulation of public debate. (6) Modern First Amendment instrumentalists have proposed various departures from existing doctrine as a means to the end of optimal, rational, egalitarian self-government. Among the most hotly contested of these arise in the area of campaign finance law. Well-meaning reformers lament rigid constitutional barriers to creative measures that would, in theory, increase the diversity of viewpoints represented in political debate while privileging no viewpoint over any other, resulting in a better-informed citizenry and, therefore, better decisionmaking, better government, and better policy. Chief among these barriers is the widely disparaged yet remarkably stable contribution/expenditure distinction of Buckley v. Valeo (7) and its progeny. By attempting to place all candidates, citizens, or interests on an equal footing in terms of the amount they can spend on political campaigning, reformers hope to design a marketplace of ideas from which truth can reliably emerge victorious. This Article argues that the categorical assertion of Justice Holmes's dissent in Abrams is indeed descriptively inaccurate, but that the relationship between popular acceptance of an idea and its truth is too complex and fraught to be reliably controlled by blunt field-leveling measures in campaign finance regulation. …