Ethical Issues In Campaign Finance Reform: Equality vs. Free Speech
By: Sam Storrs*
Abstract: The essay provides a brief, general historical background of campaign finance reform in the 20th and early 21st century leading up to 2010, highlights the ethical problems with the reform efforts, and analyzes some current options for reform using Rawls’ theory of justice. The primary issue in campaign finance reform is reconciling the competing ideals of individual equality and freedom of speech. Championing individuals’ right to speak freely through spending creates a disparity among citizens as voters and candidates. Yet, a system regulated to create equality in society may inherently limit the right to spend, and therefore, to speak freely. Instilling a greater measure of ethics into campaign finance thus poses a seemingly impossible task. [1]
Problem
The competing democratic ideals of individual equality and free speech create a seemingly impossible dilemma for instilling a greater measure of ethics into the American campaign finance system, as demonstrated by the repeating cycle of unsuccessful reform efforts since the early 1920s.
Defining an Ethical Campaign Finance System
For the purpose of this essay, the desired fusion of ethics into a workable campaign finance system focuses on the concept of fairness. The Rawlsian approach to justice states that individuals in society must have equal rights to basic liberties enjoyed by all, but also that any inherent social and economic inequalities must be arranged so they are of the greatest benefit to the least advantaged. An ethical campaign finance system would ideally provide candidates with equal opportunities to raise money while providing voters with equally weighted influence on elections, taking into account the aggregation of individual votes, protected right to speak freely, and capability and willingness to donate to candidates.
Rawls’ Theory of Justice
John Rawls bases his idea of justice on a social contract made by people who come together and set aside all particular features that distinguish themselves from one another, essentially forgetting their identities.[2] This way, they will always opt to favor the most disadvantaged in society due to ignorance of their own social and financial status. Rawls synthesized his approach to justice into two principles of justice:
- Each person is to have an equal right to the most extensive total system of equal and basic liberties compatible with a similar system of liberty for all.[3]
- Social and economic inequalities are to be arranged so that they are of the greatest benefit to the least advantaged, and so that offices and positions must be open to everyone under conditions of fairness and equality of opportunity.[4]
Rawls’ principles create a difficult dilemma for campaign finance regulation. An unregulated system protects each individual’s right to free speech, a freedom that US society largely believes to be included in the basic liberties noted in Rawls’ first principle of justice. Society’s inherent social and economic disparities, on the other hand, create unequal access to resources and free speech. Creating a system to arrange these inequalities in accordance with Rawls’ second principle inevitably infringes upon the free speech advocated in his first principle.
A Brief Historical Background of Campaign Finance Reform
Prior to the 1970s, regulation of financial transactions and activities associated with political campaigns sought primarily to curb the influence of labor unions and corporations on the outcome of federal elections, while also restricting the relationship between federal employees and campaign activities. In the 1960s,
* Sam Storrs is JD candidate at the University of Kansas School of Law specializing in business and commercial law.
[1] This essay provides some of my own views and brief fact summaries. It does not provide a complete history of campaign finance reform efforts; it is merely a brief depiction of reform in recent history and a specific application of Rawls’ theory of justice to those reforms and present reform ideas.
[2] Thompson, Mel. Ethical Theory. 2nd Ed. London: Hodder Murray, 2005. Page 73.
[3] Rawls, John. A Theory of Justice. Harvard University Press, 1971.
[4] Id.
