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Why a New Paradigm? (with Bruce Ackerman), 37 University of Richmond Law Review 1147 (2003)


Do we really need a new type of campaign finance reform? Fred Wertheimer and Alexandra Edsall say no. They think we would do just fine if we continued under the regime created by the Supreme Court of the United States in Buckley v. Valeo, if the Federal Elections Commission found the political gumption to enforce the recent McCain-Feingold statute, and if we increased the ratio of public matching funds for campaigns.

We disagree. Expanding and enforcing the old paradigm is a fool's errand. Even if current laws were scrupulously enforced, private money from the richest one percent will continue to be the dominant force in politics. The current system simply has no chance of insulating the political sphere from the economic inequalities generated by the free market.

Spending another twenty-five years campaigning to strengthen the enforcement powers of the FEC is just what we don't need. It is a certain prescription for repeated cycles of evasion, public outrage, and ineffectual response. At some point, this dismal cycle will lead people to think—wrongly—that they might as well give up on the whole enterprise of creating a more democratic system of campaign finance.

Though he does not fully endorse the old paradigm, Richard Hasen also believes that Buckley stands in the way of fundamental reform. We don't agree, but that does not mean that we like every aspect of the decision. For example, Buckley was wrong in giving plutocrats the constitutional right to finance their own campaigns out of their own unlimited checking accounts. But reformers should rejoice in Buckley's clear endorsement of the constitutionality of public funding. Our new paradigm breathes new life into traditional forms of subsidy. By providing Patriot dollars to all voters, we create new incentives for political outreach, a new sense of citizen involvement, and a new constituency for serious campaign reform.

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