Complicated Times: Speech and Advocacy in a Changing Environment

United States Capitol Building
The United States Capitol Building in Washington, D.C. Photo by Zach Berger/Campaign Legal Center

I would like to speak as the emissary of an outlier among philosophically conservative private foundations.  Our organization, the Stuart Family Foundation, has consistently supported campaign finance reform along the lines of McCain-Feingold / BCRA.  This reflects the judgment and experiences of our founder, Ambassador Robert D. Stuart, Jr., who after many decades of fund-raising on behalf of the GOP, came to realize in the 1990s that the soft-money loophole had corrupted the action of the Congress and was undermining public faith in the integrity of elections.  This conviction has placed us sharply at odds with other conservative philanthropies, so I would like to talk a bit about why conservatives seem generally opposed to campaign finance reform and what might be done to bring them around, for without their support, for the foreseeable future, nothing will change for the better.

Emerson warned us that a foolish consistency is the hobgoblin of little minds, and it is not hard for any of us to think of examples in which a thirst for principle and integrity leads to rigidity of political thought and sterility in action.  At the same time, even in this tolerant and pragmatic era, we understand the appeal of foundational thinking.  All of us harbor core convictions of one kind or another that we consider non-negotiable, and we like to believe that in matters of deepest gravity, we might break but we’d never bend. Despite the flexible and cosmopolitan spirit of the times, in which diversity and openness to disparate values are regarded as self-evident goods, most champions of marriage equality, for example, regard their goal as not just a civil right – a thing demanded by a consistent legal positivism – rather a human right, something transcending history and cultural borders, true for everyone, true for all time. Compromise or a state-by-state solution is therefore inadmissible in their view, just as it was in the debate over slavery.

I mention this because contemporary American conservatism includes within the complex fabric of its ideas just such a resolve to remain principled and consistent where the core commitments are concerned.  And in the spirit of bipartisanship and comity, I think it is incumbent upon progressive to understand and – up to a point – respect this objective.  We are all tired of gridlock, but the gridlock does reflect an interest in political principle worthy of some deference.  Republican intransigence on a variety of issues is not just a matter of partisan tactics.

So what principles are thought to be at stake and in what ways?  I think there are two basic concerns.

The first is the importance of principle per se.  Conservatism, broadly understood, means defense of the status quo – of the ad hoc, customary political arrangements inherited from the past that possess the so-called wisdom of tradition.  The term first came into widespread use to describe adherence to the old order in Europe in the face of the radical egalitarianism of the French Revolution.  In the American context, the term has therefore long been unsatisfactory or misleading, because the American republic was at its founding a revolutionary liberal power, grounded on an ideology of natural, transcendent right.  The language of the Declaration of Independence is anything but conservative in the usual sense, for it holds the rationalism of the Enlightenment to be supra-historical in purchase: all men, for example, being endowed by their creator with inalienable rights.  Jefferson’s language is rooted in the political thought of the English Civil War but marks a radical extension of it also.   I bring this up because at the present time, it is American conservative intellectuals who most vigorously defend our Revolutionary conception of natural right.  Scholars like Professor Robert George at Princeton have called for a thorough reengagement with our founding political philosophy which, they believe, offers a means of moral and legal reasoning that ultimately transcends the limitations of cultural perspective.  The thought of the Founders is therefore a remedy for the relativism and historicism that has become the dominant frame of reference in American intellectual life.  It is possible, such scholars believe, to know what is right, rather than merely to state a preference.  Reason can lead us to a firm understanding of human nature, and of the good, from which universal political principles can be drawn.  This is a precious achievement in their view, because it rescues us from both religious dogmatism and nihilism.  All humanity can speak the language of reason.

I must interject here that this may sound like what you learned in eighth-grade civics (and it probably was), but it is no longer in keeping with mainstream thought in departments of politics or philosophy or in schools of law.  Natural right is unfortunately widely considered an anachronistic concept, as Justice Thomas is frequently reminded by his detractors (including some on the right).

What does that have to do with campaign finance reform?  I think there is a connection.  Generally speaking, the conservatives of the present day are more determined to get to the bottom of things than at any prior time in our nation’s history.  They are looking to assess contemporary politics in the light of the Revolution and its aims, and this has a direct bearing on their attitudes towards federal regulation of political speech.  They will reject any law that does not seem consonant with our Founding principles or which seems motivated by merely pragmatic concerns.  I would ask you to keep that word – “pragmatic” – in mind, as I shall return to it shortly.

Second, Conservatives are convinced that many of the country’s present difficulties reflect inattention to our founding principles.  This is true in both constitutional jurisprudence and in the assumptions about the proper role of government that drive our politics on a day-to-day basis.  Conservative Republicans operate with a coherent, thumbnail historical narrative, running all the way from the Founding to the election of George W. Bush, in which the New Deal is the crucial watershed.  Here the battle cry is “limited government”, and Republican theory derives both from our own revolutionary philosophy and from subsequent elaborations of liberal political and economic theory by figures like John Stuart Mill and the economists of the Austrian School.  The thrust of this narrative is well-known to us all: over time, our concept of the legitimate scope of government has become far too broad.  Rather than existing to set the minimum constraints upon liberty consistent with public order, government has instead become a vehicle for the solving of social problems and the (attempted) eradication of natural inequalities among individuals.  In the minds of many Republicans, this is not only a departure from what our constitution ought to permit but is also misguided in practical terms, because the more government does for us, the less we attempt to do for ourselves.  Government paternalism is enervating.  It saps initiative and is inimical to a vital and resilient civil society. Moreover, experience seems to show that the larger and more bureaucratized our problem-solving government becomes, the less efficient and accountable it will be.  Big government not only interferes where it ought not to tread, but it does so in a particularly clumsy and wasteful fashion.  And finally, government cannot meet the fiscal burdens of an open-ended mandate for the improvement of society.  The present fiscal crisis – our inability to equilibrate between a tolerable tax burden and our demands for government services – represents the reckoning we have brought upon ourselves through the expansion of government in the New Deal, the Great Society, and – many would add – so-called “compassionate” conservatism.  Hence the increasingly powerful libertarian strain in Republican thought maintains that the Democratic Party’s conception of activist government is both constitutionally illegitimate and economically unsustainable.

Well, what does this have to do with campaign finance?  Several things.  First, most Republicans are convinced that it is philosophically wrong to use government power to eliminate the role that disparities in wealth play in politics.  Formal equality of individuals before the law – a legitimate philosophical aim, consonant with the Founding – does not entail or imply that Americans must have equal economic resources or that the advantages that follow from wealth should have no political consequences.  This argument has been explicit in the holdings of the Roberts Court. 

Second, most Republicans believe that it is also impossible to obstruct the flow of money in political campaigns.  No matter how ingenious a given statute may be, sooner or later money, like water flowing down a mountain, will find its path.  The more elaborate the strictures, the more tortured the path will be.  Far better to acknowledge the inevitable fact that wealth will always be of account and to let it flow directly. 

Third, and perhaps most important, Republicans see a connection between restrictions on campaign spending and the runaway growth of government. In their view, campaign finance law has tended to favor the power of incumbency, and incumbents further their political careers by tapping federal resources to benefit their constituents, thereby expanding government over time. Rather than heading off to Washington to protect ordered liberty, our representatives go there in order to bring home the bacon and be returned to office in perpetuity by grateful interests.  This may sound paradoxical to many of you, but in the understanding of many Republicans, the restrictions imposed on campaign contributions since the FECA legislation of the post-Watergate era have worsened this situation by increasing the power of the “establishment”.  The traditional power structure – go-along, get-along, Democratic and Republican – finds it much easier to maintain itself in a system of limited contributions because it has the manpower and networks necessary to raise money from more numerous but nevertheless interested donors.  The remedy would be to allow challenger candidates to enter the fray with backing from a small number of wealthier contributors, just as – many Republicans like to point out – Gene McCarthy was able to do in 1968.  What our politics needs is more dark horses and outsiders.

So what I am getting at?  Many Republicans have a coherent view of these things and they feel that principle - vindicated by experience - is on their side.  If they are to budge, they must be prompted to reassess their position in light of those same principles, for they are unlikely to accept reforms that cannot be reconciled with the ideas of the Founding.  For those of us who think that Republicans have got this one wrong, the task is therefore to start making the case on those same ideas.  I see three points of entry.

The first is to appeal to Madisonian suspicion of concentrated power.  Our country is no longer an agrarian Republic.  We live in a time of mass communication and universal suffrage and our democracy has become more direct than it was at its inception.  Accordingly, the impact of political spending upon political communication is incomparably greater than it was in earlier times.  To my mind, it is easier to see unfettered spending as a threat to limited government than as a means to its restoration, because it opens the door to the worst kind of demagogic campaigning.  In the long run, it is the problem-solving, expansionist vision of government that is more likely to benefit from a politics where unlimited resources can be spent upon messaging in the era of big data.  Corporate rent-seeking and corporate cronyism – anathema to free-market libertarians – seem likely to increase as well. 

Second, Republicans must be confronted with the reality of corruption.  No system of campaign finance precludes corruption: cast your eye to Europe and you will find many a breathtaking example of outright knavery in the highest offices despite firm and transparent laws.  But some systems are better than others, and the evidence will soon mount, I suspect, that runaway spending from individuals and corporations will increase quid-pro-quo corruption in the Congress, just as the soft money loophole did. 

Third, Republicans must be constrained to stand by their avowed support for disclosure of the sources of political contributions – a principle upheld by the Roberts Court and widely affirmed, until quite recently, by most Republicans who opposed BCRA.  But overall, the task is to remind Republicans that their political ideology – including their reverence for the philosophy of the Founding – is not detached from pragmatic concerns about power.  On the contrary, the beauty of our original constitutional theory was its commonsense understanding of power and the propensity for its abuse. 

Many contemporary conservative intellectuals have a particular interest in the political philosophy of Aristotle, and to close I would like to remind them that it was Aristotle’s habit to begin his theorizing by looking at things as they actually stood, i.e. pragmatically.  I am personally deeply sympathetic to the contemporary conservative interest in first principles.  In the long run, I think it vital that we consider the bases of our politics – whether we are liberals, progressives, independents, or conservatives - because it is only by doing so that we really come to appreciate where we can compromise and where we must hold firm and how our opponents make those same calculations.  But we cannot ignore the reality of the political facts and if conservatives continue to insist that unlimited, undisclosed, contributions from corporations and individuals pose no threat to the integrity of government, sooner or later they are going to end up profoundly embarrassed by the reality of corruption.  Rather than seeming principled, they will appear hidebound at best, or at worst complicit.  

Truman Anderson is Executive Director of the Stuart Family Foundation and recently offered this compelling explanation why his conservative foundation supports campaign finance reform. These remarks were delivered at the Council on Foundations Annual “Philanthropy Exchange” on a panel entitled “Complicated Times: Speech and Advocacy in a Changing Environment.” The Stuart Family Foundation is a longtime funder of the Campaign Legal Center.