Federal judge Richard Posner, erstwhile University of Chicago Law School professor, icon of the law and economics school of legal theory, author of numerous books covering everything from sex to national security to the banking collapse of 2008, and in recent years a blogger, is certainly one of the most prolific and entertaining writers, and one of the most brilliant minds, of the late twentieth and early twenty-first centuries. Throughout his career, Judge Posner gained a reputation for the rigorous application of empirical evidence and reason to legal issues. Posner has recently turned his attention to campaign finance reform, however, and his foray there is just enough to demonstrate that being extremely intelligent and prolific does not an expert make – at least not in the realm of campaign finance. Indeed, his effort is markedly lacking in the type of rigorous empiricism on which his reputation was built.
In this post to the Becker/Posner blog, Judge Posner argues first that independent spending by Super PACs is as “corrupting” as direct contributions to candidates. Posner rightly stays focused on the idea of quid pro quo corruption, rather than some vague standard of access, or gratitude for actually convincing voters to support a candidate. And there is a tight, concise, argument here – if a Super PAC exists primarily to elect a particular candidate, and its donors are known to the candidate (which is actually mandated by federal laws supported by Judge Posner), then the Super PAC donor could conceivably seek “quid pro quo” benefits from the elected politician in a manner not dissimilar from a direct contributor. From that observation,however, Posner jumps immediately to weighing the pros and cons of limiting contributes and independent expenditures by Super PACs.
Conspicuously missing from Judge Posner’s analysis is the evidence of corruption from either contributions or independent expenditures. In fact, the evidence that campaign contributions lead to quid pro quo corruption is exceedingly weak, refuted by the substantial majority of studies. Judge Posner seems ignorant of – and not particularly interested in – such empirical evidence.
Posner then concludes that added political spending does not inform the electorate. “[C]ould it be,” he writes, “that the more that is spent on political campaigns, the more informed the voting public becomes?” No. Indeed, he tells us:
This suggestion is hard to take seriously. Political candidates seem to have a very condescending view of the American electorate; almost no information is conveyed by political advertising. Debates and other campaign appearances provide voters with insights into the character and intelligence of candidates, but positive political advertising is largely a mode of hagiography, and negative of defamation.
The only problem is, virtually no serious student of political spending would agree. While MIT’s James Snyder has done some very interesting work suggesting that weaker, less competent candidates are more likely to benefit from spending by large donors and spenders, the evidence is quite strong that political spending does increase voter knowledge – even Snyder’s provocative work does not argue that less spending would be beneficial.
As the University of Wisconsin’s John Coleman (a member of CCP’s academic advisory board) and William & Mary’s Paul Manna found in their landmark 2000 work on spending in congressional campaigns, appearing in the Journal of Politics:
Campaign spending increases knowledge of and affect toward the candidates, improves the public’s ability to place candidates on ideology and issue scales, and encourages certainty about those placements. Rather than permit House members to mask their voting records, incumbent spending helps improve the accuracy of citizen perceptions of the incumbent’s ideology. Spending neither enhances nor erodes trust and efficacy in politics or attention and interest in campaigns. We conclude that campaign spending contributes to key aspects of democracy such as knowledge and affect, while not damaging public trust or involvement.
In later work Coleman notes that the increased knowledge levels can be observed across the political spectrum, among both well educated and poorly educated, involved and uninvolved voters. Others have found that increases in spending “substantially enhance” citizen participation and involvement in judicial elections. More recently a team led by Coleman’s Wisconsin colleague, Ken Goldstein, found that, as one reviewer sums up, ”political ads may actually educate, engage, and mobilize American voters. Only in the rarest of circumstances do they have negative impacts.” Goldstein is no deregulatory zealot – his earlier work for the Brennan Center for Justice was the basis for much of the McCain-Feingold law of 2003. One might argue that not enough empirical work has been done, and so the jury is still out, or that things have changed in the years since Coleman & Manna published their work (if you really think the mid-1990s campaigns studied by Coleman and Manna were that much more highbrow than current campaigns). But it is, well, hard to take seriously Posner’s claim that it is hard to take seriously the benefits of campaign spending on public knowledge.
The last time I recall Posner writing on campaign finance reform, he was quite rightly criticizing Supreme Court Justice Stephen Breyer for writing about reform without actually offering, or even considering, evidence (See the text here, at notes 19-25, including this: “No evidence for [Justice Breyer's] speculation [on the effects of unlimited campaign spending and contributions] is offered, and it is not very plausible.”) The Posner who wrote those words in a scholarly publication in 2006 would have been quite critical of the blogger Posner writing in 2012, with a most unPosner-like lack of concern for actual evidence about the campaign finance system and money in politics.