Chicago’s Best Ideas, a long-running lecture series in which faculty share their work with the Law School community, continued winter quarter with three talks that show just how diverse faculty work can be. This quarter, our professors spoke about campaign finance law, government regulation of industry using economic principles, and the legal history of contraception. A roundup:
David Strauss, “Campaign Finance First Principles"
Strauss, Gerald Ratner Distinguished Service Professor of Law, offered students a history of campaign finance decisions in the Supreme Court and then posed this thought-provoking question: What if we scrapped all that and started over? What campaign finance laws and regulations would actually make the most sense and best serve our democracy? Strauss explained how Buckley v. Valeo (1976) established the standard that survives today, in which the focus is on preventing corruption and the appearance of corruption, but not equalizing individuals’ ability to be influential. That is, it has been held unconstitutional to restrict the speech of some to enhance the voice of others, even if that makes it more equal. The Court also drew a distinction between contributions and expenditures that survives today; contributions may be capped, but expenditures must be unlimited. We can only donate so much to a political campaign, but we can spend as much money as we want on expenditures such as TV ads. In 2010, Citizens United v. Federal Election Commission made it so that corporations and unions, which cannot contribute directly to campaigns, may make an unlimited amount of expenditures as well.
Strauss argued that this whole doctrine is backward: The focus should be on equality, not corruption, which bribery laws may adequately address, he said. The Court has said that focusing on equality is contrary to the First Amendment, but that’s a fallacy, Strauss added. There are many contexts in which we try to equalize the political influence between people: everyone only gets one vote, for instance.
Implementing equality in campaign finance is much trickier, Strauss acknowledged. Proposals have included giving citizens vouchers for a limited number of campaign contributions they can make or giving campaigns a subsidy for every small contribution, which incentivizes raising more small donations. Strauss pointed out that these approaches have their own problems. How to police in-kind contributions or volunteer hours, for example? Strauss finished by saying that the Court should allow the government and Congress to try different approaches to campaign finance, as long as they attempt to equalize the landscape. “Rule by the people does not mean rule by the people with the most money. And until we say that…I think there is some threat to democracy,” he said.
Jonathan Masur, “Well-Being Analysis vs. Cost-Benefit Analysis”
Masur, Deputy Dean, Professor of Law and Herbert and Marjorie Fried Teaching Scholar, presented an alternative tool for policymakers used to relying on cost-benefit analyses when making regulatory decisions as crucial as, “Save X amount of lives, or Y amount of money?” or, more specifically, “Should we make businesses that use chromium pay $300 million in compliance costs if we can save five lives and prevent 20 cases of emphysema?” Cost-benefit analysis, or CBA, has been the government’s standard decisionmaking tool for 30 years. It tries to put a monetary value on lives saved or quality of life enhanced, based on people’s preferences. Masur argued that these equations put too much emphasis on imperfect human decisions, which lack knowledge and, sometimes, opportunity. For example, some low-income workers will take dangerous jobs for little or no extra money, and that isn’t representative of society as a whole.
Masur proposes “well-being analysis,” or WBA, as an alternative. WBA doesn’t rely on converting preferences to dollars; instead of hypotheticals, WBA asks people about their well-being and converts their answers into units of welfare. These “hedonic values” don’t require people to make judgments about the risks of their job or where they live, or to predict their future happiness. Instead, their demographic information and well-being units can be taken together to help inform decisions. In the chromium example, this formula can figure out well-being loss in the case of emphysema, without asking people what it would be worth to them, financially, to have emphysema. WBA can provide the same guidance without the distortion so often caused by CBA, Masur said.
Geoffrey Stone, “When Contraception was a Crime”
Stone offered a fascinating history of the legality of birth control and abortion throughout history, and a commentary on how the law changed – or didn’t – with the times. The research is part of his upcoming book, Sexing the Constitution, about the history of sex, law, and constitutional law.
When the Constitution was enacted, there were no laws against contraception or abortion before quickening (roughly the midpoint of pregnancy), Stone explained. Until the the 1850s, both practices were considered legitimate, and advertisements for both were commonplace. Then came the Second Great Awakening, moralist Anthony Comstock, and the Comstock Act of the Victorian era, which forbade all “obscene” materials, including information on birth control. Stone gave a fascinating oral biography of Margaret Sanger, the nurse who crusaded to give information on birth control to poor women in New York, who were dying from complications of multiple childbirths, attempts to give themselves abortions, and other conditions of their poverty. As Sanger was doing her work, and getting arrested for it, the Catholic Church became much more vocal in its protestations about birth control. The church was successful in preventing attempts to repeal the Comstock Act and the many comparable state laws, but slowly public sentiment changed, especially from the 1920s on. That was, Stone said, the time of “flappers, dance halls, and the back seats of Fords.” From then on, while the Comstock laws remained in place, what was actually legal or illegal became murky. Contraceptives were sold under the guise of being used for other purposes, and courts increasingly held that such sales did not violate the law. Finally, in 1965, Griswold v. Connecticut made contraception available to married couples, and seven years later, Eisenstadt v. Baird extended that right to all. The year before, in 1971, Congress repealed the Comstock Act. All this laid the foundation for Roe v. Wade two years later, legalizing a woman’s right to an abortion, Stone said.