Curtis Gans passed away on Sunday, March 15, of cancer. Gans served for many years as Director of the Center for the Study of the American Electorate at American University. His cause through the last 30 years of his life was trying to address the decline in civic participation in America, in particular as it related to voting, but more broadly to all aspects of civic life. Before that, Gans had first gained national attention as a young founder of the Coalition for a Democratic Alternative, an anti-Vietnam War group looking to derail Lyndon’s Johnson’s 1968 re-election bid. From there, Gans had become national operations director for Eugene McCarthy’s anti-war campaign for the presidency. Though most professional observers first thought McCarthy’s campaign to unseat his own party’s president a quixotic one, McCarthy’s strong showing in early primaries opened the door to Robert Kennedy’s candidacy later in the year, and eventually drove the President from the race. It must have been bittersweet for Gans, at best, to see the nomination eventually go to Johnson’s Vice President, Hubert Humphrey, allowing Republican Richard Nixon to run and win as the peace candidate in the fall. But it was McCarthy’s campaign that triggered LBJ’s downfall, and the war was the issue.
I did not know Gans well, but did have a few occasions to talk over the years. I first met him at a symposium at Franklin Pierce Law School in New Hampshire in 1996, when he was about the age I am now. I had just published my first major piece on campaign finance, “Faulty Assumptions and Undemocratic Consequences of Campaign Finance Reform,” 105 Yale L. J. 1049 (1996). One of the themes of “Faulty Assumptions” was that incorrect understandings of how money worked in politics had created a regulatory system with broadly “undemocratic” consequences, including a decline in turnout and political engagement. But “Faulty Assumptions” was, as they might say, based largely on “book learnin’.” Gans was one of the first to bring home to me the practical, on-the-ground reality of the damage that so much campaign finance regulation was and is doing to grassroots political participation. Gans always recognized that McCarthy’s stunning showing in the New Hampshire primary on March 12, 1968 would not have been possible under the heavily regulated campaign finance regime that emerged in the 1970s. While the McCarthy campaign’s public image was one of earnest young college students trudging through the snowy New Hampshire winter in a campaign that began barely three months before the primary (and that image was true), Gans understood that what made it all possible – the logistics, the travel costs, the preparation of campaign material and more, all on short notice – was the money. It was the ability of the campaign to raise money quickly, primarily through large contributions from persons such as GM heir Stewart Mott, Dreyfus Investments CEO Howard Stein, and Arnold Hiatt of Stride Rite Shoes, that made the campaign possible. The civic engagement of those young students was made possible by the large contributions of wealthy men; the campaign was able to be up and running in days because the funds could be raised so quickly.
In my few conversations with Gans, he always came back to that theme. He was critical of monetary gifts becoming a substitute for personal involvement, not just in politics but in charitable and civic work. But he was more critical of those whose good intentions led them to deprive political movements of the funds needed to launch, and especially of the professionalized politics that necessarily resulted from a highly regulated campaign finance system. Money was needed to organize voters, to register and educate them, and to provide an infrastructure for civic life. But a highly regulated system necessarily empowered central organizers and skilled consultants, lawyers, and accountants, replacing traditional volunteers.
It was in part because of my conversations with Gans that my own work has often focused on the real stories of people caught up in the regulatory maw of government for what should be considered the most basic, salutary forms of civic engagement, and the effects of campaign finance laws in stifling new ideas and political movements.
I’ve been at this game for over twenty years now, and a growing problem is that people forget. Young people assume we have always had a heavily regulated system, at least until a partisan, radical Supreme Court held that the Constitution allowed secret, foreign money to dominate our elections in order to help defeat Barack Obama. But of course, it’s not just young people. Most anyone under the age of 60 can scarcely remember that the historic norm in America was a system with no limits on individual contributions to political campaigns, few and largely ignored limits on participation by unions and corporations, and virtually no disclosure of contributions and spending. Under that system, the United States became the world’s wealthiest nation, defeated the Nazis, built the middle class, won the Cold War, passed major legislation such as the Voting Rights Act and Medicare with bipartisan majorities, and generally had a government that seemed to, well, work, and be pretty responsive to the desires of the people. Today, too many people, especially liberals (and Curtis Gans was definitely a liberal), have no memory of that world. And so their sine qua non of campaign finance is regulation. No matter how ineffective or damaging regulation has been, there must be regulation, and typically more regulation. In considering how to cure our political ills, there is just one alternative that is always off the table – freedom.
Regulation has an instrinsic appeal to people. If there is a problem, surely we can pass a law to fix it. And once in place, regulation quickly comes to seem the norm. It becomes hard for us to remember a time that was different. Freedom comes to be seen as something scary. FECA fails to achieve its objectives – indeed, it seems to move us in the wrong direction; BCRA fails miserably to improve trust in government or improve the quality of governance; Citizens United doesn’t lead to the exaggerated fears of the chicken little crowd coming true; and so on it goes, but people just assume that we must have regulation. Conversely, one points out that many well governed states and nations have few or no limits, or that for most of our history there were no limits on individual giving, and one is too often met, at best, by claims that “well things are different.” Except that really, they’re not – there have always been complaints about the cost of campaigning, the negativity of ads, the influence of wealth. But as we lose those who can remember, it becomes harder to make the case. We lose those who remember that you could announce a presidential candidacy just 11 months before the general election and put young volunteers into the field in New Hampshire just weeks later; that a congressional candidate didn’t have to spend all his time dialing for paltry $2,700 contributions; that ordinary citizens were not harassed for spending a few hundred or a few hundred thousand dollars to voice their views about candidates.
Eugene McCarthy, the man who brought Curtis Gans into electoral politics, died 10 years ago. McCarthy remained, till the end of his days, a harsh skeptic of campaign finance regulation. He had many pithy lines, from which I have borrowed liberally over the years. “The Constitution was not signed with ‘We pledge our lives, our sacred honor, and our fortunes up to $1000 per election'” was one of his favorites. Derisive of having government paying for campaigns, he often noted that the men of 1776 “did not petition the King for matching funds to finance their revolution.” As men like Gans and McCarthy pass on, we forget that a world did exist – and politics actually worked – back in the days when we didn’t have a Federal Election Commission, and dozens of state and local campaign finance and government accountability boards. There was a time when, if you were mad as hell at the political system, you rolled up your sleeves and went to work. Now, you roll up your sleeves, and dial a campaign finance lawyer to try to guide you through the system.
Campaign finance was not at the core of Gans’s work with the Center for the Study of the American Electorate, but he was an important link to a time when campaign finance lawyers were not mini-celebrities, campaign finance bureaucracies unheard of, and there wasn’t a campaign finance law for politicians to use to harass their political opponents and grassroots opposition. With the passing of Curtis Gans, it becomes a little harder to remember that there is an alternative to our failed, hyper-regulated system.