Assault on the First Amendement

It is quintessentially American to be exquisitely sensitive to threats to liberty. Any country born with the motto “Don’t tread on me,” could hardly be otherwise. We worry about limits on flag burning and flag waving, about whether Nazis can march in Jewish neighborhoods, under what conditions artists funded by the government can produce art that is offensive to the public, the extent to which terrorists enjoy the right to counsel, and even the applicability of US Constitutional rights to illegal combatants caught in a foreign land. Yet, the focus on these questions can largely obscure sweeping threats that are far more pervasive and more directly threatening to American liberty. The implicit limitation of free speech hiding under the euphemism of campaign finance “reform” represents just such a threat.

The dynamics of calls for such reform are relentless. As governments grow more and more intrusive in the economy, government decisions rather than impersonal market forces determine economic winners and losers. As a consequence, there are stronger and stronger incentives to influence such decisions. As the perception of influence grows, so do cynicism about the influence and calls for regulation.

The 1974 campaign finance bill, following the Watergate scandal, limited individual contributions to $1,000 per candidate per election, political action committees (PACs) were limited to $5,000 per candidate per election, candidates spending of personal funds was capped and expenditures by independent groups was constrained to $1,000 per candidate per election.

In Buckley v. Valeo, the Supreme Court agreed that the law was far too expansive. While limitations on spending might avoid the “appearance of corruption” this argument could hardly be made against a candidate spending his own money. This limitation was struck down. Limitations on spending by independent groups were ruled a violation of the First Amendment.

After all the dust had settled, in exchange for some government financing, candidates could agree to spending limits. Direct contributions to candidates are called “hard money.” Contributions to political parties for general party activities fall into the category of “soft money.” Campaign ads paid for by soft money near the time of an election are not permitted to directly advocate the election or defeat of a candidate.

Ever clever, political professionals adapted to these new restrictions. Campaign ads for using soft money became cleverly disguised ads that supported general themes that helped or hurt various candidates. Money also flowed to independent groups to make the case for and against independent candidates.

To some, political speech in the form a campaign ads is getting out of control. The recently passed Shays-Meehan House bill bans “soft money” from the national parties, and prohibits unions, corporations and non-profit organizations from broadcasting ads that directly refer to a candidate within 60 days of an election. This latter provision will almost certainly not pass constitutional muster. Indeed, Congress is so certain that it will be overturned that it specifically provides in the legislations that the various components are severable. If one part does not pass a court test, the rest of the legislation would remain. It is irresponsible at the very least for Congress to pass legislation that they are reasonably certain is unconstitutional. Such an action shows a profound disrespect for Constitutional constraints.

Even now it is apparent that if the current bill becomes law, there will be important (unintended or not) consequences that are not healthy for the political process.

Incumbent Protection: In general, incumbents are better known in their districts than challengers and require fewer funds to introduce themselves to voters. To the extent that campaign funds are limited overall and to the extent that electioneering is limited, incumbents are helped. Incumbents, the ones who are writing the law, provided an exception for running against wealthy challengers who finance their own campaigns. If a challenger is wealthy, an incumbent is allowed raise more “hard money” Certainly, if the raising of such funds is corrupting, it is still corrupting in the presence of a well-heeled opponent.

Reducing the Relative Power of Parties: Political parties are where people of broadly similar political persuasions congregate. The presence of political parties nurtures political diversity. Parties will support with money long-shot candidates that political action committees and independent interest groups eschew as poor investments. As political parties wither, political competition weakens. Even in the unlikely event that limitations on campaign funds by independent groups within 60 days of election are upheld, the influence of such groups will increase. National political parties will not have soft money to spend and will not be able to respond to the pitches of various interest groups. Since independent interest groups by their very nature focus on single issues, the political debate will become more polarized and angry. Political parties have a centralizing influence. The Shays-Meehan bill greatly reduces this civilizing effect.

Increasing the Power of Large Media. With fewer political voices mandated by legislation, the power of the press to set the agenda free from dissenting voices grows. There are people on both the Left and the Right convinced that mainstream media misrepresents their issues. Under the planned legislation, the relative power of the press, yes even the corporate press, increases.

Now that passage of this form of campaign finance reform seems likely, some on the Left, are beginning to have second thoughts. Republicans have traditionally had greater success in raising hard money, and this bill increases hard money limits. In particular, Democratic candidates in 2004 presidential elections will likely exhaust their hard money funds in hard-fought primaries in early March or April 2004. Assuming that Bush runs essentially unopposed in the Republican primaries, the Bush campaign will be able to present the case for Bush’s re-election with hard money throughout the summer.

Many in favor of the current campaign reform regime argue that there are no real restrictions on the freedom of speech, because “money is not speech.” Of course, the phrase is a deliberate mis-characterization of the issue. If money is directly connected to speech then it is part of protected of speech. By way of analogy, governments could not limit the amount of money spent to print up a pamphlet and argue that they were not regulating speech but money.

The guiding ethos for free speech has been that, “I disapprove of what you say, but I will defend to the death your right to say it.” ( Friends of Voltaire, 1906) It has now changed to, “I disapprove of what you say, but I will defend to the death your right to say it — so long as it is more that 60 days before a federal election.”


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