Democracy vs. free speech? - campaign finance reform

Progressive, The, Jan, 1997

Never has the power of money in politics been more obvious. A 1992 poll showed that 74 percent of American voters thought "Congress is largely owned by the special-interest groups," and 84 percent agreed that "special-interest money buys the loyalty of candidates." In the last four years, things have only gotten worse. In the 1996 campaign, Senate candidates spent between $5 million and $30 million to win their seats. And the Presidential campaign was the most expensive in history, running up a tab of $800 million.

Everyone agrees that we need to do something about the way money has corrupted our political process. The question is, what?

Common Cause, legal scholar Ronald Dworkin, and former Senator Bill Bradley of New Jersey are among those leading the current movement to cap campaign spending. But the ACLU opposes such caps, arguing that they violate the First Amendment rights of candidates and their contributors.

"I think the ACLU is wrong," says Ed Garvey, a liberal Democrat from Wisconsin, who has run for Governor and Senator. "Anyone who equates money and speech is ignoring the real world, because money is now what drowns out the middle- and low-income people in this country," Garvey says. "What happens in the real world is that Herb Kohl [the independently wealthy Democratic Senator from Wisconsin] can spend $50 million, but you, my friend, are not financially articulate."

Bill Bradley makes a related argument: "If you've got a good idea and $10,000 and I've got a terrible idea and $1 million, I can convince people that the terrible idea is the good one."

Thus a fundamental conflict appears to arise between democracy and free speech. Bradley has proposed a constitutional amendment that would make campaign-spending limits the law of the land. The theory is that ordinary citizens with good ideas would have a better chance of being heard when they run for political office, and that corporations and wealthy donors would no longer get the best candidates their money can buy.

But appealing as it sounds, amending the Constitution to limit campaign spending is a bad idea. The ACLU is right: Capping this spending not only abridges free speech, it interferes with the most privileged of all speech--political debate. In our capitalist society, unfortunately, one of the only ways people can communicate their views to their fellow citizens is through the paid media. When you limit how much individuals can spend to communicate those political views, you are cutting mighty close to the bone of the First Amendment.

The last serious effort to reform campaign finance was the 1974 Electoral Reform Act, which Congress passed in the wake of the Watergate scandal. The Act set caps on spending for all Congressional candidates. But in its 1976 Buckley v. Valeo decision, the Supreme Court ruled that capping campaign spending violated candidates' right to free speech.

Constitutional scholar Burt Neuborne says the Court was wrong in the Buckley decision when it "drew the general abstract principle that the first dollar of spending is the same as the thirty-millionth. At some point, money stops being speech, and it becomes an oppressive force, reinforcing disproportionate power."

Oddly, the Court allowed other limits contained in the 1974 law, including a provision that said individuals cannot contribute more than $1,000 per election to a federal candidate, while the candidates themselves can spend as much as they want.

The biggest loophole in the law is a provision allowing unlimited individual and corporate contributions to political parties. These "soft-money" contributions have led to the current obscene levels of campaign spending.

The Buckley decision is both confusing and ineffective. But the solutions proposed by Buckley's liberal opponents--reinstituting spending caps--are no better.

Once liberals start scaling down the First Amendment, social reactionaries will cut the ropes, and our free-speech rights will come tumbling down. What's to stop Ralph Reed from ramming through the prayer-in-school amendment, or the flag-burning amendment, or the stand-at-attention-during-the-national-anthem amendment, except an unyielding respect for the First Amendment?

Free speech is not just a means to an end. It is an end in itself. But some of those who argue for campaign-spending caps seem to take a parched and instrumental view of it.

Here is the convoluted way that Dworkin defines the value of the First Amendment. "Free speech must mean the freedom to speak or publish when denying that freedom would damage some other individual right that free speech protects, or when it would impair democracy itself," he wrote in the October 17 edition of The New York Review of Books.

Such a view denies that free speech itself is an inalienable individual right. But we defend free speech not because good speech inevitably or immediately conquers bad speech, but because speaking freely makes us free.

The answer to the campaign-financing problem is not to chisel away at free speech, but to get serious about public financing. Congress could give candidates full public financing on the condition that they obtain a certain number of signatures and accept only the smallest amount of private money. Wealthy candidates could still opt out, but if the public funding levels were high enough, it wouldn't much matter. Multimillionaires would still be able to spend what they wanted to get elected, but their advantage would be minimized, since other candidates would start with a healthy pot of their own.