The Folly of Campaign Finance Reform, Part II - The First Amendment

Many liberals have fond memories of the late Senator Gene McCarthy, whose anti-Vietnam presidential platform caused LBJ to withdraw from the 1968 campaign. But very few of them know that in 1974, McCarthy went to court with fellow Senator James Buckley and a host of other groups ranging from the New York Civil Liberties Union to the Mississippi Republican Party to sue the United States against new amendments to the Federal Election Campaign Act. The coalition of ultra-liberals and arch-conservatives believed the new stipulations were unconstitutional, muzzled free speech and caused the government to influence election results and compromise popular sovereignty.

Two years later, the Supreme Court in Buckley v. Valeo (Buckley got the recognition because his name was first) did indeed agree with McCarthy and others and threw out the bulk of the new laws but upheld some key provisions, including the creation of the FEC, public financing of presidential elections and capped campaign contribution limits at $1,000. The court ruled that limits on individual and campaign expenditures violated the First Amendment, but contribution limits did not.

But is that truly the case, and was Gene McCarthy and the NY Civil Liberties Union 100% correct? In my opinion, yes. All forms of political communication to a mass audience of voters and constituents require money to create (often by hiring consultants), produce (everything from direct mail to bumper stickers and advertising copy) and distribute or broadcast. Political advertising and speeches is clearly communications and deserves the same protections as any other form of speech, including the partisan rhetoric of 527 ads and the personal views expressed on this blog.

By limiting campaign contributions, Buckley v. Valeo is limiting the contents and varieties of political communication available to political campaigns. It is also suppressing political dialogue and debate by preventing candidates from amassing enough resources to communicate with the public. Campaign contributions also enable other means of political communication, including grassroots mobilization and get-out-the-vote drives that further educate the public to a candidate’s positions.

The Court has ruled in numerous other decisions regarding communication that money equals speech, and politics is no exception. Money permits challengers and incumbents alike the power to communicate through advertising to try and persuade voters. But when the money spigot is curtailed or cut off, that severely limits the effectiveness of free speech and has the power to determine the outcome of elections. If Campaign Finance Reform (CFR) laws are hampering popular sovereignty, they are having a deleterious effect on democracy.

CFR laws also adversely affect people who wish to donate to their preferred candidates, parties and political causes. One of the best ways citizens can participate in the democratic process is by political contributions, but if a citizen wants to give more than is allotted by law their free speech rights are also being violated. Look at the figures from the 2008 elections at OpenSecrets.org and you will see that private donations from individuals provide the vast majority of money to the political system, not the PACs and nebulous “special interests” that CFR supporters claim. In fact, recent presidential candidates like Howard Dean, Barack Obama and Ron Paul became serious contenders entirely through private donations.

In 2002, the Bipartisan Campaign Reform Act (also known as McCain-Feingold) was passed that created additional CFR restrictions. It included a ban on the “soft money” contributions made to political parties, raised the contribution limit from $1,000 to $2,300 and indexed it for inflation, and banned ads by organizations that identifies a candidate by name within 60 days of election. The Democratic and Republican parties used soft money for a myriad of reasons, but they were primarily used for issue debates ranging from the environment to taxes and were often used in conjunction with specific races. By banning these donations, the parties are also now subjugated to the same First Amendment issues raised earlier because they are being prevented from fully engaging in these political debates. Perhaps more insidiously, donations that used to go to the parties (that were fully disclosed) have been diverted to 527 organizations and other entities that are not required to be transparent or accountable for their actions.

CFR laws were certainly written with good intentions, but the consequences to the public, the parties and the candidates have unacceptably influenced elections by curtailing free speech. Unfortunately, CFR laws are undermining more than the First Amendment and are adversely affecting politics in other ways as well. I'll explore that next.