It has come to this: A respected federal official, Bill Bradley, publishes an op-ed about campaign finance in the New York Times arguing for a constitutional amendment that would restrict the political speech of his congressional colleagues, their would-be successors, and American voters as a whole. And no one utters a peep of complaint. Indeed, the president of the United States, most Democrats, and an alarming number of Republicans all claim to share Bradley’s goal, if not his means.
This campaign “reform” business is totally out of control.
The current campaign-finance mess dates from the 1976 Supreme Court decision in Buckley v. Valeo, a case that challenged the constitutionality of election laws enacted just two years earlier. The court declared it unconstitutional for federal law to limit the amount of money spent by campaigns that refuse public funding. (This ruling made it possible for Ross Perot to spend $ 60 million of his own money in 1992, and Steve Forbes to spend upwards of $ 30 million in 1996.)
But citing fears about the “appearance of corruption,” the court did allow the government to monitor and cap donations to individual candidates for federal office in any primary or general election. Most notably, the court upheld bans on individual contributions over $ 1,000 and contributions over $ 5,000 by political action committees (PACs).
Campaigns are considerably more expensive today than they were in 1976. It costs more to do everything today — you could buy a half-gallon of milk for pocket change back then, after all. But the $ 1,000 limit on personal contributions remains frozen in time. The unhappy result is that candidates now spend less time campaigning and more and more time hunting for more and more benefactors — the “money chase” we all decry. And since it is always easier for current office-holders to attract such money — and since their day jobs, performed live on C-SPAN, provide them publicity their opponents can rarely match — the electoral advantage of incumbency has never been greater.
The Buckley decision has distorted politics in ways everyone acknowledges and no one likes. But the problem is deeper still. The Supreme Court did strike down as unconstitutional most restrictions on campaign spending. In sweeping language, it ruled that “it is not the government, but the people — individually as citizens and candidates and collectively as associations and political committees — who must retain control over the quantity and range of debate on public issues in a political campaign.” But for some reason the court failed to apply this excellent principle to all forms of campaign spending.
The current Supreme Court is troubled by the inconsistency. In June, a narrow majority struck down restrictions on certain kinds of spending by state-level political parties (the New York Democratic party, the California Republican party, and so on). But it left untouched the federal law that forbids unlimited contributions to individual candidates.
The ruling leaves election law even more incoherent than it was before. If a state party now has the right to spend an unlimited amount of money, how exactly is that different from allowing unlimited contributions to that party’s candidates?
Still, the Supreme Court is at least moving hesitantly in the right direction: toward the First Amendment. But in their haste to redress the ugliness and irrationality of the status quo, self-styled reformers are moving headlong in the opposite direction. Bills were introduced in the last Congress that would eviscerate constitutional protections on political speech. The legislation imposes “voluntary” limits on campaign spending that aren’t really voluntary at all, and assigns the ederal Election Commission powers of prior restraint to enjoin “excessive” campaign advocacy. If you are running for Congress and you simply announce an intention not to comply with the ” voluntary” caps, your opponent is granted all manner of benefits — cheaper television time especially. In other words, you are penalized for the free exercise of your rights. And a penalized right, of course, is not really a right at all.
This legislation will be reintroduced in the House and Senate in January. It has some wind at its back. President Clinton has endorsed it again, with more fervor this time, in an effort to distract public attention from illegal foreign-money fund-raising the Democratic party appears to have conducted during the 1996 campaign. The congressional initiative is popular. Voters in six states have just approved ballot measures, most by wide margins, that apply its spirit and many of its features to local campaign law. But this kind of campaign “reform” is bad and wrong. And unconstitutional.
The constitutionality question makes “reform” legislators uncomfortable. Few of them endorse Bill Bradley’s call for a shrunken First Amendment. Russ Feingold, the Democratic co-sponsor (with Republican John McCain) of the major campaign-finance measure in the Senate, is quick to say he has “very strong reservations” about Bradley’s proposal. All that he really means, though, is that he has very strong reservations about being criticized for such a shockingly explicit move. Feingold and company would prefer to proceed surreptitiously, pretending that their initiative holds no implications for the First Amendmeat.
And the anti-speech crowd is winning cover for this plan from a group of activist lawyers and legal scholars organized by the Brennan Center for Justice at New York University. The center is named in tribute to the Supreme Court justice who wrote the Buckley decision — the retired William J. Brennan. Ironically, the Brennan Center wants the Supreme Court to overturn Buckley and permit strict financial ceilings on campaign advocacy.
One of the organization’s principal confederates, Ronald Dworkin, has published a New York Review of Books essay that purports to explain how the First Amendment does not proscribe — and may even require — such restrictions. The Brennan Center’s literature describes Dworkin as ” undoubtedly the world’s most highly regarded legal philosopher and expert on issues of democracy.” Nowadays, apparently, all it takes to win an honor like that is a pompous, prolix prose style and a smattering of footnotes to disguise your fuzzy reasoning. You certainly don’t need to know what you’re talking about; Dworkin doesn’t.
An exponentially growing cascade of cash is drowning American politics, he writes, and it is “a disaster.” No, it’s a myth. The percentage of national wealth devoted to election spending has been level for three decades. According to the Federal Election Commission, spending by general-election congressional candidates for the 1996 campaign actually declined from 1994 if you adjust for inflation.
Having messed up big-time right off the bat, Dworkin proceeds to unroll a great lot of philosophizing mumbo-jumbo designed to obscure his fundamental mood: an aestheticized hostility to raw and unfettered campaign debate. He fails here, too; the mood peeks through. “If politicians had much less to spend on aggressive, simple-minded television spots,” Dworkin writes, ” political campaigns would have to rely more on reporters and on events directed by non-partisan groups, like televised debates.” Americans should model their politics after the more civilized “way in which the members of a college faculty or a fraternal society . . . govern themselves.” Nothing significant will be lost in the transition, Dworkin claims. After all, modern political rhetoric “is now extremely repetitive,” and a good bit of it could be dispensed with — by law. “Every European democracy does this,” the world’s most highly regarded legal philosopher points out, “and Europeans are amazed that we do not.”
Europeans are also amazed that we bathe as frequently as we do. What the hell kind of argument is that?
And who now stands opposed to Dworkinism in defense of untrammeled electioneering? Republican senator Mitch McConnell of Kentucky does. The American Civil Liberities Union does. A few non-profit advocacy organizations do, too. Otherwise: silence. Opponents of the McCain-Feingold bill and its House counterpart grumble that the legislation fails to muzzle the two major parties equally, and that objection may prove sufficient to sidetrack the measure for another two years. But true campaign-finance reform shouldn’t muzzle anyone at all. It would be nice if more than a handful of national political figures were prepared to say so out loud.
David Tell, for the Editors
