If Bob Dole does the right thing, sometime in the next few weeks your morning newspaper will report the death of a major “bipartisan” proposal to reform campaign financing — a proposal killed off by the threat of a Republican filibuster in the United States Senate. The story will also point out that companion legislation is locked up tight in a committee room of the House of Representatives by that chamber’s Republican leadership. Moneyed special interests and their puppet congressional incumbents will once again have triumphed over clean government and electoral fair play — or so the campaign-reform activists quoted in the story will squeal.
Let ’em squeal. The bills in question would exacerbate the ills they pretend to correct, and they would trample basic constitutional liberties in the process. Their proponents should be ashamed.
But they aren’t. As American public discourse sinks ever deeper into the muck of phony “fairness” and egalitarianism, the traditional conduct of free elections — political democracy’s central contests of people and ideas — is under dangerous assault.
Campaigns cost money. That money comes exclusively (presidential campaigns excepted) from voluntary individual and group donations. So the campaign treasuries of opposing candidates tend to reflect the relative size and force of their popular support. One side almost always begins with more support. And it spends that advantage on political advocacy — otherwise known as free speech — that it hopes to transform into a deciding plurality of votes. Elections are inherently “unequal,” in other words. They are about winning and losing.
But in the eyes of a campaign reform activist, the natural money inequality of any given electoral competition delegifimizes its result. So he doggedly pursues, lo these past few decades, a clunky effort to legislate parity by imposing low, easily attainable limits beyond which no campaign may accept or expend donations. Campaign reform of this sort is essentially affirmative action for political opinions.
The scheme has repeatedly run up against a single, pesky obstacle: the Constitution, which bids Congress pass no law abridging the freedom of speech. In 1976, the Supreme Court struck down two-year-old legislation governing federal campaigns that limited contributions by wealthy candidates and imposed a wideranging series of caps on supposedly “excessive” spending. Campaign money is political speech, the court affirmed. And “the concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment.”
But the court, alas, did let survive (on “anti-corruption” grounds) a congressional edict making it illegal for federal candidates to accept outside individual donations of more than $ 1,000. This “reform” has not improved American campaign practice. It has made fund-raising vastly more time-consuming and pervasive. The value of a $ 1,000 contribution is roughly half what it was when the law was first passed in 1974. Unless you are a wealthy person prepared to do a Steve Forbes routine, an effective campaign for federal office requires maybe four times as many financial backers as it once did. Incumbents have permanent institutional advantages in this money chase. And cash-strapped challengers must increasingly resort to the most cost-effective political speech there is: negative advertising.
Our politics is not adrift in a sea of corrupting money. Elections now absorb roughly the same, puny percentage of American wealth that they did 30 years ago — about five dollars annually per eligible voter, less than half the national potato-chip budget. But election money has become indisputably uglier, as a direct consequence of past campaign reform. And it is this very ugliness that campaign-reform activists cite as the best reason to restrict the market for political advocacy still further.
Caps on campaign spending may only be applied to candidates who accept them willingly, the Supreme Court says, and no candidate may be penalized for refusing to surrender his full First Amendment prerogatives. But the only ” voluntary” spending cap that has ever passed constitutional muster — the one whereby major-party presidential candidates limit their election efforts and get taxpayer money in return — is deeply unpopular. We know this because there is a national referendum on the question every April 15: Last year, only 14 percent of us checked off the box on our 1040 form contributing $ 3 to the presidential campaign trust fund. Any explicit extension of taxpayer financing to congressional campaigns is politically impossible.
That means self-styled “clean Congress” crusaders must attempt to achieve their goal through surreptitious means. This year’s campaign reform legislation would reduce the cost of mail and broadcast time for House and Senate candidates who agree to participate in a spending limits regime. It is public funding in disguise. Postal fees will rise overall to make up the difference. Commercial advertising rates will rise the same way — and retail consumers will pay for them. And there is nothing voluntary about these inducements. They are coercive; any candidate who dares announce an intention to refuse them gets his promotional costs automatically doubled.
The House and Senate bills ban campaign contributions by organized groups of like-minded citizens. They ban similar groups from spending money to advocate the election or defeat of any federal candidate. And, most alarmingly, they threaten to squash the political activity of advocacy organizations like Emily’s List and the Christian Coalition, whose voter information projects and campaign guides would now be subject to overbearing regulation by the Federal Election Commission.
The legislation grants the FEC authority over any “expression of support for or opposition to a specific candidate, to a specific group of candidates, or to candidates of a particular party.” What is an “expression of support?” Any “suggestion to take action with respect to an election, such as to vote for or against, make contributions to, or participate in campaign activity, or to refrain from taking action.” And what may the FEC do about such perfidious speech? It may block such speech from happening, with a prior- restraint injunction whenever the agency believes there is a “substantial likelihood that a violation . . . is about to occur.”
This is a grotesque legislative assault on bedrock American freedoms, and a disgrace to its sponsors. A small, prominent handful of those sponsors are thoughtless or deluded Republicans, whose involvement grants campaign “reform” an unwarranted “bipartisan” label. For the most part, however, abridgments of political speech in the service of electoral “fairness” are a nasty fetish of modern liberalism. Campaign reform is a Democratic party obsession.
When Democrats last controlled the Congress, the Senate actually approved (in May 1993; how soon we forget) a resolution of endorsement for a constitutional amendment that would have explicitly carved out an exception to free speech, the first in American history, for campaign spending limits. What might happen if the Democratic party retook control of Congress and retained the White House next year? We would need the courts to protect the First Amendment.
But it shouldn’t come to that. This year’s Republican Congress should knock down the campaign finance reform proposal before it. With pride and gusto and no delay.
David Tell, for the Editors
