by ordering reargument on September 9—before the usual start of the Court’s term in October—of the Citizens United case and calling for the parties to submit briefs on the constitutionality of the McCain-Feingold’s ban on corporation-paid political advertising. This suggests that the Court is ready to overturn recent precedents upholding these restrictions—precedents in which former Justice Sandra Day O’Connor voted to uphold the law but which her successor Justice Samuel Alito may take a different view. The thinking is that the Court may rule that the First Amendment—you know, that pesky provision of the Constitution that (as the Court has ruled over the years) protects nude dancing, student armbands and flag burning—actually protects political speech as well.
The Politico article reports that an Obama White House aide, Norm Eisen, seems to be failing to respond to a campaign finance bill sponsored by Senators Russ Feingold and Susan Collins. Candidate Obama professed his fealty to campaign finance restrictions even while his campaign broke his promise to accept government funding in the 2008 general election when it discovered that it could raises much more in private funds.
Here’s a suggestion for Norm Eisen, Senators Feingold and Collins and all other persons who may be concerned. Get a copy of
Better Parties, Better Government: A Realistic Program for Campaign Finance Reform, by my American Enterprise Institute colleague Peter Wallison and former ACLU counsel Joel Gora. The thrust of campaign finance legislation since the 1970s has been to restrict political speech in the interest of incumbent officeholders, they argue persuasively. It’s demonstrably not working and large parts of the regulatory scheme will disappear if the Court decides, as it threatens to do, that political speech deserves the same constitutional protection as nude dancing, etc.
Wallison and Gora suggest a different course. Rewrite the campaign finance laws to channel contributions through the political parties. These are the only institutions with a vested interest in promoting challengers as well as incumbents, and yet current law greatly restricts the contributions they can make. Undo those restrictions and let real competition begin. For more on their suggestions, see David Frum’s useful summary.
Arguably the political stars are in alignment for such legislation. The Obama White House controls the national Democratic party and has shown itself to be capable of vastly outraising the Republicans. The Republicans, lacking the White House and majorities in both houses of Congress, have a vested interest in promoting challengers. Instead of trying to stop the flood of money that inevitably goes into politics when government makes so many important decisions that affect people’s economic interests and moral values, channel it to where it can do the most to promote fair competition and a genuine battle of ideas.
When I read Wallison and Gora’s book last spring (here’s something I wrote at the time), I thought it was utterly persuasive—but not likely to have any practical impact given the politics of the day. The Supreme Court’s Citizens United rehearing order has changed that. It’s currently #1,521,799 on amazon.com. It deserves to rise much higher, fast.
