Free Elections
SILVER, DANIEL J.
Free Elections Political reform vs. political speech. BY DANIEL J. SILVER Chances are Congress will pass some kind of campaign-finance reform this year. Yet it is not clear what the congressional...
...Smith's presence on the FEC drives advocates of campaign-finance reform to distraction, and Unfree Speech makes quite clear why: It is a comprehensive, well-reasoned book demonstrating that everything they believe about their pet subject is wrong...
...The constitutional issues cannot be swept aside...
...For Smith, it is vital to keep in mind what is at stake, which is freedom of speech itself...
...Challengers, on the other hand, can never get enough money, since Americans are, by and large, terribly uninformed about candidates who don't already have their names in the paper on a daily basis, can't arrange free photo-ops, and don't enjoy franking privileges for saturation-bombing runs on voters' mailboxes...
...Bradley Smith certainly thinks so, and to read Unfree Speech is to be forced to consider some basic questions about how this scheme of regulation arose in the first place and whether existing law and proposed reforms really serve the public interest...
...But that is exactly what Smith argues is the natural—and actual—effect of limits on contributions and spending...
...As Smith notes, the Court was fully aware that issue ads— even without explicit mention of a candidate, as in "vote for Jones"—will often imply support for a particular politician...
...The Court also concluded, however, that there existed a compelling governmental interest in preventing even the appearance of corruption, an interest sufficient to justify limits on individual donations...
...What's more, as Smith points out, extensive academic research has failed to provide evidence that their responsiveness is "corrupt...
...We can only hope that when the sausage-making is over in Congress, similar respect is preserved for core American values and fundamental American rights...
...And, indeed, that is typically the ad-maker's intention...
...That was no accident, Smith observes, for it followed enactment of the first reforms limiting contributions...
...Contribution limits are supposed to minimize the risk of quid pro quo legislative bargains: There isn't enough quid for a quo in a $1,000 or $5,000 contribution...
...And, yes, some of them are pretty nasty...
...The Court in Buckley was presented with this question of "issue advocacy" and ruled that FECA's language limiting expenditures on ads that refer to "a clearly identified candidate" would have had an unacceptable chilling effect on free speech about public issues...
...And there is worse...
...But there aren't enough $1,000 and $5,000 contributions to fund a modern, expensive campaign, either...
...in English literature from Yale and a law degree from the University of Washington, and he wrote on a wide range of topics for such publications as Commentary, the Wall Street Journal, and the New Criterion...
...The constitutional issues cannot be swept aside...
...Surely it would be a perverse result if reform, intended to increase the influence of ordinary folks at the expense of "special interests," ended up limiting participation in elections...
...Particularly disturbing, then, is the emphasis placed by many reformers on closing the "loophole" that allows unregulated spending for broadcast advertising of policy-advocacy messages...
...Incumbents spend lots of money, of course, but it has diminishing utility for them...
...Smith is a think-tank veteran, law professor, and, beginning last May, a member of the Federal Election Commission—his nomination to that post having been secured by Senate Republicans in a deal with the Clinton White House over unrelated judicial nominations...
...Contribution limits reinforce these advan-tages—doubly so, since the early flow of money in campaigns goes mainly to incumbents...
...Members of Congress seem not to support or oppose particular pieces of legislation simply because their political contributors want them to...
...What congressman would vote with big tobacco, after all (or big oil, or big drug companies, for that matter), unless he was more or less paid to do so...
...In reaching this result, the Court held that campaign contributions are indeed speech protected by the First Amendment from overly intrusive government action...
...Similar deep-pocket bogeymen exist on the other side of the ideological ledger: unions, trial lawyers, abortion advocates...
...Suffering a heart attack while playing basketball, he died on April 14 in Washington, D.C., at the age of forty-eight...
...The assumption is widely held that our politics works this way...
...All reform proposals should be judged in this light...
...Most of us would hardly call this desirable...
...Nevertheless, a bewildering array of regulatory "reforms" have been imposed on our politics, as if honest public service were ancient history...
...It all seems very much like, well, politics...
...And yet, when regulations that impinge Daniel J. Silver was an attorney with the Federal Trade Commission and a contributor to THE WEEKLY STANDARD...
...So to get the funds they need in a regime of small-dollar donations, candidates must sell themselves up front For Smith, it is vital to keep in mind what is at stake, which is freedom of speech itself...
...The premise of reform is that unlimited campaign contributions and unlimited campaign spending combine to force elected representatives into Faustian bargains: They end up voting on legislation not according to their judgment of its merits, but according to how their votes will affect the flow of money necessary to finance the next campaign...
...Smith offers a compelling if sadly moot argument that the Court too easily accepted the corruption rationale and failed to apply the necessary "strict scrutiny" to those burdens FECA placed on speech rights...
...to large groups of people...
...None of these options would necessarily seem less corrupting than old-style, fat-cat payoffs to campaigns...
...on our freedom of political expression are the subject of political horse-trading, isn't there something disquieting about the process...
...They generally vote, odd as it may sound, according to their consistently stated convictions...
...The leading case is the Supreme Court's 1976 decision in Buckley v. Valeo, which upheld the Federal Election Campaign Act's (FECA) disclosure requirements, contribution limits, and voluntary public-funding scheme, but struck down overall spending limits and bans on issue advocacy...
...If contributing to campaigns is at least in part a protected activity, its regulation should be narrowly tailored to achieve permissible objectives without intruding on the fundamental right of free expression...
...Rates of incumbent reelection reached unprecedented peaks in the 1980s, inspiring the term-limits movement...
...To evade existing, increasingly burdensome restrictions, politicians have learned to "bundle" individual contributions through political action committees, and their party organizations have learned to solicit unregulated "soft-money" donations that can then be "laundered" into help for specific candidates...
...A native of New York, he had a Ph.D...
...Nonetheless, the Buckley court concluded that regulation of such advocacy was too great an intrusion on the most constitutionally protected form of speech: political expression...
...But all such donor groups derive their support from the interests they represent, and those interests are voting citizens—employees, suppliers, distributors, and investors, for exam-ple—to whom elected officials are supposed to be responsive in the first place...
...The results have been peculiar...
...Yet it is not clear what the congressional debate is fundamentally about, much less what all the implications of any legislative provision might be...
...Which leads to lowest-common-denominator politics: politics by focus groups and polls, a la Bill Clinton and Dick Morris...
Vol. 6 • May 2001 • No. 32
