Unfree Speech
The Folly of Campaign Finance Reform
by Bradley A. Smith
Princeton Univ. Press, 286 pp., $ 26.95
Chances are Congress will pass some kind of campaign-finance reform this year. Yet it is not clear what the congressional debate is fundamentally about, much less what all the implications of any legislative provision might be. It all seems very much like, well, politics. And yet, when regulations that impinge on our freedom of political expression are the subject of political horse-trading, isn't there something disquieting about the process?
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. 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. 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 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. The assumption is widely held that our politics works this way. 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? Similar deep-pocket bogeymen exist on the other side of the ideological ledger: unions, trial lawyers, abortion advocates. And, yes, some of them are pretty nasty.
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 example -- to whom elected officials are supposed to be responsive in the first place. What's more, as Smith points out, extensive academic research has failed to provide evidence that their responsiveness is "corrupt." Members of Congress seem not to support or oppose particular pieces of legislation simply because their political contributors want them to. They generally vote, odd as it may sound, according to their consistently stated convictions.
Nevertheless, a bewildering array of regulatory "reforms" have been imposed on our politics, as if honest public service were ancient history. The results have been peculiar. 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. But there aren't enough $ 1,000 and $ 5,000 contributions to fund a modern, expensive campaign, either. So to get the funds they need in a regime of small-dollar donations, candidates must sell themselves up front to large groups of people. Which leads to lowest-common-denominator politics: politics by focus groups and polls, a la Bill Clinton and Dick Morris.
Most of us would hardly call this desirable. And there is worse. 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. None of these options would necessarily seem less corrupting than old-style, fat-cat payoffs to campaigns.
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. But that is exactly what Smith argues is the natural -- and actual -- effect of limits on contributions and spending. Rates of incumbent reelection reached unprecedented peaks in the 1980s, inspiring the term-limits movement.
That was no accident, Smith observes, for it followed enactment of the first reforms limiting contributions. Incumbents spend lots of money, of course, but it has diminishing utility for them. 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. Contribution limits reinforce these advantages -- doubly so, since the early flow of money in campaigns goes mainly to incumbents.
For Smith, it is vital to keep in mind what is at stake, which is freedom of speech itself. The constitutional issues cannot be swept aside. 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. In reaching this result, the Court held that campaign contributions are indeed speech protected by the First Amendment from overly intrusive government action.
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. 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.
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. All reform proposals should be judged in this light. 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. 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. 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. And, indeed, that is typically the ad-maker's intention. 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.
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.
Daniel J. Silver was an attorney with the Federal Trade Commission and a contributor to THE WEEKLY STANDARD. A native of New York, he had a Ph.D. 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. Suffering a heart attack while playing basketball, he died on April 14 in Washington, D.C., at the age of forty-eight.