The additions would be the Forbes-Perot Codicils, abridging the right of a rich person to use his or her money to seek elective office. This will be called “closing a loophole.” To reformers, a “loophole” is any silence of the law that allows a sphere of political expression that is not yet under strict government regulation.
Jack Kemp, Bill Bennett, Dan Quayle, Dick Cheney and Carroll Campbell are among the Republicans who were deterred from seeking this year’s presidential nomination in part by the onerousness of collecting the requisite funding in increments no larger than $1,000. You may or may not regret the thinness of the Republican field this year, but does anyone believe it is right for government regulations to restrict important political choices?
There are restrictions on the amounts individuals can give to candidates and on the amounts that candidates who accept public finding can spend. Limits on individuals’ giving force candidates who are less wealthy than Forbes or Perot to accept public funding. Such restrictions are justified as necessary to prevent corruption and promote political equality. But Prof Bradley A. Smith of Capital University Law School in Columbus, Ohio, demolishes such justifications in an article in The Yale Law Journal, beginning with some illuminating history.
In early U.S. politics the electorate was small, most candidates came from upper-class factions and the candidates themselves paid directly what little campaign spending there was, which went for pamphlets, and for food and whisky for rallies. This changed with Martin Van Burern’s organization of a mass campaign for Andrew Jackson in 1828. Democratization–widespread pamphleteering and newspaper advertisements for the increasingly literate masses–cost money. Most of the money came from government employees, until civil service reform displaced patronage.
Government actions–Civil War contracts, then land and cash grants to railroads, and protectionism–did much to create corporations with an intense interest in the composition of the government. Then government created regulations to tame corporate power, further prompting corporate participation in politics. Smith says that in 1888 about 40 percent of Republican national campaign funds came from Pennsylvania businesses, and by 1904 corporate contributions were 73 percent of Teddy Roosevelt’s funds. Democrats relied less on corporate wealth than on the largesse of a small number of sympathetic tycoons: in 1904 two of them provided three quarters of the party’s presidential campaign funds. By 1928 both parties’ national committees received about 69 percent of their contributions in amounts of at least $1,000 (about $9,000 in today’s dollars).
Only a few campaigns have raised substantial sums from broad bases of small donors. These campaigns have usually been ideological insurgencies, such as Barry Goldwater’s in 1964 ($5.8 million from 410,000 contributors), George McGovern’s in 1972 ($15 million from contributions averaging about $20) and Oliver North’s 1994 race for a U.S. Senate seat from Virginia (small contributors accounted for almost all of the $20 million that enabled North to outspend his principal opponent 4 to 1 in a losing effort).
The aggressive regulation of political giving and spending began in 1974, in the aftermath of Watergate. Congress, itching to “do something” about political comportment, put limits on giving to candidates, and on spending by candidates–even of their personal wealth. Furthermore, limits were placed on total campaign spending, and even on political spending by groups unaffiliated with any candidate or campaign. In 1976 the Supreme Court struck down the limits on unaffiliated groups, on candidates’ spending of personal wealth and on mandatory campaign spending ceilings. The Court said these amounted to government stipulation of the permissible amount of political expression and therefore violated the First Amendment.
But in a crucial inconsistency, the Court upheld the limits on the size of contributions. Such limits constitute deliberate suppression by government of total campaign spending. And such suppression constitutes government rationing of political communication, which is what most political spending finances. Furthermore, in presidential campaigns, limits on the size of contributions make fund raising more difficult, which coerces candidates (at least those less flush than Forbes or Perot) into accepting public funding. Acceptance commits candidates to limits on how much can be spent in particular states during the nominating process, and on the sums that can be spent in the pre- and post-convention periods.
Now, leave aside for a moment the question of whether the “reformers” responsible for all these restrictions remember the rule that Congress shall make no law abridging the freedom of speech. But why, in an era in which the United States has virtually eliminated restrictions on pornography, is government multiplying restrictions on political expression? (Here is a thought rich in possibilities: Would pornographic political expression be unregulatable?)
When reformers say money is “distorting” the political process, it is unclear, as Smith says, what norm they have in mind. When reformers say “too much” money is spent on politics, Smith replies that the annual sum is half as much as Americans spend on yogurt. The amount spent by all federal and state candidates and parties in a two-year election cycle is approximately equal to the annual sum of the private sector’s two largest advertising budgets (those of Procter & Gamble and Philip Morris). If the choice of political leaders is more important than the choice of detergents and cigarettes, it is reasonable to conclude that far too little is spent on politics.
The $700 million spent in the two-year election cycle that culminated in the November 1994 elections (the sum includes all spending by general-election candidates, and indirect party-building expenditures by both parties, and all indirect political spending by groups such as the AFL-CIO and the NRA) amounted to approximately $1.75 per year per eligible voter, or a two-year sum of $3.50–about what it costs to rent a movie. In that two-year cycle, total spending on all elections–local, state and federal–was less than $10 per eligible voter, divided among many candidates. And because of the limits on the size of contributions, much of the money was not spent on the dissemination of political discourse but on the tedious mechanics of raising money in small amounts. Furthermore, the artificial scarcity of money produced by limits on political giving and spending has strengthened the incentive for the kind of spending that delivers maximum bang for the buck–harsh negative advertising.
Does a money advantage invariably translate into political potency? Try telling that to Forbes, who spent $440 per vote in finishing fourth in the Iowa caucuses. True, the candidate who spends most usually wins. But as Smith notes, correlation does not establish causation. Money often follows rather than produces popularity: many donors give to probable winners. Do campaign contributions purchase postelection influence? Smith says most students of legislative voting patterns agree that three variables are more important than campaign contributions in determining legislators’ behavior–party affiliation, ideology and constituent views. “Where contributions and voting patterns intersect, they do so largely because donors contribute to those candidates who are believed to favor their positions, not the other way around.”
Smith argues that limits on campaign giving and spending serve to entrench the status quo. As regards limits on giving, incumbents are apt to have large lists of past contributors, whereas challengers often could best obtain financial competitiveness quickly by raising large sums from a few dedicated supporters. If today’s limits had been in place in 1968, Eugene McCarthy could not have mounted his anti-war insurgency, which depended heavily on a few sixfigure contributions. As regards spending limits, the lower they are the better they are for incumbents: incumbents are already well known and can use their public offices to seize public attention with “free media”–news coverage.
The rage to restrict political giving and spending reflects, in part, the animus of liberals against money and commerce. There are, after all, other sources of political influence besides money, sources that liberals do not want to restrict and regulate in the interests of “equality.” Some candidates are especially articulate or energetic or physically attractive. Why legislate just to restrict the advantage of those who can make or raise money? Smith notes that one reason media elites are apt to favor restricting the flow of political money, and hence the flow of political communication by candidates, is that such restrictions increase the relative influence of the unrestricted political communication of the media elites.
To justify reforms that amount to government rationing of political speech, reformers resort to a utilitarian rationale for freedom of speech: freedom of speech is good when it serves good ends. This rationale is defensible; indeed, it has a distinguished pedigree. But it has recently been repudiated in many of the Supreme Court’s libertarian construings of the First Amendment. Those decisions, taking an expansive view of the First Amendment in the interest of individual self-expression, have made, for example, almost all restrictions on pornography constitutionally problematic. And such libertarian decisions generally have been defended by liberals who are most of the advocates of restrictions on campaign giving and spending.
But liberals of another stripe also advocate campaign restrictions. They are “political equality liberals” rather than “self-expression liberals.” They favor sacrificing some freedom of speech in order to promote equal political opportunity, as they understand that. Such liberal egalitarians support speech codes on campuses in the name of equality of status or self-esteem for all groups, or to bring up to equality groups designated as victims of America’s injustices. Liberal egalitarians support restrictions on pornography because, they say, pornography deprives women of civic equality by degrading them. And liberal egalitarians support restrictions on political expression in order to achieve equal rations of political communication for all candidates.
Prof. Martin Shapiro of the University of California’s Law School at Berkeley writes that “almost the entire first amendment literature produced by liberal academics in the past twenty years has been a literature of regulation, not freedom–a literature that balances away speech rights … Its basic strategy is to treat freedom of speech not as an end in itself, but an instrumental value.” And Bradley Smith says that “after twenty years of balancing speech rights away, liberal scholarship is in danger of losing the ability to see the First Amendment as anything but a libertarian barrier to equality that may, and indeed ought, to be balanced away or avoided with little thought.”
Fortunately, more and more people are having second thoughts–in some cases, first thoughts–about the damage done to the political process, and the First Amendment, by the utilitarian or “instrumentalist” understanding of freedom of speech. Campaign “reforms” have become a blend of cynicism and paternalism–attempts to rig the rules for partisan advantage or the advantage of incumbents’ or to protect the public from what the political class considers too much political communication. Any additional “reforms,” other than repeal of the existing ones, will make matters worse.
