Speech and Money (Go Together Like a Horse and Carriage)

There was a show-tune ditty that was popular back when I was a kid, which younger readers might also identify as the theme song to Married With Children. “Love and marriage,” went the lyric, “go together like a horse and carriage. This, I tell you, brother: You can’t have one without the other.” In quite the same way, in the context of electoral politics, you can’t have speech without money.

While the internet has made engaging in free speech without a lot of money more feasible than ever, it remains true—especially in the context of campaigning for public office—that money remains the mother’s milk of politics. Of course, that is why the monthly reports on the relative viability of various candidates in both major parties focus not so much on opinion polls, but on fund-raising totals. Even though the amount of popular support a candidate enjoys ultimately affects his or her success at the ballot box, candidates without substantial cash on hand find it prohibitively difficult to make their case.

The problem is that the Bipartisan Campaign Reform Act— better known as McCain-Feingold—has significantly interfered with the ability of third party candidates and other political mavericks to gather together enough funds to inject dynamism and fresh ideas into a political system badly in need of change. (That act recently survived its latest examination by the Supreme Court even though its impact on pure political speech was significantly diluted.)

It’s hard to avoid the suspicion that Congress’ professed concern about the corrupting role of money in the political system may simply be a case of crocodile tears, since the percentage of incumbents being re-elected is about as high these days as it’s ever been. This logic leads to the conclusion that the advent of campaign financing law—beginning with The Federal Election Campaign Act of 1971—failed to create a cleaner, more vigorous political system. Instead, it led to a system in which the obstacles that new and maverick candidates face when launching electoral challenges to incumbents have become so overwhelming that during every election cycle nearly all incumbents get re-elected to the House and Senate. The cost of challenging an incumbent has skyrocketed. All of this might lead a cynic to conclude that campaign finance “reform” is simply a palatable cover for incumbent protection.

The reality of campaign finance restrictions is that they make it harder, not easier, for new voices to be heard, or for challenges against incumbents to be launched. This has occurred because the restrictions make it difficult for newcomers to the political system to overcome the inherent fund-raising and communications advantages of incumbency. In the celebrated 1976 case of Buckley v Valeo, the Supreme Court upheld campaign finance restrictions in principle and rejected rejecting an overall First Amendment attack, even though the court held that certain kinds of money flows, such as personal funds spent by a wealthy candidate for his own campaign, could not be restricted. I hear my fellow liberals chant about the necessity of freeing politics from the grip of big money, but in fact big money manages rather well to find its way into the political system. It’s those who oppose business-as-usual who are unable to buy the time and venues for being heard by the voters.

In addition to this reality comes what should be obvious to readers of The Free For All—that restricting campaign contributions is a backdoor way of restricting free speech that is, or should be, protected by the First Amendment. This has long made me a supporter of the ACLU’s proposed solution. In 2001, it wrote a letter to the Senate opposing McCain-Feingold, in which it noted sarcastically that the act was “misnamed as ‘The Bipartisan Campaign Finance Reform Act of 2001,’” and was in reality “a destructive distraction from the serious business of meaningful campaign reform.” What is needed, noted the ACLU’s letter, is “a more First Amendment-friendly way to expand political opportunity.” This would entail “public financing for all qualified candidates…without the imposition of burdensome and unconstitutional limits and restraints” on political fund-raising. The ACLU’s commonsense – and constitutional – position on campaign finance is consistent with the position championed for decades by the organization’s now-retired executive director, Ira Glasser, who recommended that the law remove the ceiling from political fundraising by abolishing restrictions on how much a candidate may raise and from whom. Instead, the proposed solution would institute a floor – a minimal amount of public funding for viable and credible candidates so that they might increase the amount of political speech heard at election-time. “Examinations of many campaigns,” testified Glasser before the Senate Committee on Rules and Administration on 3/22/2000, “suggest that if the floor of support is adequate, there is no need to impose a ceiling.” The goal, after all, should be to expand rather than contract the amount of political speech. Liberals who support campaign finance laws that restrict free speech by restricting money are barking up the wrong tree. All they will assure is that we won’t be able to throw the damned rascals out.