If money isn’t speech, as advocates of campaign finance restrictions wishfully insist, then why does your local NPR station persist in conducting those annoying pledge drives?  If money isn’t speech, why does Rupert Murdoch want to own the Wall Street Journal?  Why do unprofitable political publications require financial angels to survive?  Of course, money is speech, in effect, as Harvey observes below, (and as crtitics of campaign finance restrictions regularly point out; we have been having this argument for years.)   Money translates into speech, just as money translates into reproductive choice or access to equal education.  Like it or not, money facilitates the exercise of rights.  You can protest or lament that fact, but you cannot wish or declare it away. 

        Because money is speech, (at least until the revolution,) just as money is reproductive choice, some civil libertarians advocate alternative, public financing schemes for political campaigns, as Harvey describes.  Their goal is to expand, not restrict, opportunities for political speech.  Similarly, liberal supporters of abortion rights advocate publicly funded abortions for women in need. They seek to subsidize reproductive health care for poor women, not limit the care that rich women can buy for themselves.

        Public financed political campaigns are complicated and rightly controversial.  How should government officials determine who is eligible for campaign subsidies; should taxpayers be required to provide financial support for candidates they oppose?  But, for all their flaws, at least proposals to subsidize political candidates are efforts to address reality, not deny it. 

7/29/2007 5:12:11 PM by Wendy Kaminer | Comments [1] |  

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.

7/25/2007 6:00:41 PM by Harvey Silverglate | Comments [1] |  

By Wendy Kaminer         

         Civil libertarians have good reason to mourn the Supreme Court’s latest rulings eviscerating student speech rights and empowering the president to divert public funds to sectarian religious groups.  In the wake of the Court’s earlier decision this term upholding bans on second trimester abortions, these cases confirm that the Court is now pretty firmly under the control of authoritarian (not libertarian) conservatives.  Occasionally the conservative majority will rule in favor of liberty; expect it to do so when the liberty interests align with the interests or biases of conservatives, as they do in debates about campaign finance restrictions.  
       
        The “liberal” wing of the Court, which in saner times would be described as centrist (with the possible exception of Justice Ginsberg,) dissented from Chief Justice Robert’s majority opinion in the campaign finance case, which limited a provision of the McCain Feingold law that greatly restricted the political speech of corporations and unions.  Naturally, many liberals and other reformers intent on somehow divorcing money from politics (an effort akin to trying to divorce teenagers from sex,) considered this ruling another defeat.

        But McCain Feingold is an illiberal bill that restricts much more than the speech of presumptively “evil” corporate speakers.  The provision struck down by the Court also applied to not for profit advocacy groups, like the NRA, NARAL, and the ACLU, and it prohibited these groups, as well as corporations and unions, from using general funds to broadcast “electioneering communications” that merely mentioned a candidate’s name 30 days before a federal primary and 60 days before a general election.  What was an electioneering communication under McCain Feingold?  It included “issue ads,” like an ad by a gay rights group that said, “Call Congressman X and tell him how you feel about a constitutional amendment prohibiting gay marriage.” 

        It should be obvious that this restriction on “issue ads” was an unconstitutional restriction on core political speech, which the Court rightly rejected.  And, surely, reformers interested in good government should vigorously oppose laws like McCain Feingold that criminalize ads criticizing members of Congress (or their positions on public issues) during their re-election campaigns.  (No one should be surprised that a campaign law enacted by incumbent legislators benefits incumbents.) But I suspect that a lot of people reflexively support campaign finance restrictions in the mistaken belief that they simply muzzle fat cats bent on corrupting the process.  In fact, they muzzle ordinary citizens (as former FEC chair Bradley Smith explains in the WSJ.) And, in some ways, they enhance rather than restrict the advantages of the ultra-rich in election campaigns, as the proliferation of 527's has shown.
       
        Restrictions on issue ads and similar “reforms” also translate into law the familiar, lamentable, de facto principle that a free press belongs to those who own it.  As many of us have observed, McCain Feingold potentially amplifies the voices of press titans, like Arthur Sulzberger and Rupert Murdoch, who retain their rights to publish editorials discussing issues or directly attacking candidates whenever they choose, while advocacy groups, representing millions of individual citizens who don’t own newspapers or radio stations, effectively lose the right to purchase broadcast time for similar purposes.  But, you’d never know this from reading the New York Times editorial page; in criticizing the campaign finance decision, the Times accused the Court of “magnifying the voice of wealthy corporations and unions over the voice of candidates and private citizens,” resorting to precisely the kind of misleading sloganeering that laws like McCain Feingold are supposed to restrict.
   
        So while the Court is not consistent or intellectually honest in its defense of free speech, as the rulings this week show, neither are the New York Times and the many liberals who support McCain Feingold (sometimes without understanding its reach.)  This Supreme Court will hand liberals and civil libertarians many more defeats in the coming years; let’s make the most of occasional victories.

6/27/2007 2:58:16 PM by Wendy Kaminer | Comments [0] |  

         The Supreme Court heard yet another round of oral arguments April 25th on the ever-perplexing subject of so-called “campaign financing reform” – the efforts by Congress and the Federal Election Commission (FEC) to establish rules to limit, in the pet phrase of supporters of these laws, “the corrupting influence of big money” on our electoral system. I was glad to see that recent Pulitzer Price winner Charlie Savage’s report in the Globe articulated my long-held position that these laws are not only unconstitutional violations of the First Amendment’s free speech guarantee, but also unenforceable and hopelessly indecipherable.

         Before the court this month is the disastrous McCain-Feingold Act of 2002, the most momentous and well-publicized, and also the most futile, of the many congressional efforts over the last thirty years to limit the extent to which money influences politics. In a 2003 decision that has been rightly derided by free speech advocates, the court by a vote of 5-4 upheld the constitutionality of the Act’s ban on “soft money” and on TV ads that mention a candidate for federal office within 60 days of a general election.

This time around, the court is debating McCain-Feingold’s exception for certain “issue” ads, which are not considered political endorsements when they do not specifically mention the name of a candidate. It’s difficult, if not impossible, to separate ads touting issues from ads touting pols who support those issues. The insanity of this murky attempted boundary is what has occupied an enormous amount of time of judges, bureaucrats, and lawyers – all without achieving any clarity. The constitutionality of this provision is being challenged by the nonprofit Wisconsin Right to Life, an anti-abortion group.  The FEC penalized the group last year for airing ads urging Wisconsinites to contact the state's two U.S. senators and tell them not to filibuster President Bush's judicial nominees. Because one of those senators, Democrat Russell Feingold (coincidentally, one of the campaign finance reforms act’s namesakes), was up for reelection, the group was told that the inclusion of Feingold’s name turned its grass-roots anti-abortion campaign into an "electioneering communication" that could not be legally aired before the election.

          As the Wisconsin Right to Life example proves, the McCain-Feingold act, although well-intentioned, clearly tramples on one of the most fundamentally important guarantees of the Constitution: the right for a citizen to criticize one’s government and to petition for what the First Amendment calls “a redress of grievances.” In my view, there needs to be a major shift in the debate over fair elections and a newfound emphasis on restoring some sense of voter and candidate equality and access to the system without sacrificing free speech. Lawmakers should repeal campaign financing restrictions and instead institute a modest system of public financing of campaigns. Every candidate who demonstrates his or her credibility by collecting enough signatures would be eligible for public money to run a campaign. The American Civil Liberties Union has been proposing a system like this for decades, thus far to no avail. What the current system has gotten us is not a diminution in the role of money in politics – that would be simply impossible to achieve in a free society – but, rather, a system where the benefits of incumbency are huge because current officeholders have so much more access to money and to the news media than do the challengers. If we want to throw the bums out, we need to open up the system by getting rid of McCain-Feingold and other such ill-considered and unconstitutional restrictions on the free speech rights of the electorate.

 Meanwhile, Congress should abandon this absurd notion that support for issues and support for candidates can, or should, be separated. Citizens and political groups should be able to vocally support candidates however they see fit.. Let free speech and fair elections both flourish.

When rules are written to cut off money in one arena, that money inevitably finds its way into the electoral system through a back door. It’s a constant game of cat-and-mouse. Only a strictly enforced publicly funded campaign system could put this tiresome game to an end and, incidentally, put some of the army of campaign finance lawyers out of business.

        We have had some form of campaign finance restrictions for many decades, with the restrictions becoming stricter and stricter with each attempt at “reform.” In order to assess the impact of this effort to “wring big money out of politics,” one has simply to compare the quality of our politics, our political discourse, and our office-holders, with each passing decade. I rest my case.

 

4/27/2007 3:55:37 PM by Harvey Silverglate | Comments [0] |