Campaign reform must not occur at the First Amendment’s expense

Wednesday, March 4, 1998

The recent debate over campaign finance reform has once again demonstrated that, despite lofty constitutional language and a rich historical tradition, the First Amendment is still not as sacred in the United States as Social Security and the mortgage-interest deduction.

As everyone knows, Social Security is untouchable; any effort to reform it would leave the reformer roasting on the third rail of American politics. While the tax code is frequently overhauled, the mortgage-interest deduction is similarly off-limits. When issues raise First Amendment concerns, however, many legislators and judges show little hesitation in embracing the politically popular solution, even if that solution treads on First Amendment freedoms.

We see these attacks on the First Amendment almost daily—when a judge gags witnesses and lawyers so that jury selection will be easier, when a state legislature decides that it is easier to support religious schools than it is to improve the public ones, when Congress determines that it is politically easier to regulate tobacco advertising than it is to restrict tobacco use.

Those seeking to reform campaign financing take a similar approach. Unwilling to suggest ideas that would threaten the status quo or actually lead to true reform, they are content to tinker around the edges, even when their tinkering creates significant risks to the First Amendment. Fortunately, their most recent tinkering has been rejected, and the risks to the First Amendment have temporarily subsided. Unfortunately, however, it appears that those risks did not influence many on either side of the issue.

At least before Congress, campaign finance reform is a political issue, not a constitutional one. As is demonstrated in the First Amendment Center's “Money Talks” series, the First Amendment played only a minor role in the recent reform debate. Efforts to reform campaign financing undoubtedly will return, however, and defenders of the First Amendment must strive to better educate members of Congress and the public about the danger that campaign finance reform poses to free speech.

Actually, of course, many forms of political speech are not “free.” Political speech has become increasingly expensive, and campaign finance reform is aimed at many of the methods employed to directly and indirectly fund this speech. The fundamental First Amendment issues in campaign finance reform are whether restrictions on these funding methods are equivalent to restrictions on speech and, if so, whether the state of campaign financing is so bad that it is necessary to sacrifice some political speech in order to save the democratic system.

Under a traditional First Amendment analysis, few, if any, of the proposed restrictions on campaign contributions and expenditures would be constitutional. In Buckley v. Valeo, the Supreme Court recognized 22 years ago that, at least in politics, it is difficult to separate money from speech. Therefore, while the Court upheld limits on direct contributions to candidates, it struck down restrictions on how much candidates and supporters could spend during campaigns. These restrictions, the Court said, “necessarily reduce … the quantity of expression by restricting the number of issues discussed, the depth of their exploration, and the size of the audience reached.”

The new efforts to curb these types of expenditures also are inconsistent with traditional First Amendment philosophy. Campaign spending is not the first type of speech that has generated legitimate concerns. For more than 200 years, however, the response to these concerns, whether in the context of libel, advertising or access to public places, has been to encourage more speech rather than to censor “bad” speech. This “marketplace of ideas” approach to First Amendment issues is based almost entirely on the belief that the public, if given enough information, can be trusted to make decisions that are in its and the country's long-term best interests.

Campaign finance reformers appear to have little faith in the public. They fear that the public is unable to make informed choices under a system in which, they claim, only the wealthy can run and win, large donors have too much influence and access and the ever-increasing need for campaign funds corrupts the process. While these concerns are justified, the reformers overestimate the gullibility of American voters.

Ask Ross Perot, for example, whether all a candidate needs is money. Wealthy candidates, especially in local races, surely have an advantage, but the advantage of wealth is nothing new to most Americans. They see it every day in car showrooms, on golf courses and in shopping malls. No evidence exists that voters are unable to evaluate this advantage.

Moreover, the recent hearings on campaign finance abuses demonstrated that most Americans are neither surprised nor terribly disturbed by the fact that money buys influence and access in government. Would most prefer a purer system in which all issues were decided on their merits? Of course. But for all the bashing of “special interests” that occurs during campaigns, most voters quietly realize that they, whether through the AARP, their unions or their professional or trade organizations, compete on a fairly level playing field for this influence and access.

The hearings similarly demonstrated that voters are not outraged by behavior that is acceptable if it happens in one room but illegal if it happens in another. Voters have a wide range of experience and they have seen the NCAA discipline too many college athletic programs for buying a recruit a $20 shirt to be surprised when a candidate runs afoul of incomprehensible and nonsensical campaign regulations.

While the reformers' concerns are legitimate, they are not compelling enough to justify restrictions on free speech. The Court recognized as much in Buckley. If campaign finance abuses become serious enough, the voters have the power to implement the ultimate reform. That does not mean, of course, that campaign finance reform is not needed or that it can occur only by overturning Buckley. Rather, it means that reforms must be accomplished in ways consistent with the First Amendment, which would have the additional benefit of respecting the intelligence of voters.

Full, immediate and meaningful disclosure of campaign contributions and expenditures would be a good place to start. Corruption will not survive long if it is subject to public and media scrutiny, and the disclosure of relationships between donors and policies would allow voters to evaluate candidates' sincerity and integrity. Making tax credits and free television time available to candidates who agree to voluntary spending limits also are good ideas, and Congress could learn from the experiences of at least five states when considering these programs. If reform became important enough, the major political parties also could agree to codes of conduct and spending limits.

Campaign finance reform and the First Amendment can coexist. Indeed, true campaign finance reform can succeed only if First Amendment freedoms remain in place and help produce an electorate that is fully informed and able to reject candidates who care more about fundraising than they do about the public good.

Douglas Lee is a partner in the Dixon, Ill., law firm of Ehrmann Gehlbach Beckman Badger & Lee and a legal correspondent for the First Amendment Center.