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30.5

Campaign Freedom

Summary:

There shall be no restrictions on the amount of political contributions or expenditures made in connection with federal elections or issues as long as they are promptly disclosed.

Campaign Freedom: Proposed Language

Congress shall have no power to pass any Bill limiting the amount of contributions by any United States domiciliary corporation or organization or citizen to any corporation, organization, or person for political purposes involving federal policy or federal candidates nor limiting the expenditures of any of the foregoing as long as both the contributions and expenditures are fully and promptly disclosed to the public by the most public and technological means available for such purpose.

Commentary:

 

The Problem.

Few issues provoke as much controversy as the money spent in politics. Many say, “Money in politics is bad.” This mantra is repeated by many, both conservatives and liberals, Republicans and Democrats. When the majority believes the mantra, it ends up with laws restricting what messengers with undesirable messages can do. The very existence of these laws implies that money in politics is bad without any real discussion over why money in politics is bad and, even if so, whether the available methods of regulating the money can control the harm without undermining the values of a democratic society governed on the premise that each individual voter knows best and can filter out bad messages from good messages.

No one doubts the First Amendment right of every person to voice his opinion on anything including political issues. However, as these persons combine to exercise this right, they risk opprobrium. Among those in this class are businesses which advertise, the rich who attempt to influence elections, politicians who attempt to influence elections, political action committees which attempt to influence elections, unions which attempt to influence elections, and the media which attempts to influence decision making on a broad range of issues including public policy and elections.

This opprobrium is particularly assigned to that class of persons we call “rich.” Thus, the messages of the rich are held in great suspicion along with speculation that their messages are bad and will likely lead to corruption or the appearance of corruption. Even if the objectors to the messages of the rich are right, then the question is who decides what messages are harmful or that those delivering the message should be shut down or that those hearing the messages will be unable to determine for themselves that the messages are harmful? And, what is the reason that they can censor the rich but no others or determine what subjects or viewpoints are subjects which should be legally disfavored? And who is to say that someday they will not censor a group other than the rich by finding, for example, another First Amendment exception?

So why is it that a huge segment of society fears the message of the rich but not the messages of other groups? For example, no one questions the right of the media to broadcast its several messages, even though media people are known to be politically biased along with everyone else and have the power to hire those emissaries who will reinforce their views. Why is it that people oppose rich people broadcasting their message, whether singly or in association with others, and not rich corporations in the media business? The reason cannot be that they disagree with the messages because they can vote in a manner to undermine the messages. Rather, it has to be their fear that others will improvidently agree with the messages.

Legislative Responses to Problem.

This is not a recent problem. Fifth century Greeks had major concerns that the monied interests (oligarchies) would take over if not checked. They protected themselves by limiting the power of office holders, not restricting the use of their money. Paul Woodruff in First Democracy (2005) said, “Because the Athenians wanted to curb the power of wealth, they severely restricted the powers of those who held elected office. So the representative bodies in Athens were filled not by elections, but by a lottery that drew from a large panel of citizens… such a body would be too large to bribe….” The Roman republic weakened in its latter days because of the influence of monied interests and a corresponding diminishment of the rule of law. In our country, the power of wealth is controlled by giving the vote to all citizens of lawful age. Yet, this is not deemed sufficient by a large group of Americans.

The result was that Congress enacted laws limiting the amount of contributions using the Federal Election Commission as the policeman. The Federal Election Act of 1971 (amended 1974) was ruled on by the Supreme Court in Buckley v. Valeo, 424 U.S. 1 (1976). There, the Supreme Court said that a candidate could spend as much of his own money as he wanted but that other people could not contribute more to his campaign than a specified amount. This gave an advantage to wealthy people running for public office. Corporations and labor unions were prohibited from making contributions.  The Supreme Court justified its ruling on candidates based upon their First Amendment rights and justified the second part of its decision on a perception, not a fact, that too much money would lead to corruption and that it was a valid governmental interest to prevent corruption or the appearance of corruption. The court later extended this governmental interest to preventing distortion caused by wealth which has “little or no correlation to the public’s support for the corporation’s political ideas.”

In 2002, Congress passed amendments to the law barring corporations and unions from making independent electioneering expenditures. In 2010 the Supreme Court in Citizens United v. Federal Election Commission, 130 S.Ct. 876 (2010), ruled that corporations were allowed to make independent political expenditures without limitation. In doing so, the court, relying in part on Federalist No. 10 (Madison) (“destroying the liberty [of some factions is] worse than the disease”), concluded that independent corporate expenditure was a free speech right and did not give rise to corruption or its appearance and that the distortion argument was likewise unfounded. The court found there was no rational support for the view that media corporations should be exempt from restrictions imposed on other corporations. The court noted that “Speech is an essential mechanism of democracy” and that the First Amendment “stands against unjust attempts to disfavor certain subjects or viewpoints.” Unmentioned was that when there were no restrictions at all, when there were no disclosure requirements, there were no celebrated cases of fraud or the appearance of fraud or wealth created distortion. Today, potential fraud and corruption seem to be the primary argument for why government regulation should apply and are the main reasons given in most commentaries on why Citizens United is bad law. Yet, fraud and corruption have always been illegal and restrictions on campaign spending laws are not needed to stop it. The fact is no one knows whether a policy of unlimited contributions would be good or bad.

In Western Tradition Partnership, Inc. v. Attorney General, 271 P.3d 1 (Mont. 2011), the Montana supreme court reversed a lower court which found that Montana’s statutory restriction on corporate donations was unconstitutional. The relevant issues were succinctly raised by the court’s comments:

Citizens United was a case decided upon its facts, and involved “unique and complex” rules that affected 71 distinct entities and included separate rule for 33 different types of speech in Federal elections. Since 1975, the Federal Election Commission adopted 568 pages of regulations, 1,278 pages of explanatory materials, and 1,771 advisory opinions to implement and enforce the Federal law. The FEC adopted a two-part, 11-factor test in response to the holding in a single Supreme Court decision. If parties want to avoid litigation and possible penalties they must either refrain from political speech or seek an advisory opinion. All of this, the Supreme Court found, allows the FEC to “select what political speech is safe for public consumption by applying ambiguous tests.” Citizens United, 130 S.Ct. at 895-96. The Court determined that the law was “an outright ban, backed by criminal sanctions.” Citizens United, 130 S.Ct. at 897.

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While Citizens United was decided under its facts or lack of facts, it applied the long-standing rule that restrictions upon speech are not per se unlawful, but rather may be upheld if the government demonstrates a sufficiently strong interest. Citizens United, 130 S.Ct. at 898.

After analyzing the facts in Montana, the Montana Supreme Court found that the Montana government had demonstrated a “sufficiently strong interest” to justify its statute. It is somewhat disheartening to think that a corporation, to protect its First Amendment rights, must litigate amidst a morass of rules to determine its rights when, in the last analysis, some one or few individuals will have the right to decide whether a “sufficiently strong interest” has been established by the government. The Supreme Court agreed and reversed the Montana ruling in one page in American Tradition Partnership, Inc. v. Bullock, 132 S.Ct. 2490 (June 12, 2012).

Apart from the corruption or appearance of corruption arguments, many people believe that it is not fair that wealthy people should have a huge advantage in the election process because of their wealth.  They say that the “playing field” should be leveled and that lesser known persons of modest means should be given a fair chance.  The result of this sentiment has resulted in the so-called “clean election laws” which have been passed in a number of states.  These laws generally provide that candidates wishing government financing can elect to receive it as long as they “qualify”, usually by petitions from a certain number of voters, agree to restrictions on expenditures and comply with other regulations.  In some cases, these laws increase the amount available to publicly financed candidates based on the amount of spending done by the privately financed candidates.  The Supreme Court declared portions of Arizona’s law unconstitutional in Arizona Free Enterprise Club’s Freedom Club Pact v. Bennett, 131 S.Ct. 2806 (2011), with the following opening paragraph:

Under Arizona law, candidates for state office who accept public financing can receive additional money from the State in direct response to the campaign activities of privately financed candidates and independent expenditure groups.  Once a set spending limit is exceeded, a publicly financed candidate receives roughly one dollar for every dollar spent by an opposing privately financed candidate.  The publicly financed candidate also receives roughly one dollar for every dollar spent by independent expenditure groups to support the privately financed candidate, or to oppose the publicly financed candidate.  We hold that Arizona’s matching funds scheme substantially burdens protected political speech without serving a compelling state interest and therefore violates the First Amendment.

The Arizona Free Enterprise opinion reminds us (1) that the First Amendment “has its fullest and most urgent application to speech uttered during a campaign for political office”, (2) that the First Amendment does not permit a state to sacrifice speech for efficiency in the election process, (3) that equalizing the financial resources of candidates violates the First Amendment rights of those who wish to spend more and (4) that leveling the playing field, while sounding like a good thing, requires the intervention of potentially unaccountable judgments by others thereby conditioning First Amendment rights of one citizen on the judgment of another.  The court also reminded us that “In a democracy, campaigning for office is not a game.  It is a critically important form of speech.”

The court declared certain provisions of the Arizona statute unconstitutional because the process permitting the state to finance publicly supported candidates based upon monies contributed to privately financed candidates forced a candidate “to choose between the First Amendment right to engage in unfettered political speech and subjection to discriminatory fundraising limitations”.  The court also noted that a candidate or independent group might not spend money if the direct result of that spending was additional funding of its political adversaries, a process which would also have a chilling effect on First Amendment rights.

All of this is not to say that there is not some legislative basis available to states to give promising candidates a chance to get their name out in the public.  On the other hand, one has to ask himself whether this is even necessary when someone like President Obama, who was unheard of until 2004, could in the course of four years become President of the United States.

Human Nature and the Importance of Campaign Freedom.

Apart from the law, the facts are clear. It is a feature of human nature that no matter what the law is money will show up to influence elections. This is especially true as long as people have a monetary interest in the decisions of Congress. The Supreme Court acknowledged this to be the case in Citizens United. Because of this, the existing restriction on the amount citizens can contribute to a candidate is likely unconstitutional. Candidates should not be shackled by contribution limitations in their effort to rebut claims made by independent organizations which have no such limitations under Citizens United.

One thing is clear: the efficacy of any message is a function of money. Yet, is the efficacy of a message the content of the message or the messenger? President Obama is known for having spent almost $750 million on his 2008 campaign for president. On January 1, 2008, there were 4,234 political action committees authorized by Congress to appease those who object to “big money”. These PACs are expected to spend $9.8 billion in 2012 with 57¢ of every dollar going to TV. The media, having an estimated equity value of about $1 trillion, sends out its messages on a daily basis in a form an ordinary person can hardly avoid, spending as he does at least 5 hours per day connected to the media in one form or another.

What does it say that so many favor curbs on spending in federal elections? What does it say about their confidence in democracy? Does it say that, if you don’t like the message, get rid of the messenger? Does it say that they can trust some government agency to decide what messages are good or bad or in the public interest? If they believe the electorate is not competent to filter out disinformation and messages they find unsatisfactory, is it because they do not support democracy but rather a form of government where wise people in power with access to more information will make better decisions for the electorate than it can make for itself.

Are we to assume that the average voter is incapable of resisting the persuasive content of political advertisements? You may not like big money in politics but are you willing to admit that you, a sovereign voter, are powerless to overcome its consequences? What is wrong with allowing American people to make up their own minds? If you disagree, you have to believe the average voter cannot be trusted to make up his own mind. This requires that you select some other person to make it up for him. This is the end of freedom and the best case for doing away with democracy all together. This also explains James Madison’s comment above.

We believe, as long as contributions and expenditures are disclosed promptly, that voters can deal with this information in a responsible way and that the existing layers of law and regulation serve only to obfuscate who is really behind a particular candidate. Moreover, the complexity of election rules chills the number of candidates willing to run. It is a grim observation that no person should run for federal office without a good lawyer and a good accountant. We cannot be proud that the hurdles facing candidates for federal office deny us many potentially good leaders.

We also believe the First Amendment has no favorites. We believe any form of restrictions on the ability to broadcast messages is a form of unlawful discrimination, motivated by fear of the message and not fraud or corruption which can be dealt with by more traditional means.

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