POLITICS FEBRUARY 14, 2000
Supporters and opponents of campaign finance reform agree on little except for this: the compromise that the Supreme Court imposed on the nation 24 years ago in Buckley v. Valeo has collapsed. In Buckley, the Court held that Congress could regulate political contributions--that is, the money people donate to candidates--but not political expenditures--that is, the money candidates spend on themselves. The theory was that giving money to a candidate is not really a form of expression, while spending money to win an election is. The Court also suggested that expenditures are less corrupting than contributions, because candidates can't corrupt themselves.
This logic didn't make a lot of sense in 1976, and it makes even less today. Rich corporations and donors have found a way around the contribution limits: they give huge sums directly to the parties, in so-called soft money donations that aren't subject to the restrictions upheld in Buckley. The parties use this money for "issue advocacy," or ads that promote a politician and attack his opponents without explicitly urging his election.
The breakdown of Buckley invites two possible responses: Either deregulate the campaign finance system completely (except for immediate disclosure of contributions and perhaps public subsidies to candidates who accept voluntary caps) or regulate it much more comprehensively. Last week, the Supreme Court cleared the way for more regulation when six justices announced that state limits on contributions were constitutional. The justices also signaled their willingness to uphold even more stringent regulations in the future-- including not only soft money caps (the reform John McCain touts) but perhaps even caps on spending by wealthy candidates, whose expenditures, as Justice Stephen Breyer noted, might be considered contributions to their own campaigns.
But, despite its purported pragmatism in giving Congress and the states room to experiment, the opinion in Nixon v. Shrink Missouri Government PAC ignores a stark reality: the Internet age has made campaign finance regulation impossible. If Congress and the states ever embraced strict soft and hard money limits, rich donors would simply channel their money into other forms of political speech--such as cable television and Internet publishing--that receive the highest First Amendment protection. Now that technology has broken down the lines separating publishers, corporate donors, and independent advocacy groups, campaign spending can't be regulated in any form without trampling on the Constitution.
In his candid dissenting opinion, Justice Anthony Kennedy noted the "plain fact" that the Buckley compromise "set the stage for a new kind of speech"-- which he called "covert speech"--"to enter the political system." Kennedy's argument that regulation forces political speech underground dovetails with a recent article by Samuel Issacharoff and Pam Karlan in the Texas Law Review. Money is a moving target, the article argues, and it will always evade regulation by finding the path of least resistance. If Congress clamped down on soft money, for example, the funds would flow further upstream, toward political action committees and independent-expenditure committees. This might be even worse than the status quo: unlike the national political parties--stable institutions whose survival depends on their ability to appeal to a broad constituency--ads funded by PACs are designed to appeal to the fringe. It's no coincidence that the Willie Horton ads in 1988 were paid for by an independent advocacy group that has now disappeared; similarly, a desire to avoid restrictions on campaign contributions was one reason the National Rifle Association in 1994 lavished money on single-issue ads that left the Democrats reeling.
This doesn't daunt the most zealous reformers: they would follow the money even further upstream, resorting to direct regulations on speech. The original version of the McCain-Feingold campaign-reform act proposed to limit advocacy ads 60 days before an election. But even this obvious violation of the First Amendment wouldn't keep wealth from influencing public debate. In their article, Issacharoff and Karlan ask hypothetically whether the reformers would clamp down on Martin Peretz to prevent him from writing a sympathetic Diarist about Al Gore, his friend and former student, in The New Republic. The question highlights the increasing futility of campaign finance regulation in an age of new media technologies. When Marty bought tnr, around the time Buckley v. Valeo was decided, there were only a handful of opinion magazines, and no TV stations, for a politically engaged millionaire to bid on. Twenty-five years later, the rise of the Internet and the explosion of digital and cable television and radio have created virtually unlimited possibilities for candidates and their supporters to reinvent themselves as publishers, who can't be regulated without doing violence to the First Amendment. In 1998, the Federal Election Commission had to back away from its claim that columns written by candidate Steve Forbes were an illegal corporate contribution by Forbes magazine to the Forbes campaign.
And so, as Walter Dellinger of the Duke University School of Law suggests, if Congress tried to prevent individuals and corporations from contributing to political parties or from taking out ads in The New York Times, the wealthy would start new opinion magazines on the Internet or buy radio and TV stations instead. In the Internet age, it's almost impossible to draw constitutional lines between opinion magazines, campaign newsletters e-mailed to registered voters, and the websites of the NRA, Rupert Murdoch's Fox TV network, or AOL Time Warner. As Justice Clarence Thomas noted in his powerful dissenting opinion in the Shrink Missouri case, Buckley erred by assuming that "speech by proxy" is entitled to less constitutional protection than unmediated speech: "Even in the case of a direct expenditure, there is usually some go-between that facilitates the dissemination of the spender's message--for instance an advertising agency or television station." But Thomas failed to note that if Congress regulates campaign expenditures in the age of digital spectrum and cyberspace, politically committed donors and candidates can eliminate the go-betweens and take over the means of publication.
The traditional justification for campaign finance reform has been to prohibit outright bribery or other forms of quid pro quo--that is, to prevent politicians from offering legislative favors to donors. This rationale did not, however, form the basis of the Shrink Missouri decision. In his opinion for the Court, Justice David Souter announced that free speech could be regulated in the interest of avoiding "corruption or the appearance of corruption." But Souter went on to emphasize that he didn't mean "corruption" in the traditional sense. "In speaking of 'improper influence' and 'opportunities for abuse,'" Souter said, the Court was recognizing "a concern not confined to bribery of public officials, but extending to the broader threat from politicians too compliant with the wishes of large contributors."
But, if corruption is defined so broadly that it occurs whenever politicians appear to be "too compliant with the wishes of large contributors, " it, like the press, can't be regulated without striking at the heart of the First Amendment. In a pluralistic society, some citizens will always have more influence on elected officials than others. Some care more passionately about certain issues, some lobby more intensely, and some have social or family connections that give them access to politicians in informal settings. The Court never tells us who decides how much influence is too much.
Of course, not everyone agrees that pluralism, in which some citizens have more influence on politics than others, is the best way to conduct a democracy. Burkeans believe that constituents should have almost no influence on their representatives; radical egalitarians believe each citizen should have precisely the same influence; populists believe in government by plebiscite. But, as Kathleen Sullivan has argued in the University of California at Davis Law Review, "selecting one vision of good government is not generally an acceptable justification for limiting speech."
In his concurring opinion, Justice Breyer suggests that the First Amendment does allow the state to prefer a communitarian vision of democracy over a more pluralistic vision. "The Constitution often permits restrictions on the speech of some in order to prevent a few from drowning out the many--in Congress, for example, where constitutionally protected debate ... is limited to provide every Member an equal opportunity to express his or her views," he writes. But the people of the United States, unlike their representatives in Congress, are not participants in a town meeting where membership is limited and only one person can speak at a time.
In the era of talk radio and the Internet, there are almost unlimited opportunities for politically engaged citizens to receive and express competing viewpoints about politics. The notion that wealthy voices necessarily drown out poor ones is, as Daniel Ortiz of the University of Virginia has noted, untrue: anyone with a telephone and a modem can educate herself about the candidates and publish her opinions for the world to read. Some campaign finance reformers worry that most citizens won't take advantage of the new outlets for cheap speech and that lazy voters who get their political information mostly from network television may be unduly influenced by TV ads, which are paid for by the rich. But the idea that citizens can't decide for themselves how to receive information about politics and should be denied the right to watch attack ads on ABC in the hope that they will then watch "Newshour with Jim Lehrer" is paternalistic in the extreme.
Defining inequalities of political influence as "corruption" has one final perverse effect. Eliminating political inequality in a free society is so utopian a goal that a rational court might conclude that, since those who seek more political influence will always evade the regulations, all campaign finance restrictions are irrational. Last October, for precisely this reason, a federal judge in Philadelphia concluded it wasn't frivolous to argue that the long-standing ban on direct corporate contributions to candidates might be unconstitutional. " T he ostensible purposes of a ban on corporate contributions to candidates for federal elective office--eliminating the corruption and appearance of corruption resulting from corporate contributions to individual candidates," the judge noted, "is completely undermined by the allowing of 'soft money' contributions by corporations," which raise a similar appearance of corruption. Because political inequality is endemic in a democracy, the judge concluded, no regulation might be more rational than ineffective regulation.
In the Shrink Missouri case, Justices Breyer and Kennedy encouraged Congress and the states to rationally regulate campaign finance consistent with the First Amendment. But the 24 years since Buckley have made clear that this admirable goal can't be achieved and that second-best solutions in campaign finance reform are often worse than doing nothing at all. This is hardly cause for celebration. It is, however, a reason to overturn Buckley and to abandon the futile quest for mandatory spending restrictions once and for all.