Everyone understands the old, if somewhat cynical, refrain that "money talks" everyone, that is, except the Supreme Court. In his concurring opinion in the Court's recent decision upholding campaign contribution restrictions, Justice Stevens assures us that "money is property; it is not speech."
The Supreme Court's decision in Nixon v. Shrink Missouri Government PAC is sure to give new impetus to the advocates of campaign finance reform. A Missouri law passed in 1994 set limits on contributions to candidates for state office. The limits ranged from $250 to $1,000, depending on the office and the size of the constituency. These amounts were to be adjusted for inflation and at the time of the law suit challenging the limitations, the adjusted amounts ranged from $1,075 for statewide offices to $275 for state representatives with districts of less than 100,000 population.
The Court upheld these regulations as a legitimate effort to prevent the subversion of the political process by corruption or the appearance of corruption. Large political contributions always carry with them the suspicion of corruption because it is a well known fact that politicians are often "too compliant with the wishes of large contributors." The Supreme Court thus upheld its landmark ruling in Buckley v. Valeo (1976). In that case, the Court held that the First Amendment prohibited any restrictions on the amount that any a candidate can spend in elections on his own behalf because, the Court reasoned, this is a direct expenditure of money for "expressive activities" which implicated core First Amendment principles. Contributions, on the other hand, are meant to promote the speech of others and therefore can be regulated even if the contribution was meant to promote speech that the contributor agreed with and wished to promote. The Court ruled that a contribution is not itself speech it is merely an "undifferentiated symbolic act." Thus, a limit on campaign contributions "entails only a marginal restriction" upon freedom of speech. The Court reasoned that "a contribution serves as a general expression of support for the candidate and his views, but does not communicate the underlying basis for the support." After all, the Court concluded, the contributor is still free "to discuss candidates and issues" himself without restriction. Thus, campaign restrictions leave "communications significantly unimpaired" because it does not restrict the "symbolic value" of the contribution.
The result of the Court's decision in Buckley has been something of an anomaly. Wealthy candidates such as Ross Perot and Steve Forbes can spend their privates fortunes without limit in their own campaigns because, according to the Court, this is direct speech protected by the First Amendment. If, however, either Forbes or Perot wanted to contribute to the campaign of another candidate who shared their views and could articulate their message with greater charisma and effectiveness they would be limited to a $1,000 display of "symbolic" speech. To argue that this tilt in the direction of oligarchy is mandated by the First Amendment is hardly to be credited.
Another by-product of the Court's Buckley decision is "soft money" contributions, money given to political parties without the specification that it be spent on behalf of a particular candidate. Since "soft money" is not donated on behalf of an identified candidate no inference of corruption or impropriety can be made. Parties can spend money for general advocacy or voter registration drives and the like, but not advocacy on behalf of a designated candidate. It is, of course, virtually impossible for the Federal Elections Commission to police the precise boundaries between issue advocacy and candidate advocacy and the system itself is an open invitation to abuse.
Many have long recognized that limitations on contributions favor incumbents. Spending limits work in the favor of those who already hold office; it makes challenges difficult. The incumbent has name recognition and can use all the advantages of office holding to keep himself in power-indeed pork-barrel spending might be seen as a kind of campaign contribution in reverse. Here the politicians themselves "buy" voters using the resources of the federal treasury. Complex election regulations and reporting requirements also make it difficult for challengers; the start up costs are enormous and much of the limited spending must be used for high administrative costs. Incumbents are not unaware of the advantages of campaign finance regulations indeed they are its most enthusiastic proponents. Only a few politicians dare to point out the First Amendment implications of reform. After all, the surface attractions of reform are very popular; what reform promises, however, it simply cannot deliver. It works to the advantage of incumbency and a career in politics may be a greater spur to corruption than campaign contributions.
Government control over campaign finance will inevitably mean government control over politics. Government regulation of campaign finance is inseparable from government control of the electoral process itself. In this sense, government will not be just a neutral regulator but a faction with an interest to promote the perpetuation of the administrative state with its regulatory regime. Justice Thomas' dissent in Shrink went to the heart of the matter: "a contribution, by amplifying the voice of the candidate, helps to ensure the dissemination of the messages that the contributor wishes to convey . . . By depriving donors of their right to speak through the candidate, contribution limits relegate donors' points of view to less effective modes of communication." And this, as Thomas hardly needs to point out, violates the freedom of speech guarantees of the First Amendment. Indeed, it permits "government to second-guess the individual choices of citizens partaking in quintessentially democratic activities." Government's responsibility in a democracy is to create the conditions whereby the electorate can make free choices. It is specifically forbidden from skewing the results of elections; this is precisely what campaign finance regulations do.
Unlimited campaign contributions with full disclosure will serve the cause of democracy better than any scheme that stacks the deck in favor of incumbents.