Freedom of speech and campaign finance laws

In response to my Constitution Day blog post, a friend of mine sent me the text of a speech, “The Liberal Assault on Freedom of Speech,” given by a professor of politics at the University of Dallas, Thomas West. He comments on the impact of recent campaign finance legislation on the freedom of political speech in the United States, which is, after all, the most important sort of speech since it allows you to defend or regain the other sorts of speech.

Professor West is critical of laws like McCain-Feingold, which limits the ability of citizens groups to criticize–or support–political candidates and issues within certain time periods, viz. right before an election when such speech could have the most impact. He quotes several incumbent legislators who claim the laws are designed to limit negative ads and clean up politics. Of course, as people already in office and enjoying the numerous benefits of incumbency, I can see how their own interests might bias them in these matters. West also critiques regulation of the airwaves, such as the fairness doctrine which stifled discussion of politics on the radio and involved the government in what could be discussed until it was rescinded in 1987.

The speech reminded me of a 1997 article, “A Constitutional Campaign Finance Plan,” by Michael W. McConnell, who was at the time a Constitutional lawyer and is now a federal appellate judge sitting on the 10th Circuit Court of Appeals in Denver. He criticizes the current regime, writing that “McCain-Feingold … make[s] it a crime to run an advertisement stating your views on [a] candidate within 60 days of the election. Under no coherent reading of the Constitution could it be permissible to prohibit citizens and voluntary associations from attempting to persuade their fellow citizens how to vote. That is the very core of the First Amendment.”

He argues that spending money to persuade public opinion is very good but that spending money to buy access to politicians is bad; campaign finance laws should try to eliminate or limit the later without too seriously impinging on the former. He makes a number of very interesting suggestions towards these ends, such as eliminating PACs and raising individual contribution limits. 

Individuals have many different opinions and interests, and unless their contributions are large enough to warrant invitation to a White House coffee or its equivalent, the candidate does not necessarily know what those interests are. The interests of a PAC lobbyist, by contrast, are all too clear. It also bears mention that PACs give almost 13 times as much money to incumbents as to challengers–a sure sign that the purpose of the contribution is to buy influence rather than to persuade voters.

He also proposes banning campaign contributions for a certain period, such as six months, following election day.

The postelection fundraiser, where lobbyists scurry to placate the winner, may be the most undisguised form of influence peddling in our entire system. It is particularly disgusting to see lobbyists who supported the loser suddenly switch sides. This abuse can be banned without injury to freedom of speech. Postelection contributions cannot possibly serve the function of persuading our fellow citizens how to vote. It is simply a way for the holder of public office to use his position for personal political advantage–and for lobbyists to curry favor without any danger that the other side might win.

An extension of this idea would be to require all political campaign contributions to be used by the recipient within a specified period (no longer than six months). This would prevent incumbents from amassing “war chests” to scare off potential challengers. It is hard to believe that contributions made years before the election, and before the contributor even knows who the opposing candidate might be, is a good-faith attempt to persuade. It is almost certainly an attempt to buy influence.

I think that most people are concerned about the influence of money on politics and we don’t want elections to be bought and sold.  However, we shouldn’t pass finance laws that amount to incumbent protection acts in the pursuit of reform.  There are much better ways to eliminate the bad effects of money in politics without removing our rights to support the causes and candidates that share and represent our views.

Unfortunately, since he’d be willing to strike down McCain-Feingold, McConnell is unlikely to be elevated to the Supreme Court if McCain wins, and Obama would also be unlikely to promote him, though Judge McConnell is a stud on the first amendment and has a libertarian bent that I rather like; he’s one of my two favorite federal appellate court judges.  You can read several more of his essays here; he opines on Bush v. Gore and Roe v. Wade, both of which he criticizes.

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