September 28, 2005

Free speech and campaign finance.

Here is Linda Greenhouse's article on yesterday's cert grants in two campaign spending cases. She speculates that the Court might be ready to reconsider the key precedent, Buckley v. Valeo -- as it did not do a few years ago when it upheld the McCain-Feingold law, in a 5-4 case. Justice O'Connor contributed that fifth vote -- the others were Stevens, Souter, Ginsburg, and Breyer -- so expect to see the Senate Judiciary Committee to do some probing questions when Bush's next nominee shows up.

Greenhouse describes the key case, challeging state regulation:
The Vermont law was enacted in 1997 as a direct challenge to the Supreme Court's campaign finance precedents, or as Vermont's secretary of state, Deborah L. Markowitz, put it in an official memorandum, with the "express legislative goal of giving the Supreme Court an opportunity to re-evaluate its decision in Buckley v. Valeo."

While the law's strict contribution limits were notable, its main departure was in restricting campaign expenditures. Candidates for governor, for example, are limited to spending $300,000 in a two-year election cycle, regardless of whether the cycle includes a primary election.

In a 2-to-1 ruling last year, the United States Court of Appeals for the Second Circuit, which includes Vermont, endorsed the state's basic approach. It held that the state had correctly concluded that Buckley v. Valeo was not a complete prohibition on spending limits, but that such limits could be justified by rationales beyond the anticorruption rationale that the Supreme Court considered at the time.

These additional rationales included two that the appeals court panel's majority said were now "compelling": addressing the growing public cynicism about the impact of money on politics, and limiting the amount of time that candidates had to devote to raising money.

The appeals court then sent the case back to the federal district court in Vermont for a determination of whether in setting its spending limits, Vermont had chosen a sufficiently "narrowly tailored" means of achieving its valid objectives. In another portion of its ruling, the appeals court upheld the contribution limits.

The full appeals court then debated whether all 11 judges should rehear the case, and decided against rehearing by a vote of 6 to 5. The dissenters argued forcefully that no matter what state officials or lower court judges had to say, only the Supreme Court itself had the authority to cast Buckley v. Valeo in a new light.
This promises to be a very telling test of the new Court! It will be fun to see the defer-to-us routine the Judiciary Committee Democrats used against Roberts redone in the context where it entails minimizing Free Speech rights. That will be a little tricky, since the Democrats also like to project the image that they are the ones who really care about constitutional rights. Of course, Feingold himself will be on the Committee, and no one is better suited to articulating the tricky position than he is.


ambimb said...

I know I shouldn't but I just can't help it: Limiting campaign contributions or campaign spending does not entail "minimizing Free Speech Rights." Dollars are not speech, and speech is not free if you have to pay for it. Something like the "death tax," the "right to life," and other names or phrases those on the right of the political spectrum have invented to advance their objectives, this supposed association between money and speech is simply a rhetorical move to ensure that the side w/the most money always wins. While that may be what capitalism is about, it's not what democracy is about.

stealthlawprof said...

ambimb -- your first impression was correct -- you shouldn't.

If free speech only means cost-free speech, then the capacity of citizens to communicate on important issues is severely limited. Taken to its extreme, that position would leave newspapers, movies, cable broadcasts, weblogs, and every other device capable of reaching a mass audience subject to government regulation.

Of course, that is irrational. So, the campaign finance laws allow the established institutional media to convey their messages without restriction (and through the use of surrogate speakers), but the laws interfere when someone who does not have the money or inclination to own an institutional media outlet attempts to communicate a message or to support surrogates who will convey a message regarding the government and our representatives to the general public.

This apparent inconsistency exists because our representatives find it critical that they protect the public from being exposed to misinformation about them.

Money facilitates speech, and restricting money to be used for speech restricts speech. The notion that money taints politics is a fairy tale invented by incumbents who want to impair the ability of their opponents to challenge their re-election. JS Mill's battle between truth and error in the marketplace of ideas presupposes that the people are smart enough to discern truth from error when the fight is fair; it did not presuppose that the government would disarm some of the participants.

Restricting access to speech in the form of campaign finance restrictions is not democratic, it is democratic centralism.

ambimb said...

Clever and a little clarifying, thank you. I do not wish to subject mass media to government regulation. Your gloss on the contradictions of current campaign finance laws suggests that the compromise that's been struck is less than optimal. So what would you suggest we do?

The conclusory assertion that the "notion that money taints politics is a fairy tale invented by incumbents" strikes me as, well, naive and backwards. Do you really think that when Company X gives Politician Y a bunch of money for a campaign that X does not expect nor receive anything in return? And how does this "fairy tale" help incumbents? To me it's one of the best reasons to kick the incumbents to the curb -- they've been in the payola system the longest, have collected the most payola, and therefore are the most susceptible to the influences of donors and the least responsive to real constituent needs and wishes.

Although I'm not familiar w/JS Mill's battle between truth and error, your short description of it indicates that the ability of people to discern truth from error requires a fair fight. That is my goal, as well, and I just don't see how the fight can ever be fair when it is determined by dollars.

Finally, money does not facilitate speech; money facilitates dissemination of speech. But perhaps that's become a distinction w/out a difference....

Gene C Evans said...

"I do not wish to subject mass media to government regulation."

So you like their political biases and just want to silence people with different biases. Whoopee.

And no, the side with the most money doesn't always win, just ask George Soros how much of a return he got for backing Kerry.


Eli Blake said...

Why we can't have effective campaign finance laws as things are right now:

The problem with campaign finance is that people break the law anyway if you make it illegal. And not just DeLay (although today's indictment indicates that he broke the law by approving the check on the page I just linked to in order to funnel corporate donations to the RNC).

In most cases, the idea that someone might break the law wouldn't count as a reason to not have it, because of the inexorable movement of justice, but for campaign finance laws, things are a lot different. For example, in this case, even if DeLay is convicted, he was able to 'fix' the Texas electoral system to the extent that he probably has guaranteed that his party will remain in power for at least the next three election cycles, until it is time to redistrict again. For a 'true believer,' jail would be worth it for such a hefty success.

We had a similar case in my congressional district (one of about forty 'swing' districts in the whole country) in 2002. One candidate (the Republican, but this point would be just as valid if the reverse were true) spent a great deal of money on TV ads that actually and outright lied about his opponent, and he and his campaign managers knew they were lies. He won, largely as a result of the negative TV ads. His opponent sued for slander and the 'honorable' Congressman settled out of court for a large amount of money. All well and good for our 2002 Democratic candidate, and I suppose he is happy since he now has much more money than he would have made as a congressman, but it is the guy who was willing to lie on TV who now has the seat and is my congressman. (in 2004, with the advantages of incumbency he faced an outgunned opponent and it wasn't even close).

In order for campaign finance laws to work, justice has to be either swift or thorough (and since I don't support invalidating past election results because of the havoc it could cause, we are left with SWIFT). And rarely does that adjective apply to the justice system.

Moon God said...

I just had a question for Prof. Althouse. Judging from your post, would it be fair to say that you dispute the constitutionality of McCain-Feingold-type campaign finance reform laws? Please say yes! ;)

Ann Althouse said...


stealthlawprof said...

Politics have been ugly from time immemorial. Despite delusions to the contrary, campaign finance laws have done nothing to stop this; they have just given an additional advantage to the incumbent.

Undoubtedly, some politicians and corporations engage in influence peddling through campaign contributions. But the current, incredibly complex campaign finance laws have done nothing to change this.

The fairy tale is the notion that money taints politics as if politics were not already tainted long before big money and large media outlets on which to spend that money arrived on the scene. Furthermore, the idea that campaign finance laws will correct this is also a fairy tale. Campaign finance laws protect incumbents. They already have the press coverage and name identification. Limiting access to the public hurts challengers far more than incumbents. If you look at details of the McCain-Feingold law, you will see (and the committee reports will verify) that the rules there are designed to protect incumbents from uncomfortable surprises, inpart through restrictions on what can be said close to an election. That is not promoting the dissemination of information; it is supressing information.

Sure, sometimes lies are told late in a campaign, but do you suppress all speech to control some lies? Again, that is contrary to our traditional preference for open speech.

Speech without dissemination is useless (that, as an aside, is why there is a constitutional right to hear that is a corollary to the right to speak).

I am not naive enough to think that capitalism results in a perfect system for disseminating speech, but I will take it over the government controlling the distribution of information. In our modern world, it is much cheaper to reach a mass audience than it used to be, so it is much harder to argue that messages are getting lost completely for lack of money.

The solution is to require full disclosure of contributions and expenditures. Let the voters decide if they think the donation reflects an honestly held agreement on principle or a bribe. But do not let donors hide behind the shell games that current laws foster. Full disclosure. Sunshine has often been considered the disinfectant for corruption, and it will work better in campaign finance than any other solution. It is the only solution that is faithful to our constitution and the only one that can work. Nice combination.

ambimb said...

Ah, I get what you're saying now. Thank you for taking the time to make it clear. It's hard to go to bat for campaign finance controls against that kind of analysis; however, I still have a problem with reducing speech to dollars as people so often do when they argue against campaign finance reform. Your description of the situation doesn't make such a simplistic reduction, which is why I like it. I'll have to think more about this.

The sunshine idea is great; the problem remains that the only real way to shine the light in on full disclosure is if the media decides to report it, but if the media is the corrupt player in the first place (the "special interest" who is trying to influence outcomes via campaign donations), how is the sunshine going to do its disinfecting?

stealthlawprof said...

Again, the institutional media cannot be given status as if they are the only source of information. They would like preferred status; the Court wisely has avoided that except through the backdoor with campaign finance cases. The more sources of information we foster, the more diversity of viewpoint we will see, and the more likely that a damaging disclosure will get publicized.

In this era especially, the sunshine of disclosure can shine through in a lot of ways. Our exchange is proof that there are many effective means of communicating or of broadcasting (in the broader sense of distributing widely) information.

Disclosure is not cost free (there are some issues with associational rights as Justice Thomas notes in his dissent in the McConnell case). Nonetheless, in my opinion it is constitutional and effective.

Ronald said...

They would like preferred status; the Court wisely has avoided that except through the backdoor with campaign
cases. The more sources of information we foster, the more diversity of viewpoint we will see, and the more likely that a damaging disclosure will get publicized.