Money Talks
Clarence Thomas
walks.
(1,048 words; posted
Friday, July 12; to be composted Friday, July 19)
By Michael
Kinsley
Twenty years ago the
Supreme Court made a mess of campaign-finance reform. A Watergate-inspired law
of 1974 had placed dollar limits on campaign contributions and campaign
spending for federal offices. In Buckley vs. Valeo (1976), the court
ruled that spending limits violate the First Amendment: The government cannot
restrict your right to spend money communicating the message of your choice.
The court upheld contribution limits on the reasoning that contributing money
to someone else is not an act of speech. (Spending limits for presidential
campaigns were allowed as a quid pro quo for accepting federal funds.)
Having
contribution limits but no spending limits creates all sorts of weird
anomalies, above all the shadowy and often farcical distinction between
"independent" and "coordinated" expenditure. If your spending is coordinated in
any way with the campaign you're supporting, it's held to be an in-kind
contribution, subject to limits. Unless, that is, you yourself are the
candidate, in which case you may spend and coordinate to your heart's content.
It all makes perfect sense--in theory.
The court wandered back into this thicket last month, and
wandered out again. Colorado Republican Federal Campaign Committee vs.
Federal Election Commission held that the government cannot restrict
spending by the state Republican Party on behalf of a Republican Senate
candidate. But the opinions were all over the lot. Some Justices said that the
spending was independent and therefore OK. Some said it was coordinated, but OK
anyway in the case of a political party. Some said it was coordinated and
therefore not OK. And Clarence Thomas said the whole game was absurd
because contributions deserve First Amendment protection just like
expenditure.
The
official goo-goo position for 20 years has been that Buckley vs. Valeo
is wrong for the opposite reason: Spending limits should be OK too. The
shorthand argument is that "money isn't speech." Spending limits don't prevent
anyone from expressing an opinion. At most they regulate the volume of speech,
not the content. Efforts to level the playing field of politics and reduce
political corruption, by reducing the role of money, actually serve First
Amendment interests. The New York Times has published innumerable
editorial riffs on these themes.
But how would the New York Times feel about a
"reform" that did the same thing in the field of newspapers? That is, a law
designed to level the playing field and promote diversity in an increasingly
concentrated industry vital to the political debate. The law would limit the
amount anyone could spend in a year for the purpose of publishing a newspaper.
The law would place no limits on what could be said in a newspaper--only
on what could be spent on a newspaper. And suppose that the limit were
somewhat less than the Times now spends (less, even, than its in-house
downsizers dream of spending). The Times , I think, would find serious
First Amendment difficulties with such a law.
As this
example shows, money indeed is speech. Restrictions on people's right to spend
money expressing themselves is a very real--and unconstitutional--restriction
on their right of free speech. The government certainly may address the problem
of unequal voices in the political debate. It may do so through devices that
increase the quantity or volume of speech, such as financial subsidies or free
TV time. To some extent the government needn't be impartial: It can promote the
messages it prefers ("drugs are bad") over messages it doesn't ("drugs are
fun"). What it should not be allowed to do is to level the debate by reducing
the volume or quantity of someone's speech. And that means money.
So is Clarence Thomas right? Are contribution limits no
different? Thomas' opinion is part of an increasingly popular line among
conservatives that the best campaign reform would be to repeal the old rules,
not to pass new ones. Senate Republicans last month killed a reform bill that
would have cracked down on PACs, "soft money," and other current arrangements
some people don't care for. A major Republican talking point was that
contribution limits are an offense against freedom of speech.
It's
fun to see Justice Thomas and Republican senators calling for anti-majoritarian
judicial activism. What they are saying is that even though contribution limits
are so popular that voters are clamoring for more, and even though these limits
are embodied in a law duly enacted by a majority in Congress and signed by the
president, "unelected judges"--I believe that's the usual epithet--should tell
the people they can't have their way. George Will has written column after
column sermonizing about First Amendment excesses, lecturing sternly about the
difference between "speech" and "action," and ridiculing the idea that (for
example) flag-burning sends a political message and therefore qualifies for
First Amendment protection. Yet there he is in Newsweek last week
huffing that campaign-finance reform "has done more damage to constitutional
values than Watergate," and endorsing Thomas' notion that political
contributions "are acts of political expression, as well as exercises in
freedom of association."
That's the argument, and it's pretty weak. Unlike, say,
burning the flag, the act of making a political contribution is not primarily
intended to send a message. In fact the contribution would often be unknown if
it weren't for federal reporting regulations. As the court reasoned in 1976,
the message implicit in a campaign contribution--"I support Candidate X"--has
little to do with the size of the contribution. (A bigger contribution may or
may not mean, "I really, really support Candidate X.") "Freedom of
association" is an even bigger stretch--one that Justice Thomas would laugh out
of court if some liberal proposed it. Contribution limits don't stop you from
associating publicly or privately with a candidate or cause, working for the
campaign, or even signifying your association by donating money. They may
prevent you from associating with the senator at an exclusive cocktail party
for lobbyists and other large givers--but that's the whole idea.
A muddy distinction, like
the one between "independent" and "coordinated" campaign spending, usually
signifies that the underlying principle needs work. In this case the
principle--giving First Amendment protection to campaign spending but not to
contributions--is widely mocked from both directions. As it happens, though,
the Supreme Court got it just about right 20 years ago.
Michael Kinsley is
editor of SLATE.
