The cost of regulated speech

Iowa hasn’t spoken yet, but already the white-bread state and its early-bird caucuses are being criticized for being undemocratic. “Iowans Insist Caucus Role Is Deserved” was the headline on a dispatch from Des Moines in Wednesday’s Washington Times, but the story itself explained their defensiveness: “With a population of 3 million, Iowa ranks 30th among the states. The population is 94.9 percent white, 2.3 percent black, 1.4 percent Asian, and 3.7 percent claim Hispanic origin.” As for the caucuses, the article quotes Ohio Gov. Ted Strickland, a Hillary Clinton supporter, as calling them “hugely undemocratic” because they require voters to show up for hours at a time, effectively disenfranchising the sick and elderly and people who have to work.

Strictly speaking, the rap against Iowa isn’t its demographics or the quaint caucus system but the fact the timing of the caucuses endows them with undue significance, warping what should be a more national exercise in intra-party democracy. But the solution often proposed for such an unfair advantage — a schedule in which demographically diverse states would hold their primaries on one of a handful of staggered dates — is only superficially about empowering voters in other states. It’s really an attempt to manage the disproportionate momentum produced by Iowa and New Hampshire. That “Big Mo,” as the first George Bush described it, is about a lot more than the ability of voters across the country to participate in choosing their party presidential nominees. It’s really an attempt to stop a stampede by fundraisers and the news media.

Therein lies the dirty secret about American elections: Their outcome depends on much more than how individual voters choose to exercise their franchise. At the voting booth or the caucus, it’s one-person, one-vote. As Republican nominee Mike Huckabee put it in a speech an Elks Lodge in Iowa: “Your vote counts as much as a person who can write a check for a $100,000. Nobody gets to buy an extra vote with his money.”

But the egalitarian ideal invoked by Huckabee is undermined not just by barriers to participation (such as advance registration or disqualification of felons) but also by the fact that the voter is only one actor in the electoral drama. Even then his lines are often scripted, or at least suggested, by someone else. Maybe the prompter is a union or nonprofit group that broadcasts “issue ads” that turn the voter against a particular candidate; maybe it’s Oprah Winfrey, in whose reflected glory Barack Obama has been basking; maybe it’s the voter’s spouse or pastor. The someone else might even be the author of a newspaper editorial endorsing one candidate over another. Voters aren’t sequestered, like jurors in a sensational murder trial, to protect them from outside influences.

Some campaign “reformers” see this as an evil. An editorial in the New York Times on Wednesday railed against so-called 527s and other independent groups that have been spending “piles on television ads and get-out-the-vote efforts to help or harm candidates in both parties.” The editorial concludes that “giving up on regulating money in elections would be giving up on the goal of fair elections.”

A “fair” election in this context means ones in which voters are shielded from the propaganda of special interest groups (but not, presumably, from the recommendations of the New York Times editorial board). I have previously described this as the “high doctrine” of campaign finance reform. It holds that the law should not just guard against bribery and corruption in the political process but should aim to “level the playing field” by reducing the advantages conferred on some candidates and citizens by the fact that they have more money than somebody else.

This view of campaign reform underlies a provision in the McCain-Feingold campaign finance law prohibiting unions and corporations from airing ads that refer to a candidate (even if they don’t advocate his election or defeat) within 60 days of a general election or 30 days of a primary. After upholding that provision on its face, the Supreme Court last year struck down its use against an anti-abortion group that wanted to broadcast ads pressuring both of Wisconsin’s senators — only one of whom was up for reelection — to allow a vote on President Bush’s judicial nominees. Chief Justice John Roberts’ opinion quoted a 1963 case in which the court said: “First Amendment freedoms need breathing space to survive.”

The 1st Amendment is a significant barrier to the sort of “fair” elections desired by the New York Times — elections in which special-interest groups (but not newspapers or Oprah!) are prevented from saying too much about candidates for public office lest their message change a voter’s mind. Huckabee was right to tell the Elks that “your vote counts as much as a person who can write a check for $100,000.” But their votes — and all of ours — will be influenced by messages that require the writing of checks, as well as the framing of arguments, to get into circulation. If that’s anti-democratic, so is the 1st Amendment.

Michael McGough is The Times’ senior editorial writer.

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