United States lags the rest of the world
A free flow of information among citizens, groups, candidates for public office and political parties is vital for healthy democratic politics. The right to speak diminishes in significance without the financial resources needed to be heard. Ensuring that parties and candidates have adequate resources to compete effectively in elections is problematic given the inevitable tension between the ideal of political equality and the reality of economic inequality. Efforts to prevent concentrations of wealth from undermining political equality may conflict with bedrock freedoms of speech and association. Every democracy struggles to reconcile the need for political money with the problems it begets. Policy makers across the globe work with the same set of political finance tools public subsidies, limits on contributions, expenditure controls, disclosure, and regulation of campaign activity to grapple with these problems but they often arrive at very different solutions.
The United States is an outlier in this comparative world of campaign finance, in that its powerful 1st Amendment speech guarantee precludes tools routinely used in other democracies. For example, many countries prohibit paid campaign broadcast ads, limit expenditures by parties and candidates, and ban independent spending by outside groups. None are possible in this country. In fact, cries of speech suppression in America as a result of campaign finance regulation must utterly bewilder the citizens of the United Kingdom, France and scores of other democracies. By virtually every indicator available, political speech is alive and well after the enactment of McCain-Feingold, richly registering the values, beliefs and interests of a very large and heterogeneous society.
As applied by the courts to campaign finance regulation, the 1st Amendment has limited reformers primarily to disclosure, restrictions on the size and source of political contributions, and various forms of public subsidies, alone or as part of a voluntary system to entice candidates to accept caps on expenditures. But even these regulatory approaches have attracted constitutional challenges. For example, some critics believe disclosure may not be required of outside groups unless they engage in express advocacy. Campaign finance reform efforts since the passage of the Federal Election Campaign Act Amendments of 1974 (FECA) have been devoted almost entirely to maintaining or recovering the credibility and effectiveness of laws already on the books. It has been largely a defensive strategy, one with a mixed record of success and failure. Party soft money is gone, but so too in most respects is the presidential public financing system.
Approaches to reform least vulnerable to 1st Amendment challenges include diversifying the sources of political contributions and lowering the costs of campaigning. Small donor contributions have increased markedly in recent years, thanks to the Internet and initiatives taken by political parties and presidential candidates. Matching small donations with public funds could play a constructive role. More ambitious forms of public financing now being tested in cities and states around the country also offer a route around 1st Amendment obstacles to campaign finance regulation. The costs of campaigning may be reduced by free air time for candidates and parties as well as by successful private efforts to harness various inexpensive forms of digital communications. If we are lucky, the latter could one day substantially reduce the problems of money and politics.
Thomas E. Mann, the W. Averell Harriman chair and senior fellow in governance studies at the Brookings Institution, was an expert witness in the constitutional defense of the McCain-Feingold campaign finance law. He is coauthor of "The New Campaign Finance Sourcebook" and "The Broken Branch."
More solutions in search of a problem
Speaking of the glories of France and "scores of other democracies," where is the beef? Where, suddenly, is the vaunted "empirical evidence" that campaign speech restrictions lead to better government?
To me one of the interesting things about proponents of campaign finance regulation is that they don't even try to connect their proposed or enacted restrictions on political speech to better substantive government, whether measured by economic growth, unemployment, educational standards, health indicators, tax burden, public confidence in government, or anything else. In fact, by the one serious measurement effort I have seen, Governing magazine's effort to rate state government management, the best governed states are Virginia and Utah, states without limits on campaign contributions.
The 1st Amendment is not the bizarre, nearly inexplicable libertarian barrier to badly needed regulation that you seem to think it is. It represents a thoughtful, conscious "regulatory" decision that it is better to keep government out of this arena; that it is dangerous to give government the power to decide who has spoken too much or too little, or whose expressed concerns are a "sham" and whose concerns are "genuine."
Against this background, campaign finance restrictions are subject to challenge because they don't work and because there is little empirical evidence to support them. There is virtually no serious evidence that campaign contributions are a source of legislative corruption or "buy votes" of legislators. There is virtually no serious evidence that restrictions improve political competition. Indeed, the evidence tilts fairly strongly in the opposite direction.
Thus, the government will always have a difficult time in demonstrating a compelling need to suppress political speech and as a former FEC commissioner who had to make real decisions to fine real people real money for their political activities, I know that there is a real cost in political speech and freedom. These people would be "utterly bewildered" by your assertions that there is no speech suppression in the regulation of political campaigns.
Even disclosure is and should remain vulnerable to challenge, at least at the current low thresholds that force disclosure of minor contributions. Imagine the outcry, for example, if the president were to introduce the "Patriot II Act," including a provision to create a database of citizen political activity, and empowering the government to ask citizens with whom they have spoken about politics, in order to make sure that terrorist money isn't influencing our politics. Yet what is compelled disclosure of campaign contributions if not a database of personal information and political activity on U.S. citizens? And the first thing that happens in any investigation of alleged infractions which can be opened with virtually no evidence that the law has been violated is that the government begins to demand of citizens, "With whom did you speak about politics? What did you speak about? Did they agree?"
As I noted in Tuesday's post, the Supreme Court has been trying for some time to thread the needle between our traditions of political freedom and the desire of some to restrain those freedoms. These judicial efforts have not been very successful. Perhaps the court would do better to take a more originalist view after all, our nation's politics are more heavily regulated now than at any time in history, with little to show for it. We live in a time when truthful campaign speech gets less protection than topless dancing, internet porn, liquor ads or defamation. That seems to turn the 1st Amendment on its head. So let's hope there are more successful constitutional challenges.
Bradley Smith served as commissioner on the Federal Election Commission from 2000 to 2005, and as chairman of the commission in 2004. Currently professor of law at Capital University Law School in Columbus, Ohio, and chairman of the Center for Competitive Politics, he is the author of "Unfree Speech: The Folly of Campaign Finance Reform" (Princeton University Press 2001).