You Can’t Put Dollar Limits on Free Speech

In San Francisco’s November 1999 mayoral election, a group of Mayor Willie Brown supporters calling themselves San Franciscans for Sensible Government was able to make independent expenditures supporting the reelection of Brown after a federal court barred the city from enforcing provisions of its campaign finance ordinance.

The ordinance infringed upon the group’s 1st Amendment rights of freedom of speech and association, according to the court. Over the last 10 years, several Orange County jurisdictions have enacted similar ordinances. The cities of Anaheim, Huntington Beach, Irvine, Laguna Beach, Laguna Niguel and Orange, as well as the county, impose limits on the amount of money that may be contributed to independent expenditure committees that exercise their right to participate in electoral politics.

The Lincoln Club of Orange County challenged Irvine’s restrictions in federal court, contending that the city’s ordinance, like the similar San Francisco ordinance, unconstitutionally infringed the group’s 1st Amendment rights. In August, the court upheld the Irvine ordinance, which means that the Lincoln Club is prohibited from supporting its preferred candidates in the upcoming election merely because its membership dues exceed the contribution limit.

Willie Brown is a liberal Democrat, while the Lincoln Club of Orange County is generally known for supporting conservative causes and candidates. The two laws may not have been enacted with partisan motives, of course, and the two federal judges undoubtedly did not take partisan politics into account when rendering their respective decisions.

But the very fact that the law can mean different things for different ideological groups should give pause to everyone, liberal and conservative alike. Such a law undermines a necessary precondition of free elections, and with it a necessary precondition of free government.

The United States has had experience with this kind of partisan restriction on free speech before. During the first great challenge to our new Constitution, the Federalist Party of John Adams and his supporters in the Congress enacted the Sedition Act, which essentially criminalized the speech of Adams’ political opponents, backers of Thomas Jefferson. James Madison condemned the Sedition Act, stating that the right of electing the members of the government, the essence of a free and responsible government, depends on the knowledge of the comparative merits and demerits of the candidates for public trust, and consequently on the equal freedom of examining and discussing those merits.

Jefferson eventually won the presidency in 1800, and the Sedition Act, which constitutional scholars today almost uniformly believe to have been unconstitutional, was relegated to the dustbin of history.

It is time we viewed the current spate of campaign finance “reforms” with as much skepticism as constitutional scholars view the Sedition Act. However pure the reformers’ motives might be, restrictions on core political speech violate the 1st Amendment and inevitably end up being used to partisan advantage.

“Campaigns cost too much” has been a leading motivation for campaign finance reform, yet the decision about how much is too much ends up being made by those currently in power. It is folly to think that incumbents will have the same view about how much campaign speech is appropriate as their opponents, who need to expend more to overcome the advantages of incumbency and get their message to the voters.

What really bothers the reformers is that groups making campaign contributions and expenditures actually might influence the election. But isn’t that the whole reason we have elections? The Supreme Court has noted that “debate on the qualifications of candidates is integral to the operation of the system of government established by our Constitution.”

An election campaign is a means of disseminating ideas as well as attaining political office, and in this day, disseminating ideas takes money.

We would not tolerate government telling a soap company how much it should spend advertising its products, and absent actual quid pro quo corruption, we should find it even more intolerable for government to tell its citizens how much speech is sufficient to convey their views about candidates and issues, especially during an election, when the 1st Amendment has its fullest and must urgent application.

As the Supreme Court recognized in its landmark campaign finance decision in Buckley vs. Valeo nearly 25 years ago, the concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others is foreign to the 1st Amendment.

Thomas Jefferson wrote in the Declaration of Independence that the only legitimate governments are those based on the consent of the governed.

For more than 200 years, Americans have given their consent through free and open elections, in which debate on candidates and issues has been robust, uninhibited, and constitutionally protected. Campaign finance restrictions undermine free elections, and therefore the very legitimacy of government itself. If we are to continue to be free, we must be free to voice our views in the robust and uninhibited way that truly free elections demand.