Commentary Magazine


Court Must Scrap Finance “Reform” Limits

Yesterday the Supreme Court agreed to hear a case challenging federal campaign contribution limits. The current law has long been defended as a way to limit the allegedly corrupting effects of donations to candidates but like every other aspect of the drive to “reform” the campaign finance system these limits have not made the system cleaner or more accountable. To the contrary, the unintended consequences of the laws have made things far worse.

The Supreme Court made a good start in 2010 with its decision in the Citizens United case that rightly struck down elements of the McCain Feingold Campaign finance law that impinged on the free speech rights of contributors and groups. It is time for them to take another step toward dismantling these unwieldy and undemocratic laws by scrapping the contribution limits.

Campaign finance laws had their origins in the country’s reaction to Watergate and the apparent corruption of the free spending campaign to re-election Richard Nixon in 1972. But the movement Nixon’s regrettable excesses spawned was rooted in myths about money and politics that are still distorting our understanding of election finance.

The notion that money can be driven out of politics by either draconian limits or systems of public financing of candidates was always mistaken. Money is the mother’s milk of politics and no matter what laws are passed to supposedly purify various aspects of the system, it will find its way back in. If you severely limit or even ban contributions to candidates or the parties, that just sets up a situation in which other entities not directly associated with either will be set up to serve as a conduit for political speech. Ban one sort of independent expenditure and it will pop up somewhere else.

Liberals deplore this futile cycle of legislation and innovation but their belief that campaign contributions are inherently evil has driven them to expand rather than contract the reach of the laws they drafted. The Citizens United decision was necessary because by extending the reach of the restrictions to independent groups voicing opinions about candidates and issues, they had effectively prioritized their zeal to stamp out political speech over the First Amendment rights of citizens to express their views.

President Obama and the rest of the left screamed bloody murder about the Citizens United decision and claimed it would mean that corporations and other right-wing plotters would undermine democracy. But all it accomplished was to allow more political speech into the public square from both conservatives and liberals in the last election cycles. Not all of that speech was edifying but the change in the law allowed the voters to make up their own minds about which voices to trust. Even though Obama won in 2012 helped by a tsunami of liberal donations and independent expenditures, many on the left still fear the opening up of the floodgates of speech. But the issue here is not liberalism versus conservatism but the impulse to censor speech and the constitutional rights of Americans to speak.

But the need to expand upon the free speech victory in Citizens United is imperative. The contribution limits are supposed to make it harder for the wealthy to buy candidates but all they have really done is to push money out of the hands of those running for office and the political parties and into less accountable structures that were created for the purpose of evading them. That reduced the influence of the parties and has helped make our debates more extreme since candidates no longer can control most of the things said during campaigns.

The limits have also helped make Congress more of a millionaire’s club than it ever was since the laws could not stop the wealthy from spending on their own campaigns while complicating the efforts of those with modest incomes to raise enough cash to finance a competitive campaign. They have also set up a legal maze that is difficult for any candidate to navigate without breaking the law. But even the employment of an army of lawyers and accountants cannot always guarantee that capricious prosecutors will not try to criminalize technical violations of the limits.

The particular case that will be heard by the court only challenges aggregate limits to contributions rather than the individual ones for each candidate but the court ought to use this as an opening to start dismantling the entire system of limits.

Some of those who continue to defend campaign finance laws may be well intentioned but the effect of this body of legislation has harmed our democracy rather than helping it. Campaign contribution limits have mostly served as incumbency protection plans since they make challenges to sitting members of the House and Senate harder to finance. The intent of the law is not so much to level the playing field as it is to silence or to mute dissenting voices.

What our elections need is transparency not limits. Eliminating them will help make the system more accountable. What should be limited is the effort to protect incumbents and silence free speech.

The laws have also exposed the hypocrisy of the liberal mainstream media that decries the right of conservatives to use money to spread their ideas without the filter of the press without acknowledging that the Constitution exempts them from any such limits. Those who claim political ads are not political speech and thus exempt from government censorship are arguing in the face of logic and history.

After 40 years of reform, it’s time to acknowledge that the post-Watergate experiment with campaign finance legislation has been a disaster. It’s high time for the courts to continue the work of dismantling a broken system.

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