WASHINGTON — On its present course, the Supreme Court will ultimately overrule its 1976 decision in Buckley v. Valeo, the landmark case upholding campaign finance “reform” legislation. It can’t come too soon, because Buckley expressly ignored the First Amendment’s injunction that “Congress shall make no law abridging the freedom of speech.” Instead of free speech, we now have regulated speech that has ensnarled elections in a web of bizarre and opaque rules. Last week, in McCutcheon et al. v. Federal Election Commission, the court began edging away from Buckley by striking down one of its limits on free speech. The details are less important than the court’s direction.
Let’s be clear about the stakes.
Free speech is not speech you agree with, uttered by someone you admire. It’s speech that you find stupid, selfish, dangerous, uninformed or threatening, spoken and sponsored by someone you despise, fear or ridicule. Free speech is unpopular, contentious and sometimes ugly. It reflects a tolerance for differences. If everyone agreed on all things, we wouldn’t need it.
In American democracy, this free speech plays two vital roles. The first is well recognized. It is to shape public opinion and to influence elections that, in turn, determine the social climate and steer government. We cherish “the marketplace of ideas” because (we assume) it allows us, through give and take, to arrive at better ideas and to grope our way toward consensus on hard issues.
Free speech’s second function is less understood. It buttresses the political system’s legitimacy. It helps losers, in the struggle for public opinion and electoral success, to accept their fates. It helps keep them loyal to the system, even though it has disappointed them. They will accept the outcomes, because they believe they’ve had a fair opportunity to express and advance their views. There’s always the next election. Free speech underpins our larger concept of freedom.
Campaign finance “reform” degrades these core virtues in a quixotic effort to regulate politics. How did this happen? The answer is history. Watergate involved some especially sordid campaign solicitations by President Nixon’s henchmen. When exposed, these abuses inspired a backlash. We would purge politics of the evils of money. A “reform” ideology arose that subordinated the First Amendment to these lofty ambitions.
In this ideology, money is not speech. Speech is speech; contributions can be curbed to improve the political system without offending the First Amendment. Doing so is important because the alternative consigns government’s vast powers to the rich. Through disproportionate contributions, these moneyed interests win elections and impose their narrow agenda on the nation. This is the ultimate corruption of politics and government.
All this has had an appealing logic for the high-minded. There is only one problem: Each of these basic beliefs is false.
In politics, money is speech. Political speech is a public phenomenon. It aims to affect how people behave. It requires money to hire campaign staff, build a website, buy political spots and the like. Penniless politicians can’t easily communicate. Limiting my ability to contribute to candidates and parties restricts my First Amendment rights.
Still, that doesn’t mean that rich contributors can deliver elections. True, many of the wealthy have evaded the limits on candidate contributions by giving to “independent” groups. But the super-rich are not a monolithic bloc. There are super-rich conservatives and super-rich liberals. Business groups are often splintered. Nor does money guarantee victory. After a certain point, more money hits the law of diminishing returns. It can be and is misspent.
Whatever donors’ influence, government isn’t the preserve of the wealthy or business interests. Most federal spending goes to the poor and the middle class (70 percent in 2014 are “payments for individuals,” says the Office of Management and Budget, for Social Security, Medicare, Medicaid, food stamps and other programs), and most taxes are paid by the richest 10 percent (53 percent of all federal taxes in 2010, says the Congressional Budget Office). Most regulations target businesses. Sure, business groups and the rich sometimes secure favorable regulations, tax breaks and subsidies. But their triumphs are a small part of the picture.
Campaign finance “reform” aims to fix a problem that doesn’t really exist. It not only has failed but has actually made the situation worse. In Buckley v. Valeo, the court had to embrace some rationale for its acknowledged limits on First Amendment rights. The chosen reason was preventing “corruption or the appearance of corruption.” So advocates and the courts must constantly repeat that the present system is “corrupt.” Meanwhile, the law’s various limits force people who want to spend above the limits into increasingly complex evasions that look sleazy and defy the spirit of the law. But the fault lies with the law, not the people. The sooner it goes, the better.