- The Washington Times - Tuesday, August 15, 2000

Nothing so rapidly transforms liberals from free-speech true believers into Doubting Thomases than campaign finance reform. When political parades, picketing or flag burnings are at issue, liberals characteristically preach as revealed truth Justice Robert Jackson's soaring rhetoric in West Virginia Board of Education vs. Barnette (1943): "The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One's right to life, liberty and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no election."

When political speech by contributions and expenditures are in question, in contrast, free-speech liberals regularly turn illiberal faster than Dr. Jekyll morphed into Mr. Hyde. Both exemplary and dismaying on that score was Thursday's opinion by the U.S. District Court for the District of Vermont in Landell vs. Sorrell, which both partially sustained and partially rejected the constitutionality of Vermont's expenditure and contribution limits in state races.

A centerpiece of Vermont's reform crusade prohibited spending above $300,000 in gubernatorial races. Dramatically lower ceilings down to a paltry $2,000 applied for less exalted offices. The discrepancies seemed obtuse. The urgency of political education and advertising to overcome voter ignorance and indifference is at its zenith when inconsequential offices are at stake and candidate names are generally as unknown as the master of the wardrobe under British King Charles I. The disparate spending ceilings, however, were left unchallenged, unlike the ceilings themselves.

District Judge William K. Sessions III received them with palpable enthusiasm, despite the decision of the U.S. Supreme Court in Buckley vs. Valeo (1976) holding expenditure caps in federal elections a clear violation of freedom of speech. Judge Session's grudging bow to Buckley precedent and invalidation of Vermont's expenditure limits came only after illiberal and glib sermonizing in favor of campaign-finance reform.

Vermont's law unsurprisingly commanded widespread bipartisan support. Contribution and expenditure limits generally handicap challengers who typically confront more widely known and visible incumbents. Thus, the bipartisanship should have aroused suspicion that self-promotion rather than a lofty public interest was the statute's driving force, just as bipartisan political gerrymanders are cunningly crafted to safeguard the seats of both incumbent Republicans and Democrats. Judge Sessions, nevertheless, counted bipartisanship as proof of high-minded legislative concern over the evils of tycoons in politics and shut his eyes to the blatant conflict of interest.

The reform-minded judge next pointed to the politically correct belief that money corrupts the political process as justification for expenditure and contribution limits. But popular majorities in the United States from the Alien and Sedition Act onward have always searched for scapegoats to explain disappointed political hopes or imperfections in the human condition. A few years ago, political careerism was the villain, and term limits the elixir. At present, the majority's bete noir is spiraling political expenditures, even when free from bribery, gratuities or other corruptions that have been criminal for ages. Arresting political speech is today's popular panacea.

Judge Sessions thus should have scrutinized Vermont's proffered justifications for its campaign finance reform with deep skepticism. But he did the opposite and gave credence to the untenable. Opinion polls, newspaper editorials and elected officials, he noted, saluted contribution and spending ceilings and blamed big money for defeats of environmental regulation of the slate industry and an anti-smoking bill, a veto of a pharmaceutical law, and a corruption of the legislative process generally. But the corroborating evidence was trifles light as air. State Sen. Jeb Spaulding, for instance, blathered that "[t]he evidence is all around us that money is a negative influence on the impartial ordering of priorities and passage or failure of bills around here." But no charges of bribery, gratuities or companion crimes against political integrity were forthcoming. Neither was there evidence the arguments that defeated legislative proposals were insincerely concocted to disguise illegal quid pro quos. And in politics, a "negative" influence is nothing more than an opponent, idea or law that a politician dislikes. In sum, the evidence of legislative corruption that Judge Sessions found persuasive boiled down to the undisturbing disappointment of some and elation of others in representing diverse constituencies and interests.

The judge errantly insisted that Vermont's expenditure ceilings were unalarming and innocuous because sufficient to conduct "effective" campaigns. But candidates and their supporters care not only about victory, but about the margin of victory. A massive mandate from an aroused and thoroughly informed electorate does vastly more to promote a candidate's agenda than does a narrow win. President Lyndon Johnson, for instance, would have been thwarted in orchestrating enactment of the landmark 1964 Civil Rights Act if his win over Republican challenger Barry Goldwater had been razor thin rather than overwhelming. Expenditure limits thus invariably threaten to suppress politically significant speech.

Finally, Judge Sessions praised spending curbs to free officeholders from the bother of exciting public support manifested through campaign contributions. But fund-raising is what typically rivets officeholders to constituent interests and makes them more rather than less accountable for their performance. Why does a hallmark of democratic representation deserve condemnation?

Earlier this year, four justices of the U.S. Supreme Court in Nixon vs. Shrink Missouri Government PAC voiced inclinations to uphold the constitutionality of expenditure limits. The tide of popular fallacy and mythology is cresting in their favor.



Bruce Fein is a lawyer and free-lance writer specializing in legal issues.

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