- The Washington Times - Tuesday, July 3, 2001

The United States Supreme Court enlisted as a spirited troubadour for campaign finance reform last week in Federal Election Commission vs. Colorado Republican Federal Campaign Committee (June 25, 2001). Justice David Souter, speaking for a fragile 5-4 majority, held that the First Amendment's protection of core political speech was undisturbed by congressional ceilings on party contributions to candidates.

Possession is nine-tenths of trespass law. But intellectual fads are nine-tenths of First Amendment jurisprudence, as the FEC opinion verifies.

It is de rigueur to sermonize that money in politics corrupts to favor the rich. Purging private money from campaigns, like Jesus driving money-changers from the Temple, is thus feverishly touted; otherwise, it is said, our democratic dispensation will forfeit legitimacy amongst the populace.

Under that preachy banner, the Federal Election Campaign Act of 1974 limits political party contributions in Senate campaigns to the greater of $20,000 or 2 cents multiplied by the state voting age population. It is difficult to imagine a greater assault on political advocacy celebrated by the First Amendment

Money is to free speech what lungs are to respiration. The two cannot be separated, even though money is property like the New York Times, CBS, or CNN. And only the obtuse would dispute the unconstitutionality of prohibiting newspapers or broadcasters from employing their properties to report or editorialize in favor of a candidate in coordination with her campaign strategy. And that constitutional maxim does not bend, even if the monetary value of the candidate advocacy would be stratospheric.

In sum, the glib catechism that since money is property the First Amendment is indifferent to pinching its use in campaigns is unpersuasive. Money is both property and speech when devoted to candidate campaigns; thus, the First Amendment should shield political party contributions from limits unless the government proves a serious evil from full freedom, which is the presumptive rule.

Justice Souter turned this understanding on its head in FEC. The Colorado Republican Party argued that the $20,000 contribution ceiling impaired its First Amendment right to associate to advance a political agenda by undermining party clout and loyalties.

Justice Souter scoffed that the party had lived with the ceiling for three decades without disappearing like the Cheshire cat. But the retort is as sophomoric as thinking that athletes are indifferent as to whether they are grand Olympians or puny novices. Candidate and incumbent independence from political parties has widened dramatically since the FECA indicated by the growing breaking of party ranks. The separation cannot be quantified, but quantification is not invariably the test of truth. In any event, political speech or association are not required to justify themselves under the First Amendment; they are presumptively good unless proved mischievous.

Justice Souter fretted that political parties receive donations from nefariously motivated donors who hope that their party generosity will make the candidates it supports beholden to "special interests" and selfish desires. But so what? Politics is not confined to the altruistic.

Sainthood is not required for voting, speaking or giving. And any quid pro quo for a contribution no matter how cleverly disguised is a crime.

Contrary to time-honored First Amendment doctrine, the government in FEC escaped with a bantam-weight burden of justification for clipping political speech. Justice Souter indulged the speculation that unlimited party contributions would foster "evasions" of the limits on individual giving to particular candidates.

According to trial evidence, some donors make munificent party contributions with a tacit understanding or expectation of favorable treatment by party-sponsored candidates if they are ultimately elected. But if rewarding contributors is thought deplorable, Congress should prohibit government action predominately motivated by a particular contribution. It should not wield a blunderbuss under the First Amendment when a scalpel will do.

Virtually all political speech or activity is potentially corrupting, but a potential is ordinarily insufficient to condemn. For instance, an exceptional orator cannot be banned from speaking at the request of a candidate for fear that an electrifying speech might mask a corrupt bargain.

Similarly, indiscriminate prohibitions on private contributions to charities favored by a candidate or an officeholder or donations to presidential libraries would flunk constitutional scrutiny if justified solely by the opportunity for corruption.

Justice Souter insisted that bribery or sister campaign finance violations are difficult to prove; thus, sweeping prophylactic measures are warranted to forestall a second edition of the Gilded Age and the robber barons. The theory might carry weight if the federal code cosseted the rich and famous, a credible earmark of undue influence or political taint. But the middle and lower classes make off like bandits in the code.

Redistribution of income from the upper class in their favor is extravagant.

Emblematic is the Internal Revenue Code. The top 1 percent of taxpayers who earn approximately 18 percent of national income pay approximately 30 percent of income taxes; the bottom 50 percent of earners shoulder about 5 percent of the income tax burden. A comparable skewing obtains for the hundreds of billions spent on Social Security, Medicare, Medicaid, food stamps, housing, welfare, and education.

Such a pronounced and pervasive government tilt may be morally or otherwise justified. But it discredits the blather that campaign finance reform is necessary to prevent government capture by an aristocracy of wealth.

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