On Wednesday, the Supreme Court gave its stamp of approval to the most significant limits on political speech in decades. The 5-4 decision, penned by Sandra Day O’Connor and John Paul Stevens, declared, “Just as troubling to a functioning democracy as classic quid-quo-pro corruption is the danger that officeholders will decide issues not on the merits or desires of their constituencies, but according to the wishes of those who have made large financial contributions valued by the officeholder.” The justices’ solution was to approve the McCain-Feingold limits on campaign donations. In his dissent, Justice Antonin Scalia stated that the majority ruling made it “a sad day for the freedom of speech.” We agree.
A general problem with the new limits is that they gloss over the fact that politicians need money to get elected and that soliciting and receiving such funds are intrinsic to our political process. Modern campaigns cost a lot of money, especially to pay for television and radio advertising. Whether to back a particular candidate or to advocate a cause or issue, large donations cover these sizable expenses. The cash doesn’t all come from big single donors. Interest groups have been a major source of campaign financing. These organizations are a very populist form of politics as they pool the limited resources of individuals to wield influence as a bloc. Gagging these groups limits the speech of their millions of members and donors, who on their own have much less impact.
The new law is the result of serious demagoging of the role of money in politics. In an amicus brief submitted for the case, the libertarian Cato Institute argued that the very idea of representative government depends on the reality and value of government officials acting based on their association with donors because helping get a candidate elected is a proper form of influence. As the Cato brief states, “Campaign contributions are just another form of expressive association, can be used only to support expressive activities, not for personal gain, and thus any influence they may generate is not corrupt.” The ruling and the march for campaign-financing limits in general are based on an utopian dream that some system can be concocted to make money meaningless to politics. That world does not and will never exist.
The Supreme Court ruling exposed one weakness in the Bush administration’s governing tactics. After Congress passed the restrictive bills, there was pressure on President Bush to veto the legislation. Advisers argued that the he would risk giving the Democrats a campaign issue if he killed a law that is rightly or wrongly seen to be grappling with dirty money in politics. Plus, it was suggested, the Supreme Court was sure to knock down the campaign-finance limits on free-speech grounds anyway. In the future, particularly during a potential second term, Mr. Bush’s interests would be better served by using his veto power on bad legislation.
By Andrew P. Napolitano
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