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SMITH: Supreme Court aided free speech, but should have gone further
Question of the Day
The Supreme Courts ruling in Citizens United v. the Federal Election Commission restored free speech to corporations, unions and special interest groups by allowing them to spend unlimited amounts of money via independent expenditures advocating the election or defeat of clearly identified state and federal candidates.
This is an important victory for conservatives because it re-establishes an essential principle that is the foundation of our Constitution. The ability for everyone including corporations, unions and special interest groups to freely participate in the election process was an absolute imperative to the Founding Fathers.
In Federalist 10, James Madison states that special interest groups will always exist and that we need to get use to them. He argues that “Liberty is to faction, what air is to fire. Human life is sustained by air. So is fire.” The elimination of air to eliminate the threat of fire would also mean the end of human life. Likewise, freedom is essential to both special interests and to vigorous political debate. Withdraw freedom from special interest and you destroy political life itself. This is exactly what campaign finance reform has done. And why, Chief Justice John G. Roberts Jr.’s decision is such an important victory for conservatives.
The bad news for conservatives is that the decision did not repeal the contribution limits on individual citizens and political parties. So, all the court has done is strengthen the political clout of “deep pockets.”
In our democracy, it is the people — through casting votes in elections — who exercise their responsibility as the ultimate authority. Because everyone has had a fair chance to compete, the losing side generally accepts the outcome. Such acceptance only occurs when the losing side has been able to raise enough money to have its voice heard. If, over time, the losing side is repeatedly forced to remain “speechless” for lack of cash, then its confidence in our political process eventually diminishes. This is why “cash is king” in politics and why any form of contribution limits weakens our democracy.
Regardless of whether they are helpful or hurtful, candidate campaigns have no control or say over money spent independently affecting their campaign. So one of the things the recent Supreme Court decision has done is set the stage for escalating the rancor and confusion that is certain to breed further disrespect for the law, the Constitution and our government.
In its Buckley vs. Valeo decision in 1976, the high court knew it was logically impossible to honor the First Amendment while declaring the contribution limitations passed by Congress constitutional.
The Supreme Court ignored the irony in 1976 and in 2003 when it declared the Bipartisan Campaign Reform Act (BCRA) constitutional. Among other things BCRA further weakened political parties by eliminating soft-money contributions to national party committees.
Karl Marx said that when history repeats itself the original tragedy returns as a farce. The Buckley v. Valeo decision and the BCRA ruling demonstrate this very point. Rather than purging politics of big money, these two court decisions have gotten democracy out of politics. The harsh reality is that the repressive contribution restrictions on candidates and party committees established by the court decisions remain in force. The decision by the current high court only eliminates the restrictions on spending by corporations, unions and special interest groups for certain types of political communications. What it did not change is the repressive restrictions on the flow of money to candidate campaigns and political parties.
As a consequence, many candidate campaigns, particularly challenger campaigns, will continue to be severely underfunded. However, the laws and court decisions supporting contribution limits have imposed a monetary straightjacket on candidates. When candidates lack the money to buy space and time in the media, they are politically paralyzed. Unable to speak, they and their invisible campaigns are forced to rely on journalist and independent expenditure groups to convey their messages while they remain “speechless.” The only way a candidate, political party or anyone else can effectively exercise their right to free speech is by spending money.
America has prospered for nearly two centuries under a political system set up by the founders that did not include arbitrary contribution limits on what citizens could give to candidates running for public office. We should be inclined to think they got it mostly right and follow the lead of the recent court decision and immediately remove all the remaining contribution restrictions on candidate campaigns and political parties.
Most people consistently fail to make the connection between campaign finance reform and the loss of free speech. What the American people need to understand is that if in politics money buys speech, how can government, in a free society, abridge its collection and, thereby its disbursement, without, at the same time, destroying the rights of citizens to govern themselves?
An open and aboveboard election process that does not restrict the flow of money to candidates and political parties but does require complete, immediate and full disclosure of all contributions via the Internet would give all citizens the means to truly exercise their First Amendment right to free speech.
• Rodney A. Smith is a certified public accountant, a former Republican National Committee finance director, political consultant and as a fundraiser has raised more than $1 billion for candidates and political committees.
By Andrew P. Napolitano
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