- The Washington Times - Monday, October 3, 2005

The United States Supreme Court under the stewardship of Chief Justice John G. Roberts, Jr. will soon decide whether political speech will wither and die from the mad assaults of campaign finance reformers. The latter characteristically awaken from slumber each night terrified by the thought that sometime, somewhere, a candidate may be raising or spending a penny to persuade voters.

In Vermont, the reformers orchestrated ceilings on candidate expenditures for state office in the 1997 Vermont Campaign Finance Reform Act (Act 64). The United States Court of Appeals for the Second Circuit denied that Vermont’s expenditure caps violated the First Amendment in Landell v. Sorrell (2004). Last week, the Supreme Court agreed to review that ruling. Chief Justice William H. Rehnquist, was generally undisturbed by government suppression of political speech, for example, voting to uphold a ban on independent corporate expenditures to support or oppose candidates in Austin v. Michigan Chamber of Commerce (1990). Chief Justice Roberts, in contrast, holds a less cramped conception of free speech, a worrisome omen for defenders of Landell.

During the last decade, campaign finance orthodoxies without a crumb of support have addled the nation: that too much is expended to inform voters; that public cynicism is fueled by substantial contributions or expenditures; that officeholders ignore the public interest in favor of special interests; that laws are skewed to benefit the rich and famous; and, that campaign finance reform is necessary to cure America’s corrupted democracy by driving money from politics like Jesus and the moneychangers.

These bromides gave birth to Act 64, including its candidate expenditure ceilings: $300,000 for governor; $100,000 for lieutenant governor; $45,000 for other statewide offices; $4,000 for state senator; and, $2,000 for state representative. The Vermont General Assembly expressed religious-like convictions masquerading as findings to justify the massive encroachment on free speech. It was said, for example, that “[e]lection campaigns for statewide and state legislative offices are becoming too expensive. As a result many Vermonters are financially unable to seek election to public office and candidates for statewide offices are spending inordinate amounts of time raising campaign funds.” It was further pontificated that “obust debate of issues, candidate interaction with the electorate, and public involvement and confidence in the electoral process have decreased as campaign expenditures have increased.”

But no election campaign expense is superfluous or excessive. Each dollar devoted to informing and persuading voters is praiseworthy. Even if victory has become certain, continued expenditures are valuable. The margin of success will be pivotal to a candidate’s policy agenda and future ambitions. Moreover, effectuating political change requires altering conventional wisdom. Unlimited candidate expenditures are productive because each additional dollar aims to influence public thinking. By any enlightened yardstick, election campaign spending is too little, not too expensive.

While the General Assembly insinuated that candidates had dwindled because campaign costs had escalated, nothing was adduced to support the proposition. Ditto for the sister evils allegedly occasioned by climbing campaign expenditures: a lessening of robust debate; lesser candidate interactions with voters; and, plunging public confidence in the electoral process. Indeed, Vermont’s legislators made no attempt to define “robust debate,” much less calibrate its incidence before Act 64, leaving it, like obscenity, in Justice Potter Stewart’s twilight zone of, “I know it when I see it.”

The General Assembly’s complaint that “inordinate” time is devoted to fundraising misconceives representative government. Fundraising requires candidate education and alertness to the desires of the people. It makes for a responsive legislature and executive. Public financing, in contrast, inclines elected officeholders to act as Platonic guardians empowered to “uplift” the common citizen with paternalistic decrees and encyclicals.

The second circuit in Landell marked no improvement on persuasiveness from the fatuous authors of Act 64. The court declared that expenditure limits are justified to curb the influence of money in politics and to avoid squandering candidate time on fundraising (which presumably is better spent in fashioning utopian schemes to perfect human nature and eliminate sin). Writing for a 2-1 panel majority, Judge Chester J. Straub emphasized that Vermont’s citizens were suspicious of large corporations and wealthy donors. But free speech is toothless unless it means defending speech that is popularly reviled, e.g., flag burning. And bribery laws prohibit quid pro quo contributions or expenditures.

Judge Straub also applauded that the less money candidates raise, the lesser the number of donors who will command their attention. Representative government, however, presumes citizen or industry efforts to elect candidates sympathetic to their concerns. As James Madison elaborated in Federalist 10, the Founding Fathers intended to check special interests by multiplying their number and making them rivals. They keenly understood that all factions — no matter how lofty their rhetoric and pledges of altruism — advance a special interest.

Judge Straub further stumbled in overlooking that fundraising harmonizes with enlightened campaigning. The candidate must gather information, formulate policies and demonstrate a flair for debate and advocacy to convince would-be donors.

To paraphrase Justice Louis Brandeis in Olmstead v. United States (1928), campaign finance reformers are men and women of zeal, well-meaning but without understanding of free speech and the legitimate objectives of elections.

Bruce Fein is a constitutional lawyer and international consultant with Bruce Fein & Associates and The Lichfield Group.

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