- The Washington Times - Sunday, July 15, 2007

ANALYSIS/OPINION:

The Supreme Court’s Federal Election Commission v. Wisconsin Right to Life ruling repealing part of the McCain-Feingold campaign-finance law is a landmark court decision that strengthens our Constitutional Right of Free Speech. Unfortunately, this court decision did not repeal the contribution restrictions under previous Supreme Court rulings that limit the supply and flow of money to political parties and the campaigns of nonwealthy candidates.

As a consequence, this court decision is portrayed negatively by many news outlets because it only restores Free Speech to special interest groups. The irony here is that in their effort to reduce the influence of money in politics, the reforms have unwittingly fostered creation of two distinctly different political groups — those with unrestricted free speech and no contribution restrictions — (i.e. special interest, deep pockets and the press) and political parties and nonwealthy candidates who must abide by all the governmental limits and rules that Congress cares to impose.

The reason “cash is king” in politics is because it takes money to effectively compete in an election. In our representative democracy, it is the people — through casting their vote in competitive elections — that exercise their responsibility as the ultimate authority or sovereign. Because everyone has had a fair chance to compete, the losing side generally accepts the final outcome.

However, such acceptance only occurs when the losing side has been able to generate enough money to have its voice heard. If over time the losing side is repeatedly forced to remain speechless, its confidence in the political process will eventually diminish. Sooner or later such disillusionment can become a breeding ground for violent protest.

Having enough money available allows for the continual, aboveboard and unrestrained exchange of thoughts and ideas among candidates, parties and factions during the election process. This leads to long-term stability and accord within our democracy. It is the reason competitive elections are so important to the health of our democracy. It is also why full and timely financial disclosure is a better alternative than arbitrary contribution limits. Full disclosure does not undermine the foundation of our unique form of democracy.

Our great folly today is the stubborn and ill-conceived belief that government can control the flow of money into elections without also substantially affecting the elections’ outcomes. Allowing government interference to dictate winners and losers is not only undemocratic, it tends to make incumbents more impervious to defeat. This in turn makes consensus building more difficult because as elected officials become more entrenched, they tend to be less willing to make concessions.

Arbitrary limits on the availability and flow of money in politics weakens rather than strengthens our election process because it limits freedom of speech. Many reformers sincerely believe public financing is the ultimate solution. In truth, it is only the illusion of a solution because it will make special interest groups, deep pockets and the press even more powerful and our election process even more stagnant.

The First Amendment says that “Congress shall make no law… abridging freedom of speech.” It is logically impossible to honor this amendment and also declare campaign finance restrictions constitutional. Previous Supreme Courts have chosen to ignore this reality. The Roberts Court did not.

Rodney A. Smith is author of “Money, Power & Elections: How Campaign Finance Reform Subverts American Democracy.” (LSU Press, 2006), (https://www.moneypowerandelections.com/).

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