George Will on John McCain, Campaign Finance Regulation, and Free Speech

George Will criticizes John McCain's support of campaign finance regulation as inconsistent with the First Amendment right to free speech:

Presidents swear to "protect and defend the Constitution." The Constitution says: "Congress shall make no law . . . abridging the freedom of speech." On April 28, on Don Imus's radio program, discussing the charge that the McCain-Feingold law abridges freedom of speech by regulating the quantity, content and timing of political speech, John McCain did not really reject the charge:

"I work in Washington and I know that money corrupts. And I and a lot of other people were trying to stop that corruption. Obviously, from what we've been seeing lately, we didn't complete the job. But I would rather have a clean government than one where quote First Amendment rights are being respected that has become corrupt. If I had my choice, I'd rather have the clean government.

Will's criticism of McCain's view is dead on. 

According to advocates of campaign finance regulation, the First Amendment protects the right to speech but not the right to spend money promoting that speech.  This distinction is meaningless, however.  By attempting to suppress "monied interests," campaign finance is targetting the points of view associated with these interests.  That is taking sides on particular ideas, and that is exactly what the First Amendment is supposed to prevent.

The response that campaign finance regulation is necessary to stop corruption is equally unconvincing.   Never mind that the First Amendment makes no mention of a "corruption" exception.  More fundamentally, spending money to influence legislation or support politicians is not corruption unless a law prohibits these activities.  But that means campaign finance regulation generates corruption rather than suppressing it.

The fact is that advocates of campaign finance regulation do not like the views associated with "monied interests."  These advocates are entitled to their opinions.  But restricting other peoples' ability to promote their own views is the road totalitarianism.

Comments

[KRM]

What about this blind donation booth idea? I suppose it's not really a violation of free speech because the person making the donation can promise that he/she paid a certain amount, but there's no way to confirm that for sure.
http://faculty-gsb.stanford.edu/bulow/articles/The%20donation%20booth.pdf

[Chris]

When you disallow money being assoicated with an idea or policy preference the only people that are capable of making their views known are the very powerful (typcially wealthy). If two people would like to speak to Senator X, one of them is Joe Blow from Podunk, TX and the other is the CEO from Exxon who do you think is going to get a meeting.

Now let's switch up the scenario. There are no limits on campaign contributions a citizens group representing 10,000 people from Podunk, TX and a CEO from Exxon both donate $1 million. Who is Mr Senator more likely to meet with? I would propose that it would be the leader of the citizens group since they have a) supported the Senator and b) represent more votes.

Chris, What actually happens in scenario #2 is the CEO finds a loophole in the campaign finance law, makes his donation and influences Mr Senator.

We can't keep blaming faultily campaign finance law. Influence is impossible to stop. Or even slow down. Campaign finance plain will not work. Ever.

[Mike Huben]

There are two gaping holes in the "logic" of these arguments.

First, there is the unstated assumption that ALL speech should be protected by a right to free speech. The founders of the US had no such intentions: they wanted to carve out exceptions for important purposes such as slander, libel, trademarks, copyright, official secrets, etc. Corruption is such a purpose.

Second, free speech cannot act as an excuse for a crime. If a godfather orders a murder, why that's speech: but it's also a crime, and thus not protected. If somebody contributes a large amount of money to a candidate, that's bribery, and not simply speech.

That said, I think that a better system would be to have the government match the funding of opposed candidates. If I raise $40,000 more than my opponent, then my opponent should be given roughly $40,000 more by the government to oppose me. There are kinks to work out in such a system, but it eliminates much of the bribery aspect and promotes even contests.

Huben,
So you think the gov. should have given the LP $350 million in '04?

[Mike Huben]

Nope. Don't need to fund cranks.

[Jason]

Mike, you still havent answered my questions....

[joe rice]

Huben: you are a friggin' idiot. if some guy (candidate x) runs for office and the people in his district love him so much that they donate $200,000 to his campaign and then some low-life secular-humanist biologist who fancies himself an economist (candidate mh) peels himself off his couch, dusts the cheetos off his shirt and says, "my life is worthless, i spend all my time making inane comments on other blogs because no one will come to my site, but now the government is giving welfare to politicians so i think ill challenge candidate x so that i can get my electricity turned on and stop living at the library," the government is supposed to give candidate mh $200,000 just for the hell of it. that has got to be one of the stupidest things ive ever read. thank you.

[James]

Actually, Jason, I believe Huben did answer your question. He supports matching funds, but only for candidates running on platforms that he's comfortable with.

Even his proposal strikes me as approaching campaign finance from the wrong (price control and subsidy) angle. The reason people are willing to give so much to political candidates is because those candidates, if elected, will have a tremendous amount of power to involve themselves in all aspects of people's lives. If this power were reduced, the demand for political influence would decrease and so would the price.

If I were as anti-libertarian as Huben, I'd still not support his proposal. It would be too costly and create the wrong incentives. It would be much cheaper to use a tax instead of a subsidy; The candidate who gets the least can keep all of his funds. All others can also keep only this much and any other donations that they have raised would go to general revenues.

Mike:

The founders didn't want to "carve" anything out of the first amendment. Those things you mentioned were already a part of common law and so were assumed not to be protected.

"Corruption" is of course not protected speech. If you speak to ask for a bribe, that is not protected. Political speech, however, is protected. Just because it may be taken advantage by some unfortunate individuals does not justify it's regulation or prohibition. Corruption is already illegal, that is enough. Political speech in the form of contributions does not necessarily lead to corruption, it is a tool sometimes used. Just as hammers are sometimes used to kill but having a hammer does not necessarily lead to killing. Outlawing hammers in the name of murder-prevention is as idiotic as publicly-funded campaigns in the name of corruption-prevention.

[Mike Huben]

First, the scheme I proposed is already working in Connecticut. States are the laboratories of democracy, you know.

Thanks for the defense, James. And as you can read in the article above, the purpose is to empower the population, not cash-rich special interests.

Elimination of corruption by campaign finance is an enormous bargain: campaign costs are tiny compared to state budgets and the economic effects of state action (or inaction.)

Joe, I recommend that you look up psychological projection.

Whoever you are, your hammer analogy is not easy to reconcile with our subject. I don't buy it.

However, I agree with you that the founders expected some common law exceptions to TOTALLY free speech to be retained. The question really is what they meant by free speech: it patently wasn't "any speech, any time, any purpose." It may have been limited to political free speech, and it may have been ever further limited as indicated by the Alien and Sedition Acts (which thankfully have been overturned.)

Monied special interests giving money is not political speech. It is corrupt: a form of bribery. The founders did not have to face enormous corporations competing with the populace for the attentions of legislators: those corporations did not exist at that time. As anti-corruption measures have grown more effective, corporate donors have hidden behind the fig leaf of "political donations" and various kinds of luxury treatment instead of outright cash bribes.

Giving campaign contributions is certainly not a prima facie bribe. If it is done only to get an official act in return, then it is a bribe. Bribery can be made illegal and prevented without infringing on speech simply by having full disclosure of who gives what to whom.

Giving money is a form of political speech the same way that volunteering or putting up signs is a form of political speech, one is doing an otherwise legal activity to help support a chosen candidate. All of these forms of speech should be protected.

Campaign finance, in addition to being a violation of the first amendment, is a thinly-veiled attempt at incumbent-protection. Incumbents have all the advantages of the office are difficult to beat if the challengers are allowed no monetary advantage. Campaign finance is also designed to favor the wealthy since the bogus bribery argument cannot used against someone spending his own money. But then I'm sure we'll resort to policing campaign expenditures as well, in the name of fair-play, and drip-drip-drip, piece-by-piece, more forms of political speech are outlawed.

When people throw in stuff about the big, bad "monied interests" to scare you, just remember that everyone is a monied interest.

And finally, another insight from Mr. Will:

High-stakes government that directly dispenses trillions of dollars and influences, with tax benefits and regulations, the flow of trillions more, elicits a high-stakes influence industry. Thoughtful people who recoil from many repugnant aspects of contemporary politics should squarely face the fact that big government begets bad politics.

[Alan Brown]

Campaign reform is not the answer.

Legislative reform is.

We need proportional representation so that the makeup of the legislature reflects society. That way you can just vote for the party that represents your perspective.

Campaigning is a lot less of an issue with PR. You can pick a party that is morely closing aligned with your views and don't have to select between two different liars who don't represent your views and don't do what they say they'll do anyway.

For those who think it'll be open season on the treasury, we can have a second house that just represents the taxpayers in proportion to how much tax they pay. This second house may or may not have a say on taxes, but would on how they are spent. Or we get some constraints added to the constitution as part of the deal.

Anyway, the chances are nil that such reforms will happen in the US. Its pretty hard to change the constitution. But I think its one thing we need to do.