Free Speech is Not Corruption Posted by: Dale Franks
on Wednesday, August 09, 2006
David Keating is executive director of the Club for Growth, and Carl Pope is president of the Sierra Club. Not exactly the best of friends, politically, one might think. But politics, as it is said, makes strange bedfellows. So, in an op/ed they've written for The Hill, the newspaper of Congress, they are both getting quite snuggly under the covers in their opposition to the regulations on 527 groups that is making its way through congress.
Hill readers may not realize it, but if you and a few neighbors and friends decide to get together and buy a billboard and newspaper ad criticizing your local congressman’s vote on a recent bill, if this bill passes, your small group of community activists may just have become a 527. And those of you who spent more than $5,000 each on the ads might even be facing some prison time for your temerity in appealing to your fellow citizens — even if you were just trying to counter some ads run by Washington special interests who organize under other provisions in the tax code.
Elected officials backing this bill may think they are making a wise political move, but subverting the Constitution in an attempt to make political gains is inexcusable and will likely backfire. Lucky for the American people, a growing number of senators and representatives on both sides of the aisle recognize how dangerous this legislation is and reject the claims of those who say citizen groups can corrupt the system and damage the public trust.
Too bad that realization didn't come before passage of the BCRA—which is blatantly unconstitutional, no matter what a majority of the Supreme Court says.
Wait no more . . . I realize that you (and Dale, too, evidently) don’t much respect the opinion of the Supreme Court but I do. They get to decide what is and what is not consititutional; that’s the way a society founded on the rule of law works. This is what the Supreme Court said at the begining of it opinion in McConnnell v. SEC, 540 U.S. 93 (2003):
More than a century ago the "sober-minded Elihu Root" advocated legislation [**644] that would prohibit political contributions by corporations in order to prevent "’the great aggregations of wealth, from using their corporate funds, directly or indirectly,’" to elect legislators who would "’vote for their protection and the advancement of their interests as against those of the public.’" United States v. Automobile Workers, 352 U.S. 567, 571, 1 L. Ed. 2d 563, 77 S. Ct. 529 (1957) (quoting E. Root, Addresses on Government and Citizenship 143 (R. Bacon & J. Scott eds. 1916)). In Root’s opinion, such legislation would "’strik[e] at a constantly growing evil which has done more to shake the confidence of the plain people of small means of this country in our political institutions than any other practice which has ever obtained since the foundation of our Government.’" 352 U.S., at 571, 1 L. Ed. 2d 563, 77 S. Ct. 529. The Congress of the United States has repeatedly enacted legislation endorsing Root’s judgment.
BCRA is the most recent federal enactment designed "to purge national politics of what was conceived to be the pernicious influence of ’big money’ campaign contributions." Id., at 572, 1 L. Ed. 2d 563, 77 S. Ct. 529. As Justice Frankfurter explained in his opinion for the Court in Automobile Workers, the first such enactment responded to President Theodore Roosevelt’s call for legislation forbidding all contributions by corporations [***531] "’to any political committee or for any political purpose.’" Ibid. (quoting 40 Cong. Rec. 96 (1906)). In his annual message to Congress in December 1905, President Roosevelt stated that "’directors should not be permitted to use stockholders’ money’" for political purposes, and he recommended that "’a prohibition’" on corporate political contributions "’would be, as far as it went, an effective method of stopping the evils aimed at in corrupt practices acts.’" 352 U.S., at 572, 1 L. Ed. 2d 563, 77 S. Ct. 529. The resulting 1907 statute completely banned corporate contributions of "money . . . in connection with" any federal election. Tillman Act, ch 420, 34 Stat 864. Congress soon amended [*116] the statute to require the public disclosure of certain contributions and expenditures and to place "maximum limits on the amounts that congressional candidates could spend in seeking nomination and election." Automobile Workers, supra, at 575-576, 1 L. Ed. 2d 563, 77 S. Ct. 529.
In 1925 Congress extended the prohibition of "contributions" "to include ’anything of value,’ and made acceptance of a corporate contribution as well as the giving of such a contribution a crime." Federal Election Comm’n v. National Right to Work Comm., 459 U.S. 197, 209, 74 L. Ed. 2d 364, 103 S. Ct. 552 (1982) (citing Federal Corrupt Practices Act, 1925, §§ 301, 313, 43 Stat 1070, 1074). During the debates preceding that amendment, a leading Senator characterized "’the apparent hold on political parties which business interests and certain organizations seek and sometimes obtain by reason of liberal campaign contributions’" as "’one of the great political evils of the time.’" Automobile Workers, supra, at 576, 1 L. Ed. 2d 563, 77 S. Ct. 529 (quoting 65 Cong. Rec. 9507-9508 (1924)). We upheld the amended statute against a constitutional challenge, observing that HN1"[t]he power of Congress to protect the election of President and Vice President from corruption being clear, the choice of means to that end presents a question primarily addressed to the judgment of Congress." Burroughs v. United States, 290 U.S. 534, 547, 78 L. Ed. 484, 54 S. Ct. 287 (1934).
Congress’ historical concern with the "political potentialities of wealth" and their "untoward consequences for the democratic process," Automobile Workers, supra, at 577-578, 1 L. Ed. 2d 563, 77 S. Ct. 529, has long reached beyond corporate money. During and shortly after World War II, Congress reacted to the "enormous financial outlays" made by some unions in connection with [**645] national elections. 352 U.S., at 579, 1 L. Ed. 2d 563, 77 S. Ct. 529. Congress first restricted union contributions in the Hatch Act, 18 USC § 610 [18 USCS § 610], n2 and it later prohibited [***532] "union contributions in connection [*117] with federal elections . . . altogether." National Right to Work, supra, at 209, 74 L. Ed. 2d 364, 103 S. Ct. 552 (citing War Labor Disputes Act (Smith-Connally Anti-Strike Act), ch 144, § 9, 57 Stat 167). Congress subsequently extended that prohibition to cover unions’ election-related expenditures as well as contributions, and it broadened the coverage of federal campaigns to include both primary and general elections. Labor Management Relations Act, 1947 (Taft-Hartley Act), 61 Stat 136. See Automobile Workers, supra, at 578-584, 1 L. Ed. 2d 563, 77 S. Ct. 529. During the consideration of those measures, legislators repeatedly voiced their concerns regarding the pernicious influence of large campaign contributions. See 93 Cong. Rec. 3428, 3522 (1947); H. R. Rep. No. 245, 80th Cong., 1st Sess. (1947); S. Rep. No. 1, 80th Cong., 1st Sess., pt. 2 (1947); H. R. Rep. No. 2093, 78th Cong., 2d Sess. (1945). As we noted in a unanimous opinion recalling this history, HN2Congress’ "careful legislative adjustment of the federal election laws, in a ’cautious advance, step by step,’ to account for the particular legal and economic attributes of corporations and labor organizations warrants considerable deference." National Right to Work, 459 U.S., at 209, 74 L. Ed. 2d 364, 103 S. Ct. 552 (citations omitted).
n2 The Hatch Act also limited both the amount political committees could expend and the amount they could receive in contributions. Act of July 19, 1940, ch. 640, 54 Stat. 767. Senator Bankhead, in offering the amendment from the Senate floor, said:
"’We all know that money is the chief source of corruption. We all know that large contributions to political campaigns not only put the political party under obligation to the large contributors, who demand pay in the way of legislation, but we also know that large sums of money are used for the purpose of conducting expensive campaigns through the newspapers and over the radio; in the publication of all sorts of literature, true and untrue; and for the purpose of paying the expenses of campaigners sent out into the country to spread propaganda, both true and untrue.’" United States v. Automobile Workers, 352 U.S. 567, 577-578, 1 L. Ed. 2d 563, 77 S. Ct. 529 (1957) (quoting 86 Cong. Rec. 2720 (1940)).
In early 1972 Congress continued its steady improvement of the national election laws by enacting FECA, 86 Stat 3. As first enacted, that statute required disclosure of all contributions [*118] exceeding $100 and of expenditures by candidates and political committees that spent more than $1,000 per year. Buckley v. Valeo, 424 U.S. at 11-19. It also prohibited contributions made in the name of another person, id., at 19, and by Government contractors, id., at 10. The law ratified the earlier prohibition on the use of corporate and union general treasury funds for political contributions and expenditures, but it expressly permitted corporations and unions to establish and administer separate segregated funds (commonly known as political action committees, or PACs) for election-related contributions and expenditures. Id., at 12-13. n3 See Pipefitters v. United States, 407 U.S. 385, 409-410, 33 L. Ed. 2d 11, 92 S. Ct. 2247 (1972).
n3 HN3As a general rule, FECA permits corporations and unions to solicit contributions to their PACs from their shareholders or members, but not from outsiders. 2 USC §§ 441b(b)(4)(A), (C) [2 USCS §§ 441b(b)(4)(A), (C)]; see Federal Election Comm’n v. National Right to Work Comm., 459 U.S. 197, 198-199 and n 1, 74 L. Ed. 2d 364, 103 S. Ct. 552 (1982).
As the 1972 Presidential elections made clear, however, FECA’s passage did not deter unseemly fundraising and campaign practices. Evidence of those practices persuaded Congress to enact the [**646] Federal Election Campaign Act Amendments of 1974, 88 Stat 1263. Reviewing a constitutional challenge to the amendments, the Court of Appeals for the District of Columbia Circuit described them as "by far the most comprehensive . . . reform legislation [ever] passed by Congress concerning the election of the President, Vice-President and members of Congress." Buckley v. Valeo, 171 U.S. App. D.C. 172, 519 F.2d 821, 831 (1975) (en banc) (per curiam).
The 1974 amendments closed the loophole that had allowed candidates to use an unlimited number of political committees for fundraising purposes and thereby to circumvent the limits on individual committees’ receipts [***533] and disbursements. They also limited individual political contributions to any single candidate to $1,000 per election, with an overall annual limitation of $25,000 by any contributor; imposed ceilings on spending by candidates and political parties for national conventions; [*119] required reporting and public disclosure of contributions and expenditures exceeding certain limits; and established the Federal Election Commission (FEC) to administer and enforce the legislation. Id., at 831-834.
The Court of Appeals upheld the 1974 amendments almost in their entirety. n4 It concluded that the clear and compelling interest in preserving the integrity of the electoral process provided a sufficient basis for sustaining the substantive provisions of the Act. Id., at 841. The court’s opinion relied heavily on findings that large contributions facilitated access to public officials n5 and described methods of evading the contribution [*120] limits that had enabled contributors of massive sums to avoid disclosure. Id., at 837-841. n6
n4 The court held that one disclosure provision was unconstitutionally vague and overbroad. Buckley v. Valeo, 171 U.S. App. D.C. 172, 519 F.2d 821, 832 (CADC 1975) (en banc) (per curiam) (invalidating 2 USC § 437a (1970 ed., Supp. V) [2 USCS § 437a]). No appeal was taken from that holding. Buckley v. Valeo, 424 U.S. 1, 10, n. 7, 46 L. Ed. 2d 659, 96 S. Ct. 612 (1976) (per curiam).
n5 The Court of Appeals found:
"Large contributions are intended to, and do, gain access to the elected official after the campaign for consideration of the contributor’s particular concerns. Senator Mathias not only describes this but also the corollary, that the feeling that big contributors gain special treatment produces a reaction that the average American has no significant role in the political process." Buckley, 519 F.2d at 838 (footnotes omitted).
The court also noted:
"Congress found and the District Court confirmed that such contributions were often made for the purpose of furthering business or private interests by facilitating access to government officials or influencing governmental decisions, and that, conversely, elected officials have tended to afford special treatment to large contributors. See S. Rep. No. 93-689, 93d Cong., 2d Sess. 4-5; Findings I, PP 108, 110, 118, 170." Id., at 838, n. 32.
Citing further evidence of corruption, the court explained:
"The disclosures of illegal corporate contributions in 1972 included the testimony of executives that they were motivated by the perception that this was necessary as a ’calling card, something that would get us in the door and make our point of view heard,’ Hearings before the Senate Select Comm. on Presidential Campaign Activities, 93d Cong., 1st Sess. 5442 (1973) (Ashland Oil Co.—Orin Atkins, Chairman) or ’in response to pressure for fear of a competitive disadvantage that might result,’ id. at 5495, 5514 (American Airlines—George Spater, former chairman); see Findings I, P 105. The record before Congress was replete with specific examples of improper attempts to obtain governmental favor in return for large campaign contributions. See Findings I, PP 159-64." Id., at 839, n. 37.
n6 The court cited the intricate scheme of the American Milk Producers, Inc., as an example of the lengths to which contributors went to avoid their duty to disclose:
"Since the milk producers, on legal advice, worked on a $2500 limit per committee, they evolved a procedure, after consultation in November 1970 with Nixon fund raisers, to break down [their $2 million donation] into numerous smaller contributions to hundreds of committees in various states which could then hold the money for the President’s reelection campaign, so as to permit the producers to meet independent reporting requirements without disclosure." Id., at 839, n. 36.
The milk producers contributed large sums to the Nixon campaign "in order to gain a meeting with White House officials on price supports." Ibid.
[**647] The Court of Appeals upheld the provisions establishing contribution and expenditure limitations on the theory that they should be viewed as [***534] regulations of conduct rather than speech. Id., at 840-841 (citing United States v. O’Brien, 391 U.S. 367, 376-377, 20 L. Ed. 2d 672, 88 S. Ct. 1673 (1968)). This Court, however, concluded that each set of limitations raised serious—though different—concerns under the First Amendment. Buckley v. Valeo, 424 U.S. 1, 14-23, 46 L. Ed. 2d 659, 96 S. Ct. 612 (1976) (per curiam). We treated the limitations on candidate and individual expenditures as direct restraints on speech, but we observed that the contribution limitations, in contrast, imposed only "a marginal restriction upon the contributor’s ability to engage in free communication." Id., at 20-21, 46 L. Ed. 2d 659, 96 S. Ct. 612. Considering the "deeply disturbing examples" of corruption related to candidate contributions discussed in the Court of Appeals’ opinion, we determined that limiting contributions served an interest in protecting "the integrity of our system of representative democracy." Id., at 26-27, 46 L. Ed. 2d 659, 96 S. Ct. 612. In the end, the Act’s primary purpose—"to limit the actuality and appearance of corruption resulting from large individual financial contributions"—provided [*121] "a constitutionally sufficient justification for the $1,000 contribution limitation." Id., at 26, 46 L. Ed. 2d 659, 96 S. Ct. 612.
We prefaced our analysis of the $1,000 limitation on expenditures by observing that it broadly encompassed every expenditure "’relative to a clearly identified candidate.’" Id., at 39, 46 L. Ed. 2d 659, 96 S. Ct. 612 (quoting 18 USC § 608(e)(1) (1970 ed., Supp. IV) [18 USCS § 608(e)(1)]). To avoid vagueness concerns we construed that phrase to apply only to "communications that in express terms advocate the election or defeat of a clearly identified candidate for federal office." 424 U.S., at 42-44, 46 L. Ed. 2d 659, 96 S. Ct. 612. We concluded, however, that as so narrowed, the provision would not provide effective protection against the dangers of quid pro quo arrangements, because persons and groups could eschew expenditures that expressly advocated the election or defeat of a clearly identified candidate while remaining "free to spend as much as they want to promote the candidate and his views." Id., at 45, 46 L. Ed. 2d 659, 96 S. Ct. 612. We also rejected the argument that the expenditure limits were necessary to prevent attempts to circumvent the Act’s contribution limits, because FECA already treated expenditures controlled by or coordinated with the candidate as contributions, and we were not persuaded that independent expenditures posed the same risk of real or apparent corruption as coordinated expenditures. Id., at 46-47, 46 L. Ed. 2d 659, 96 S. Ct. 612. We therefore held that Congress’ interest in preventing real or apparent corruption was inadequate to justify the heavy burdens on the freedoms of expression and association that the expenditure limits imposed.
We upheld all of the disclosure and reporting requirements in the Act that were challenged on appeal to this Court after finding that they vindicated three important interests: providing the electorate with relevant information about the candidates and their supporters; deterring actual corruption and discouraging the use of money for improper purposes; and facilitating [**648] enforcement of the prohibitions in the Act. Id., at 66-68, 46 L. Ed. 2d 659, 96 S. Ct. 612. In order to avoid an overbreadth [***535] problem, however, we placed the same narrowing construction on the [*122] term "expenditure" in the disclosure context that we had adopted in the context of the expenditure limitations. Thus, we construed the reporting requirement for persons making expenditures of more than $100 in a year "to reach only funds used for communications that expressly advocate the election or defeat of a clearly identified candidate." Id., at 80, 46 L. Ed. 2d 659, 96 S. Ct. 612 (footnote omitted).
Our opinion in Buckley addressed issues that primarily related to contributions and expenditures by individuals, since none of the parties challenged the prohibition on contributions by corporations and labor unions. We noted, however, that the statute authorized the use of corporate and union resources to form and administer segregated funds that could be used for political purposes. Id., at 28-29, n. 31, 46 L. Ed. 2d 659, 96 S. Ct. 612; see also n 3, supra.
Three important developments in the years after our decision in Buckley persuaded Congress that further legislation was necessary to regulate the role that corporations, unions, and wealthy contributors play in the electoral process. As a preface to our discussion of the specific provisions of BCRA, we comment briefly on the increased importance of "soft money," the proliferation of "issue ads," and the disturbing findings of a Senate investigation into campaign practices related to the 1996 federal elections.
Now, Tom, I have never said that I personally agree with every provision of McCain-Feingold. But I do agree — as does most of the country, the majority of our elected officials, and the Supreme Court — that money is a corrupting force in American politics that should be regulated. And the Constitution that you claim to revere specifically grants Congress the power to regulate Federal elections. That is what Congress has done.
If you are still reading I have a couple of questions for you:
1. Do you believe that money is a corrupting force in American politics?
2. Do you hold all provisions of the Constitution in such high — absolutist, I would say — esteem, or is it only the First Amendment?
3. Do you think there should be any regulations of political money — in receipts, contributions, or expenditures?
That the Supreme court gets to decide is true. However, that doesn’t make them right. Was Dred Scott decided correctly? I don’t think so and I certainly get to go ahead and campaign and speak my mind about any similar decision without government restriction. Oh, I forgot, I can’t! I have to put up with all kinds of restrictions on my speech because the Supreme court says so. How convenient for the powers that be.
As for money being corrupting, I would say the legislation fails on such consequentialist grounds as well. It increases the chance for corruption, and makes the corruption more indirect as well. Due to its media exemption it cartelizes political speech and means that political messages will, and are, being recast as media. That is why the FEC wanted to go after blogs. The NRA starts its own radio station. Billionaires and corporations repackage political speech as media. Of course, outside of the internet only the wealthy and powerful can afford to do that. Thank god for the internet.
This is one where I can’t see your argument as flying constitutionally (no matter what the Supreme Court say) practically, or that it even accomplishes a worthy goal.
Now, Tom, I have never said that I personally agree with every provision of McCain-Feingold. But I do agree — as does most of the country, the majority of our elected officials, and the Supreme Court — that money is a corrupting force in American politics that should be regulated.
Any evidence that campaign finance laws reduce corruption? Even the supporters like McCain harp on the "perception" of corruption, not corruption itself.
Campaign finance has done nothing to reduce corruption, but it does protect incumbants. Hence, it isn’t surprising that "the majority of our elected officials" support it.
Several points then I have to run, but I’ll gladly return to this issue another time:
1. I am in favor of full disclosure as a possible solution to the problem of money in politics. That, in fact, has long been my preferred course, precisely to alleviate the Constitutional tension raised by the valid First Amendment concerns you have raised. In case I haven’t said so: Yes, I agree there are First Amendment implications in McCain- Feingold and all the earlier campaign finance reform bills that preceded it.
2. This leads to the second point: The Supremacy of the Supreme Court in interpreting the Constitution. No one is suggesting that the Supreme Court is infallible. But in a country based on the rule of law someonemust be charged with interpreting the Constitution. Otherwise, we would have anarchy with each individual deciding how the Constitution should be interpreted and applied. In our system the Supreme Court decides what the Constitution means. If someone personally believes that the Supreme Court has decided incorrectly then that person may disobey the Court, but he does so in violation of the law. In a nation founded upon the rule of law it could not be otherwise.
3. As to the effectiveness of regulatory campaign finance laws, Lance, I’m not an expert and can’t give you an informed opinion. My guess is that the money is so desperate to find the politicians, and the politicans are so eager to be found, that it is like squeezing a ballon: The money just moves around like a moving target. I know that "avoiding" (in contrast to "evading") such restrictions in something of a cottage legal industry, which is probably why campaign finance regulation appears to be a neverending struggle.
4. Tom, you mention "bribes" as the only legitimate reason for restriction on political money. You define the "quid" but not the "quo." If you re-read the Supreme Court excerpt above, you will see that it is primarily the return for the money — the "quo" — that proves most elusive, and is most pernicious. Very few politicians are as dumb as Rep. Jefferson, but that would appear to be the extent of the regulatory reach you are willing to concede.
5. Tom you write:
All provisions in the Constitution are equally the highest law of the land. Hence, Congress may not adddress corruption by restricting speech or moneys funding the promulgation of speech.
The First Amendment does not prohibit regulating "moneys funding the promulgation of speech." That is simply not what it says. You can wish it were otherwise, you can conflate speech with the "moneys funding the promulgation of speech" if you like, but the Constitution does not do so.
P.S., Don, the "perception of corruption" is a real, not an imaginary problem because it corrodes faith in the democratic system.
I agree with David, and I support McCain Feingold on consequentialist grounds. We constantly complain about beholden candidates, but we never do anything about it.
The money will "always" (under all systems implemented so far, anyway) flow in, but where it flows to is not irrelevant, nor is squeezing the balloon. It’s a great thing that the money is flowing to semi-autonomous actors instead of political parties. It **reduces** corruption and quid pro quos that can’t be proved.
Any quid pro quo that tries to be set up now has to be a three-way between the autonomous group, the donor, and the politician. Those are a lot more vulnerable to discovery and thus are detterred. Best of all, the third-party group is **autonomous** and therefore less likely to participate in open favor-trading.
It’s a great thing to have money flowing to ideological groups instead of politicians. Ideological groups compete with each other on even footing and are not themselves the ones in power. It means battles will be fought over ideas, instead of favors for competing industries. It means less of politicians pretending to support good ideas and then watering them down to death.
It will mean increased voter participation.
It is a step foward for the system.
Money does not equal free speech. We all have a voice with which to express ourselves. We do not all have money to pay someone else to do the same.
There’s no way that McCain Feingold would have interfered with the printing of Common Sense.
Of course not Glassy, they are a few hundred years apart. Common Sense was also printed on a 18th century printing press, and the
McCain-Feingold does claim it would be ok for "independent actors" to have to document their independent expenditures as campaign contributions, and to prohibit them from distributing common sense or Common Sense within, if I recall, 60 days of an election.
"To its credit, the FEC tried to avoid this headache in 2002 by exempting the Internet from campaign-finance rules. This proved far too sensible for the sponsors of the law, who sued the commission for allowing "loopholes" and got a federal judge to strike down the exemption. The FEC must now decide just how it intends to monitor and penalize all those attempting to corrupt the U.S. political system via modem."
Italicized emphasis is mine. This is why John McCain must never be President.
Now, you could say that since no election was involved, Common Sense wasn’t an electioneering communication. You could also dispute that if it were to be done today, that it would still be a pamphlet and not a blog, hence not subject to the BCRA anyway.
I’ll never asccuse you of intellectual honesty.
Money does equal free speech, and unquestionab;y so if you spend your own yourself, as with a politically motivated blog. The only form of campaign finance reform that can be constitutional is to require transparency of candidates’ finances, which will be as full and complete a remedy for undue influence campaign financing as the voters want it to be.
Actually, Tom, I’d compromise on the 60 day rule, which is mostly incumbency protection. As for documentation - that’s your solution anyway, so what’s the problem?
If it’s a constitutional issue at stake, then amend the sucker. Full disclosure isn’t good enough. In our two-party system, that just means that both politicians gouge equally at the trough. A duopoly is not enough decentralization. Or, for something a free-market capitalist ought to appreciate, not enough competition.
As for documentation - that’s your solution anyway, so what’s the problem?
The cosntitution gives the federal government the power to regulate elections and already places arbitrary requirements on candidates. It places a prohibition on government retrictions on the participation of individuals in political discourse.
The proximate cost of documentation must fall on the candidate, never the non-candidate.
And no, I will not support amending the constitution to permit Congress to abridge the freedom of the press.