The Constitution and Campaign Reform - the Supreme Court Appears Determined to Preserve Freedom of Expression, Even in the Areas of Campaign Contributions

Article excerpt

Clearly the authors of the Constitution and the Bill of Rights could not have foreseen the contours of political activity in America today, for the political environment of their time was very different from ours. Theirs was a narrowly confined political system with small governments far removed from the welfare state mentality and with a suffrage restricted primarily to white male property owners.

Although political party organization began to emerge rather quickly after the government was up and running, there were no effectively organized political parties in 1789, nor did the authors of the Constitution anticipate them. Moreover, it is fairly widely conceded that for the first years of our republic, the exploitation of the political system for purely selfish gain was circumscribed by the low expectations of government and a generally held belief that service in public office was an obligation to one's fellow Americans.

Despite the indisputable differences in political practice from that day to this, constitutional principles have spanned the two eras. First and foremost among these is the Founding Fathers' belief that government can be corrupting. In Federalist 10, James Madison warned, "Enlightened statesmen will not always be at the helm." Therefore, its institutions must be fashioned to protect individual liberty rather than foster increased power. This connection was made explicit by the observation in Federalist 51 that "if angels were to govern men, neither external or internal controls in government would be necessary."

Not intended to be efficient

The U.S. government could by no stretch of the imagination be described as efficient, and it was never intended to be. Closely in harmony with the Founding Fathers' creation of institutionally limited government was the adoption of the First Amendment, which was passed by the first Congress and quickly ratified by the states as part of the Bill of Rights. Among other limitations, this amendment forbade Congress from abridging the freedom of speech and press and the right to peaceably assemble, all exceptionally important to free expression in general and to unfettered political activity specifically.

It is certainly true that Americans' freedom of expression has on occasion been violated by government. The Alien and Sedition Acts, for example, were passed early in our history, but they were short lived and roundly hated. Wartime crises have also provoked trammeling of these rights. As well, the First Amendment's free-expression protections were not applied in the states until the early twentieth century.

Nonetheless, Americans have always treasured their right to express themselves freely, and the courts have fairly consistently supported them, with the current Supreme Court an especially zealous champion of this tradition. It has, for example, protected one's right to burn the American flag as a form of political protest, invalidated attempts to outlaw "hate speech," and rebuffed Congress' attempts to regulate expression on the Internet.

Thus, it should be no surprise that the justices have been skeptical of congressional efforts to regulate political expression in elections. As the Court declared in Buckley v. Valeo (1976): "In the free society ordained by our Constitution it is not the government, but the people--individually as citizens and candidates and collectively as associations and political committees--who must retain control over the quantity and range of debate on public issues in a political campaign." In this respect a majority of the justices have agreed with Bradley Smith, associate professor of law at Capitol University Law School, who argues that "limits on monetary expenditures limit speech. Though controversial in some esoteric circles, for most people this is such common sense that we tend not to even think of it."

At the outset, we should be clear that the Supreme Court has been willing to allow some congressional regulation of campaign finance. …