The Constitutional Question

By Michelman, Frank I. | Harvard Journal of Law & Public Policy, Fall 2000 | Go to article overview

The Constitutional Question

Michelman, Frank I., Harvard Journal of Law & Public Policy

There are reform proposals on the table. They involve legal restrictions on how, and how much, money is spent in elections by candidates, parties, PACs, and others, very possibly accompanied by proposals for public financing of election campaigns or of some aspects of them, maybe involving the use of vouchers.

Some argue, formidably, that these reforms would work badly. Some even maintain that the best alternative is total deregulation of campaign spending. Let us agree there are real questions about the operational merits and demerits of various proposed reforms. Those questions are not the ones I address. The constitutional question is different. It is about how, under the American constitutional system, the matter of reform should be decided. It is about whether the Constitution, seen in its best light, authorizes tight judicial supervision of reform choices. Is the Constitution best read to invite judicial imposition of a hard-and-fast rule against expenditure caps?(1) Is it best read to invite close judicial second-guessing of whether a contribution ceiling is too strict,(2) or of whether a candidate's acceptance of a spending limit in exchange for public funding ought to be classed as voluntary, given the specific terms of choice under challenge?(3)

Don't get me wrong. The Constitution's allocations of decisionmaking authority over campaign-spending reform can't be honored without some attention to the effects of proposed reforms. Any political-spending reform restricts someone's participation or influence in politics. Any that does so lacking a reasonably credible justification, rooted in widely accepted principles of American democratic government, should be disallowed by the judiciary, as unconstitutional.

Reform proposals do, however, often claim justifications of exactly the sort I mentioned. Supporters say they provide the conditions of fair access to political participation or influence for many people who presently lack it. Obviously, a spending limit can't have an effect of that kind unless it restricts some people's political activities, but supporters justify such effects by arguing that they go along with fulfillment of widely accepted norms of equality and fairness in a democracy. Fulfilling such norms looks like a pretty weighty interest. Of course, a claim that a given reform does fulfill them, measurably better than an electioneering free market would do, can be mistaken. What's more, it can be deceptive. I do take it, though, that there is some room for reform proposals--probably involving substantial public funding supported or protected by limits on spending out of private resources--whose overall democratic merits are intelligently and sincerely maintainable.

I have to assume that much for the sake of keeping my assigned topic open for discussion. If there really is nothing honest and intelligent to say or propose--on the merits, operationally--against any an electioneering free market, then that has to be the end of the constitutional discussion. The constitutional discussion is interesting only if you grant there is sometimes room for sincere and competent debate over the public-value serving merits of a reform proposal.

Assuming, then, that there is room for such debate, the question before us is one about the forums in which and methods by which such debates ought, in the American constitutional system, to be resolved. It is whether the Constitution is working at its best when, for example, the judiciary totally bars the door to expenditure limits as in Buckley, or closely second-guesses contribution limits as dissenting Justices would have done in the recent Shrink Missouri PAC case.

The answer would be easy if the Constitution just hands-down decided the matter. If the First Amendment's prohibition against laws abridging the freedom of speech incontestably covers laws limiting individual, group, and aggregate spending in support of a political candidacy, then courts must enforce the prohibition as written. …

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