Against the Scribes: Campaign Finance Reform Revisited
McGinnis, John O., Harvard Journal of Law & Public Policy
It is a pleasure to be back at my alma mater to talk about free speech and, in particular, to address those who would like to restrict campaign expenditures to assure a more equal representation of voices in our political discourse. The desire to restrict others' speech to create a better world with more influence from good people like oneself is an all-too-human impulse. I myself remember harboring the same sentiment in this very room and in other rooms on this campus when, as both an undergraduate and a law student, I wondered why Harvard could not be required to have a fairer proportion of views more like my own rather than force me to endure an almost unvarying pall of left-liberal orthodoxy. Nevertheless, here I argue that the understandable temptation -- particularly seductive for intellectuals -- to use the government to enforce a preferred pattern of speech would both violate the Constitution and damage the political health and economic prosperity of our republic.
I devote most of my discussion to defending the principal holding of Buckley v. Valeo(1) that limitations on campaign expenditures are subject to strict and generally fatal scrutiny under the First Amendment. I provide three levels of argument in favor of this proposition. First, I show that its holding is rooted in the neutral principles that must underlie any coherent conception of the First Amendment. Permitting restrictions on campaign expenditures by politicians and issue groups would in fact so distort neutrality that it would lead to a baleful dominance of our political life by those whose business is to influence politics and culture -- the axis made up by the press, the academy, and Hollywood. Second, I demonstrate that the holding is supported by the original understanding of the First Amendment. Third, I argue that it is supported by modern First Amendment doctrine. I then respond to some criticism of my position at the conference. Finally, I will advance some tentative thoughts about Buckley's second important holding -- its validation of quite severe limits on how much money individuals may contribute to others' campaigns.
I. THE POLITICAL ECONOMY OF FIRST AMENDMENT NEUTRALITY
A. Campaign Expenditure Limitations and Neutral Principles
Under the provision of Federal Election Campaign Act of 1971 that was struck down by Buckley, a citizen who spent $1,000 to place an independent advertisement opposing the election of a President could have been prosecuted as a felon and put in jail for five years.(2) We can dramatically illustrate the neutral principles at stake in such attempts to restrict campaign expenditures by interested individuals and associations by appealing to a simple hypothetical. Let us assume that Congress, in order to prevent undue influence of any members of the press on elections, declares that no media outlet can spend more than $1,000 or even $100,000 to cover any electoral campaign. This hypothetical statute precisely mirrors the restrictions involved in campaign expenditure limitations. Like a restriction on campaign expenditures, it regulates only money and the money it regulates is not any less related to speech than the money used for campaign expenditures. Moreover, like many other restrictions on campaign expenditures, this statute would also not explicitly discriminate on the basis of viewpoint. Yet almost universal denunciation would greet this statute -- none more loud than from those in the press who support restrictions on campaign expenditures.
To permit Congress to restrict campaign expenditures and yet not to restrict press expenditures privileges some individuals because they happen to be in the media. It therefore would distort beyond recognition the neutral principles that must guide the First Amendment. To put it in a more personal way, why should I have to be in the media to use my resources to make my voice heard? Why should my First Amendment rights approximate the absolute when I own (or am employed by) a portion of the media and can thereby deliver my message continuously, but disappear when I want to rent the media to deliver my message? …