Campaign Finance Regulations Eviscerate Free Speech

I can’t let Nick’s post in favor of campaign finance reform pass without rebuttal. It can be easy to miss the connection between free speech and direct contributions to campaign efforts, so it’s understandable that many people don’t think of it as a free speech issue. That aside, the Bipartisan Campaign Reform Act (BCRA, aka McCain-Feingold) was one of the most blatantly unconstitutional pieces of legislation ever to pass the initial scrutiny of all three branches of government. State-based efforts to regulate campaign funding aren’t as wide-ranging, but are still almost universally terrible ideas.

Nick assures us that "The goal of campaign finance reform isn’t to destroy the 1st Amendment," which is undoubtedly true, but beside the point — destruction of the First Amendment is not the goal, it’s a side effect. Even though killing free speech isn’t the overt purpose of campaign finance reform, we can’t judge legislation solely on what it intends. The need to ferret out unintended consequences is one of the most important lessons of economics.

But really, the most obvious restrictions aren’t even unintended. The BCRA explicitly banned broadcast ads mentioning the name of a federal candidate from appearing within 60 days of a general election, or 30 days of a primary. This notwithstanding the fact that the importance of unrestricted political speech is a primary reason we have the First Amendment in the first place. And, as Jonathan Rauch pointed out, "Educating voters influences them, which is the whole point. ‘Electioneering’ is not distinguishable from other forms of political speech, even in principle."

The real driving force of the campaign finance reform movement has been politicians who want to be protected from competition. Make no mistake, campaign finance reform doesn’t level the playing field; it stacks the deck even further in favor of incumbents by restricting ordinary people from speaking out against those in power — those who already have plenty of exposure in the public eye on their own terms. Ryan Sager of the New York Sun has it exactly right: "Money has never been the issue. Cleansing our speech of impure thoughts about politicians is the real agenda."

Fans of campaign finance reform inevitably respond that "money isn’t speech," or that nobody is prevented from speaking, it’s just that groups are prevented from buying airtime. Semantic issues aside, I don’t know of anybody who ever claimed that money is speech. Money buys many things, and one of them is access to an audience. I’ve said it before, and I’ll say it again: Without the freedom to pursue such an audience, the freedom to speak is practically worthless. How much regulation will it take before advocates of campaign finance reform come to their senses and realize that the laws they favor promote real, actual government-mandated censorship? How about a law banning personal conversations that mention a political candidate within 60 days of an election? Maybe not: "You’re still free to speak. You can stand inside a locked closet and shout about whatever you want, to your heart’s content. Relax — the First Amendment is just fine."

For those who still think something needs to be done to "fix" political speech, there are solutions available that don’t happen to tear parts of the Constitution to shreds. Roger Pilon, director of the Cato Institute’s Center for Constitutional Studies, provides a guide for real reform (emphasis added):

[F]or some time now we have heard a chorus of calls in Congress and in the nation for campaign finance "reforms" that would almost certainly compromise political speech and hence the First Amendment. At a general level, I join that chorus, for there is something fundamentally wrong with the way political campaigns in America today are financed. But the reforms I would advocate would take us in a very different direction than that charted by most others in the chorus. Indeed, many of the problems that most reformers see in our present arrangements are the products of earlier reforms. Thus, if we are serious about addressing those problems we should look first to those earlier reforms. Far from needing further restrictions on political speech, we need fewer. Deregulation not only would be consistent with the Constitution but would solve the problems regulation brought into being. Here, as in so many other areas, the Founders had the better of it when they set us on a course of freedom rather than regulation. […]

There is a measure, however, that will withstand judicial scrutiny, the aptly-named "Doolittle bill," introduced in the 105th Congress as H.R. 965, the "Citizen Legislature and Political Freedom Act," sponsored by Rep. John Doolittle and co-sponsored by 70 other members of the House. In essence, that bill would remove the campaign contribution limits now in place and require instead that candidates and parties promptly report their financial transactions to the Federal Election Commission for disclosure to the public. The bill would, in short, deregulate the process and open it up to the public. Its simplicity is its virtue.

I’ve already spent much more time on this blog entry than I should have, so I’ll stop here for now, and let my colleague David Stokes tell everybody tomorrow why public funding of elections is one of the worst ideas under the sun.