Legalized Bribery

BY CLIFFORD GINN

In Buckley v. Valeo, the Supreme Court upheld the contribution limits in the Federal Election Campaign Act of 1974, but struck down expenditure limits (an expenditure is the spending of money “relative to a clearly identified candidate”). Buckley did not, however, make expenditure limits per se unconstitutional, and a quarter century of experience under the Buckley framework demonstrates exactly why they should not be. While expenditure limits ought to survive scrutiny under the Buckley framework, it is also clear that faulty legal and factual reasoning underlie much of that framework.

First of all, Buckley was only ruling on the highly restrictive expenditure limits before it, not on all expenditure limits that Congress could conceivably design. Second, the Court did not find a sufficient relation between expenditure limits and the goal of preventing corruption or its appearance. This was so because the Court construed FECA’s expenditure limits as only reaching “express words of advocacy,” and recognized that anyone who wanted to influence campaigns could quite easily avoid such words. The Court adopted this construction to avoid vagueness concerns, but nothing precludes Congress from designing expenditure limits that reach a wider range of speech without creating vagueness problems. For example, Congress could regulate any ad that uses a candidate’s name or picture, or otherwise obviously indicates a candidate (reference to “the President,” for example). McCain-Feingold has adopted a similar definition for “electioneering ads” in its disclosure provisions. Such language would tighten the fit between end and means.

Third, the Buckley Court said expenditures do not appear to pose any danger of corruption or its appearance, as they may provide little or no assistance to candidates. This statement was difficult to take seriously at the time, and later experience has demonstrated just how wrong the Court was. Anyone who wants to influence candidates through independent expenditures can simply hire a media consultant to figure out the best way to do so, or mimic ads that the candidate is already running. Both practices are prevalent today. The Court used the same reasoning to suggest that independent expenditures would not be an effective means to circumvent contribution limits and that contribution limits would therefore be sufficient to address the government’s “compelling interest” in preventing corruption or its appearance. The argument fails for the same reasons.

While the “exacting scrutiny” the Court applied to expenditure limits is usually fatal, it is not always so. Restrictions on independent expenditures by corporations (Austin v. Michigan Chamber of Commerce) and a ban on electioneering activity near polling places (Burson v Freeman) have both survived strict scrutiny. Austin recognized a “compelling interest” in preventing the economic advantages conferred by the corporate form from translating into an “unfair advantage in the political marketplace.” Burson accepted the need to prevent voter intimidation and election fraud. Other potential interests include freeing officeholders from the pressures of fundraising so they can perform their duties, and preserving faith in democracy.

Albuquerque, New Mexico, has had limits on campaign expenditures for a quarter century, and while two-thirds of the city’s voters characterize national elections in New Mexico as “dishonest,” a majority consider local elections fair and honest. The limits on campaign expenditures that come with public financing have dramatically improved voter turnout and competitiveness of races in the states that have adopted such schemes. Mountains of polling data and information on correlation between independent expenditures and candidate voting records add to the practical experience undermining Buckley’s assumptions.

However, the fact that Buckley would allow expenditure limits does not make its framework correct. The Court rejected an analogy to U.S. v. O’Brien (upholding a statute criminalizing burning of draft cards), saying that, unlike the burning of draft cards, spending of money was lawful activity, and that FECA was directed at limiting speech, while the statute in O’Brien was not. However, spending money effectively to bribe politicians is not obviously lawful activity. Furthermore, while there was substantial evidence that the statute in O’Brien actually was directed at speech, Congress explicitly and plausibly directed its statute at the suppression of corruption, which suppression had an incidental impact on speech. While the effect on speech was certainly substantial, that can be accounted for in applying the O’Brien test, which is much more generous than the Buckley test.

The Court also erroneously refused to treat FECA as a regulation of time, place, and manner of speech (also less demanding than Buckley). Apparently, while limiting use of sound trucks (Kovacs v. Cooper), the only effective means of communication available to some, is acceptable to avoid irritating people, limiting use of the most expensive means of communication is unacceptable, even to prevent the collapse of American democracy.

It is also curious that the Court finds government funding of speech by major parties (excluding third parties) unproblematic – even though it perpetuates the power of the two incumbent parties – but applies exacting scrutiny to measures that logic and experience have demonstrated weaken the power of incumbents. A number of voting rights cases have taken the opposite approach, and rightly so.

Powerful arguments against expenditure limits refer both to the responsibility citizens have for maintaining their democracy, and the fact that alternative political viewpoints can still be heard. This argument suggests that no limits of any kind should be placed on political corruption, since citizens have the vote. Leaving aside the problems of collective action, it is unfair to demand that people who work long hours and support families do exhaustive research on the increasingly untraceable expenditures in political campaigns. Indeed, the lack of time, resources and education that make such an undertaking so difficult are in large measure a result of the very abuses campaign finance regulation seeks to combat, as is the ownership of almost all the major avenues of communication by a small oligopoly of corporate behemoths. It does not insult individual autonomy to provide some legal assurance that political representatives are not for sale. Of course, whatever significance autonomy arguments have for the equality rationale behind campaign finance regulation, they do not meaningfully address the corruption rationale.

While campaign finance regulation must be conducted with careful consideration for particular provisions in the Constitution, we must seriously question a constitutional interpretation that requires us to allow wealthy individuals and corporations to destroy the very democratic republic the Constitution sought to create.

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