The Supreme Court's decision on campaign finance is a triumph of political correctness over the Constitution. The First Amendment says that "Congress shall make no law . . . abridging the freedom of speech." It does not permit an exception for areas of Congress's "particular expertise," such as political campaigns. But five members of the court have carved out this exception to uphold McCain-Feingold, which otherwise would contain unconstitutional limits on political speech and association.
To justify abolishing basic constitutional rights, the court cites the danger that wealthy interests could, through campaign contributions, capture government for their purposes. But if the wealthy are trying, they either have botched the job or are remarkably charitable.
Consider. In 2000 (the latest figures) the richest 1 percent of Americans paid 26 percent of federal taxes and the richest 10 percent paid 52 percent, says the Congressional Budget Office. Meanwhile, most spending goes to the poor and middle class. In fiscal 2003 federal spending, excluding defense and interest payments, totaled $1.6 trillion. Of that, 81 percent went for social programs, including $475 billion to 47 million Social Security beneficiaries, $249 billion for 41 million Medicare recipients, $161 billion for 40 million Medicaid beneficiaries and $25 billion for 21 million food stamp recipients. Similarly, most regulations target businesses.
Maybe there's strong evidence that big contributions have corrupted lawmaking. Actually, there isn't. The court majority asserts that there is, but in a 119-page decision the justices devote only one paragraph to the evidence. They mention three controversial proposals that allegedly foundered on contributors' influence. Who said so? Well, two former senators who favor McCain-Feingold. What else would they say?
By contrast, many academic studies have examined the impact of contributions on legislation. Summarizing about 40 studies, three social scientists from the Massachusetts Institute of Technology concluded: "The evidence that campaign contributions lead to a substantial influence on [congressional] votes is rather thin." Generally, members of Congress follow their political philosophies and constituents' interests. Even big contributions are so splintered that individual donors' influence is weakened.
The court's main justification is "the appearance of corruption" -- a concept first embraced in the landmark 1976 case Buckley vs. Valeo. This is lawyer-speak for political correctness.
If enough important people believe big contributions corrupt, then Congress can legislate even if actual corruption is negligible. Of course, the logic is self-fulfilling. If "appearances" matter, then "reformers," crusading journalists and sympathetic judges will establish "appearances" by constantly deploring the seediness of fundraising -- the peddling of "access" -- and stigmatizing incidents when big contributors win congressional victories. Legislators who got contributions and sided with their contributors are automatically assumed to be corrupt captives. It's guilt by association.
Naturally, two custodians of respectable opinion -- the editorial pages of the New York Times and The Washington Post -- hailed the court's decision. The Times called it a "triumph." What's being applauded is the repeal of the First Amendment as it applies to political campaigns, a process that started with Buckley. In that decision, the court upheld limits on campaign contributions (to combat apparent corruption) but said that anyone could spend "independently" any amount on behalf of a candidate (this equated spending with free speech). In practice, the dual goals are incompatible.
The law essentially mandates that to enjoy free speech you have to sacrifice free speech. Let's see why. Suppose you want to spend to elect candidate X. You talk to the campaign manager, who tells you when to buy TV ads. In effect, your spending becomes a "contribution." You might as well have given directly to the campaign. To prevent this, the Federal Election Commission prohibits "coordination." Rules tell you what you can and can't discuss with a campaign. It's a speech code. Gun groups or pro-abortion groups that support candidates can't have open discussions with them. This sounds absurd because it is.
McCain-Feingold adds new restrictions. Because contributors evaded past limits, the new law bars "soft money" donations to national parties. It bans unions, corporations and many interest groups from using their own funds to run "electioneering communications" -- ads via TV, cable, radio or satellites identifying candidates -- 30 days before a federal primary and 60 days before a general election. State parties are restricted in how they pay for registration drives and get-out-the-vote campaigns.
More restrictions loom. About 37 states now limit campaign contributions for state races, reports Common Cause. Robert Stern of the Center for Governmental Studies, an advocate of more regulation, says: "We may see an explosion of state laws -- not in 2004 but in 2005." States might extend regulation of "electioneering communications" to newspapers and the Internet, which Congress hasn't yet done. Given the court's loose standard -- and its deference to legislative judgment -- almost anything seems possible if someone asserts an "appearance of corruption."
None of this will elevate public trust or political engagement. By criminalizing much of ordinary politics, the law risks deterring involvement. Even lawyers can't always say what's legal and what isn't. Congress and state legislatures may manipulate the finance laws to hurt their opponents, just as they do with redistricting. Finally, legal attempts to evade the law -- by parties, interest groups and individuals -- may inspire cynicism.
The court's decision is a constitutional crime that invites comparison with Plessy v. Ferguson (1896), the ruling that upheld racial segregation on the theory that "separate" could be "equal." Like Plessy -- which was ultimately reversed -- this decision contradicts the express language of the Constitution and will someday collapse of its own absurdities. Until then, its supporters will flatter themselves that they are improving democracy when they are actually degrading it.
