The incoherence of limits

April 9, 2014

Some years ago, while I was serving as Commissioner at the Federal Election Commission, I entertained a delegation from China. Working through an interpreter, I was asked to give a brief description of campaign finance law in the United States. I tried to provide a simplified explanation, but as they asked questions, the complex nature of the law emerged. Soon I was attempting to explain the legal differences between “expenditure,” “independent expenditure, “express advocacy of election or defeat,” “electioneering communications,” “generic campaign activity,” “federal election activity,” “public communications,” and more. Finally, the interpreter had to stop me. “I don’t have any more words to make these distinctions,” she said.

Campaign finance law has indeed become a bewildering array of arcane, seemingly arbitrary distinctions and lines. In Citizens United v. Federal Election Commission, I was one of a group of former FEC commissioners who attempted, in an amicus brief, to impress on the court the exceedingly complex nature of the law. Among other things, we noted that campaign finance regulations imposed unique rules on 71 different types of speakers, for 33 different types of campaign-related speech.

Much of this complexity has come about from the interplay of courts and regulators (by whom I mean not only those in government who do the regulating, but the substantial complex of lobbying organizations and foundations that promote further regulation of campaign speech). Regulators pass laws that are so broad as to offend most any normal interpretation of the First Amendment. The Courts attempt to confine those laws to a limited space, leaving ample alternative avenues for free speech. The regulators then pass laws attempting to block off those alternative avenues, and another go around begins.

In Buckley v. Valeo, the court placed a good deal of political speech off-limits to the regulators, or at least it seemed to think it had done so. But Buckley let pass regulation of speech that was most “unambiguously related to the campaign of a particular federal candidate.” In short, the court has allowed regulation precisely at the point where speech is most important, in order to protect the public from possible “corruption.”

A democracy necessarily requires debate and efforts to influence voters, however, and officeholders will often be grateful to those who have helped them to positively influence the electorate. This is itself considered a form of “corruption” or “inequality, ” and hence efforts are made to limit that speech and thereby that influence. But when some speech is limited, some other speech or activity will become the primary source of influence, and hence “corruption.” And then the anti-circumvention principle will insist that that, too, must be limited. In short, campaign finance regulation inevitably seeks to pull more and more speech and political activity within its ambit. One should remember that in Citizens United, it was the government’s position that it was constitutionally permissible to prohibit corporations from publishing or distributing certain books and movies. The Court has attempted to put certain types of regulations — notably those motivated by egalitarian instincts — off limits, but policing motivations is difficult work, indeed.

The end result is that the Buckley framework, such approaches as were considered pre-Buckley, and doctrinal frameworks used in other elements of campaign regulation have all proven unstable. The courts are called upon to police a growing menagerie of laws and the distinctions they make are increasingly arbitrary in appearance. Justice Thomas forcefully made this point just last week in his concurring opinion in McCutcheon v. FEC.

Of course, complexity, and even arbitrariness, are not synonyms for unconstitutionality. But set against a First Amendment that says that Congress shall make no law abridging freedom or speech, they are certainly danger signs. This is particularly true if one believes, as the court sometimes suggests, that political speech is not like antitrust or some other complex field of law, but a core value that ought to be generally within the understanding of ordinary citizens without prior consultation with a lawyer. If there is no rational limiting principle to regulation, leaving the courts to make a series of ad hoc decisions creating what one observer has called a “patternless mosaic” of constitutional law, it may be evidence that regulation in the field is contrary to constitutional design and structure.

In short, it increasingly appears that no system of campaign regulation can reach a stable equilibrium with the constitutional imperatives of free speech. Something stronger is needed.

But there is perhaps a greater problem with regulation in the campaign field, that calls for a separation of campaign and state, and that is what former Senate Majority Leader Howard Baker called the “incestuous” nature of government financing and regulating campaigns. I will pick that up next.

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Eugene Volokh · April 9, 2014