THE FINAL RESULTS of this year's election won't be known until early Wednesday, but one fact is already clear: The Founders would cringe if they could see what has happened to American politics. The struggle for political equality which they launched nearly 200 years ago has turned into a struggle for prime time placements; free speech has turned into free spending; money is now king in our democracy.
This wasn't at all what the Founders envisioned. Only the tragically misguided decisions of our contemporary Supreme Court has made it possible.
Indeed, the underpinnings of our democratic system are being threatened by two recent decisions of the Supreme Court. These decisions have given protection to the polluting effect of money in our election campaigns. The voices of individual citizens are being drowned out.
The Supreme Court has made the unprecedented assertion that money is speech -- that controls on the amount of money spent in a political campaign are unconstitutional restrictions on free expression. To invoke the First Amendment not to protect diversity, but to prevent society from defending itself against the stifling influence of money in politics is to betray the historical development and philosophical underpinnings of the First Amendment.
There are many good rationales for strong legal protection of free expression: truth, autonomy and self-fulfillment, social stability and self-government. But none of them justifies the continuing and unchecked abuses that excessive spending has brought to the American electoral process.
The concepts of political equality and self- government stand or fall together. If persons are equal, then none has an inherent right to dominate or impose his will on others. Government can be legitimate only if it is based on the informed consent of all citizens. Rational self-interest dictates, therefore, that each assure his or her own liberty by agreeing to equal liberties for all, including the right to equal political participation.
Throughout American history the ideal of political equality has found eloquent expression, and gradual steps have been taken toward its realization. James Madison's words in Federalist No. 57 challenge us to fulfill their promise:
"Who are to be the electors of the Federal Representatives? Not the rich, more than the poor; not the learned, more than the ignorant; not the haughty heirs of distinguished names, more than the humble sons of obscurity and unpropitious fortune. The electors are to be the geat body of the people of the United States . . ."
In this century, the Supreme Court has played a major role in eliminating artificial barriers to equal electoral participation: the white primary, the poll tax and voter qualifications based on property. Most importantly, in the one-person, one-vote cases the court emphasized in the strongest and most eloquent manner the centrality of equal voting rights in the American democratic system. This evolutionary process has been interrupted, even reversed by the present court.
In Reynolds v. Sims, Chief Justice Warren wrote, "Representative government is in essence self-government through the medium of elected representatives of the people, and each and every citizen has an inalienable right to full and effective participation in the political processes of his state's legislative bodies."
In the reapportionment cases, the court moved toward a functional view of equal political participation. Previous cases had established the right to cast a primary or general election ballot and to have the vote counted. In Wesberry v. Sanders and Reynolds v. Sims the court added another building block -- the vote that is cast and counted must have a proportionately equal opportunity to influence the outcome of the election.
In Bullock v. Carter, the court held that the Texas system of requiring candidates to pay high filing fees was unconstitutional because it tended to exclude potential candidates who lacked both personal wealth and affluent backers, "no matter how qualified they might be, and no matter how broad or enthusiastic their popular support."
Political philosopher John Rawls maintained that the "worth of liberty" was not the same for everyone, because of "the inability to take advantage of one's rights and opportunities as a result of poverty and ignorance, and a lack of means generally." Chief Justice Burger seized upon this theme (in CBS v. Democratic National Committee, 1973) to justify allowing the television networks to close their airwaves to paid political announcements.
The public interest in providing access to the marketplace of ideas and experiences, the Chief Justice wrote, "would scarecely be served" by compelling broadcasters to accept paid political ads, because this system would be "so heavily weighted in favor of the fiancially affluent, or those with access to wealth."
But when it came to deciding the crucially important free speech-political spending cases, Buckley v. Valeo (1976) and First National Bank of Boston v. Bellotti (1978), the court did not have those same concerns in mind.
In the Buckley case, the court threw out portions of the Federal Election Campaign Act that limited overall spending by a candidate who does not receive public financing, that restricted independent expenditures for or against a candidate and that limited personal and family contributions to a candidate's campaign. The court insisted that "the concept that government may restrict the speech, i.e., spending of some elements of our society in order to enhance the relative voices of others is wholly foreign to the First Amendment."
In the Bellotti case the court extended this reasoning to strike down a Massachusetts law prohibiting corporate expenditures on statewide referendum issues not directly related to a corporation's business interests. The court repeated that spending was the same as speech, and insisted that there was no possibility of corruption in a referendum campaign. It thereby declared open season for the influence of concentrated wealth on initiative and referendum campaigns.
When money becomes more important than people, when media mastery weighs more heavily than appeals to judgment, when opportunities to communicate with voters are extremely unequal, the result is a cynical distortion of the electoral process.
In one of his greatest opinions, Justice Holmes wrote that "the best test of truth is the power of the thought to get itself accepted in the competitions of the market . . . That at any rate is the theory of our Constitution."
But the truth-producing capacity of the marketplace of ideas is not enhanced if some are allowed to monopolize the marketplace by wielding excessive financial resources. Just as proponents of the free market system generally recognize the need for government policing of the competitive economic process by enforcement of antitrust laws, proponents of freedom of expression must recognize the need for government policing of the competitive electoral process by campaign finance laws.
Unchecked political expenditures, no less than crass regulation of ideas, may drown opposing beliefs, vitiate the principle of political equality, and place some citizens under the damaging and arbitrary control of others. Limiting the amount that wealthy interests may spend to publicize their views enhances the self-expression of individual citizens who lack wealth, furthering the values of freedom of speech.
In another landmark case, Whitney v. California, Justice Brandeis expounded the safety-valve function of the First Amendment. (Campaign finance reform is consistent with this function, too.) Brandeis was concerned with the views of the downtrodden and discontended. The Founders knew, he wrote, that it is hazardous to discourage thought, hope, and imagination; that fear breeds repression; that repressio payon breeds hate; that hate menaces stable government; that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies; and that the fitting remedy for evil counsels is good ones.
But the argument of stability and order does not support unlimited political expenditures by the wealthy, nor does it immunize the lengthening shadow of Political Action Committees (PACs) in congressional elections. Indeed, if Brandeis, who fought vigorously against big, oppressive organizations and against concentrated wealth, had witnessed the contemporary electoral scene, he might have written that it is hazardous to discourage civic spirit, hope, and participation; that disillusionment breeds alienation; that alienation breeds apathy; that apathy menaces the democratic idea; and finally that the path of safety lies in allowing individuals an opportunity to persuade the public by participating freely and equally in the electoral process.
Prof. Alexander Meikeljohn argued that self-government was the fundamental principle of the First Amendment. Freedom of expression, he wrote, was the indispensable prerequisite for informed, rational decisionmaking; it was therefore essential to a self- governing populace of political equals bound by voluntary compact.
In earlier controversies self-government was best served by removing government restrictions on political expression. In today's political forum that ideal is also served by permitting government regulation of the influence of money in politics, so that the wealthiest voices may not dominate the debate by the strength of their dollars rather than their ideas.
Meiklejohn made a perceptive distinction between abridging speech -- which is sometimes permissible -- and abridging the freedom of speech -- which is almost always forbidden. His analogy was the town meeting, the paradigm of the direct democratic ideal. There, he noted, regulating and abridging communication (through the use of rules of procedure) is necessary for orderly presentation and intelligent deliberation.
An election campaign is finite in time and focuses on specific ballot decisions regarding specific alternatives. Expenditure limits and other curbs on campaign finance practices are analogous to rules of order at a town meeting, enforced so that the deliberative process is not distorted.
The First Amendment does not permit curbs on general discussion of political, economic, or social controversies. But, like the loud mouth and long talker at the town meeting, untrammeled spending during an election campaign does not serve the values of self-government, nor can it lay claim to First Amendment protection.
Thus, in the broadcasting industry, in which the number of usable frequencies is technologically limited, the court has been compelled to recognize the existence of clashing First Amendment interests: the claimed exclusive rights of the broadcasting licensees and the rights of others who seek access to the media to express their views.
To cushion the clash between the two groups the court has focused instead on the listeners, and has recognized that their First Amendment rights are better served by diversity than by monopoly. As Justice White wrote for the court in Red Lion Broadcasting Co. v. FCC, it is "the right of the viewers and listeners, not the right of the broadcasters, which is paramount."
Similarly, campaign finance restrictions protect the system of communications itself in the interest of both speakers and voter-listeners. Excessive and unequal spending by one side interferes with the other's communication and, if the inequality is great enough, can effectively and completely drown out the other's message to the voters.
The financial structuring of political contests, like the allocation offaccess to the broadcast media, undeniably produces a tension between competing First Amendment values. Those with unlimited resources do have a First Amendment claim to be free to decide how, where, and when to spend their money to advertise their candidates and political viewpoints. But the First Amendment analysis does not end with the identification of a single First Amendment interest.
In resolving the First Amendment conflict, the Red Lion principle supplies the appropriate rule of decision. The interests of the listeners in hearing a broad range of ideas are paramount. In Buckley and Bellotti, however, the court paid only lip service to the rights of listeners. Its primary solicitude was given to the privileged few who can spend unlimited amounts of money to purchase political effectiveness, rather than to the listeners -- the citizens who, by their vote, perform the most important of public duties.
Our democracy has moved a long way from the town hall, one-man, one-vote conception of the Framers. Politics has become a growth industry and a way of life for millions of Americans. The corrosive influence of money blights our democratic processes. We have not been sufficiently vigilant; we have failed to remind ourselves, as we moved from town halls to today's quadrennial Romanesque political extravagances, that politics is neither an end in itself nor a means for subverting the will of the people.