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The Nationalization of Free Expression

by Edward H. Crane

This article appeared on cato.org on August 18, 1997.

Of all the affronts to our basic liberties that Congress cavalierly entertains these days, none approaches the audacity of the so-called campaign finance reform effort. It is nothing short of a frontal assault on the most basic of American freedoms, the freedom of expression.

Its proponents barely hide their contempt for the First Amendment. That House Minority Leader Dick Gephardt (D-MO) can remain a viable presidential contender after saying he prefers his version of "healthy campaigns" to "freedom of speech" should embarrass us all. So too should Gephardt's and former Senator Bill Bradley's incredible campaign to amend the Constitution to allow the federal government to control political speech.

Now comes President Clinton with his own blatantly unconstitutional call for the Federal Election Commission to bypass Congress and simply outlaw so-called soft dollars -- contributions from corporations, unions and individuals to political parties in support of their respective political views.

What's going on here? When polls show that Americans place campaign finance reform near the bottom of their policy priorities, why are politicians and self-styled public interest groups like Common Cause and Public Citizen nearly apoplectic about taking money out of politics?

The short answer is that politicians don't like competition from well-financed opponents. "Public interest" groups resent the intrusion of private money into a world tightly controlled by the political class. Since private money pays for information, the more of it there is in a campaign, the more candidates can communicate directly with the voters and the weaker the information gatekeeping powers of the media. Yet the Common Cause approach is typified by a campaign finance initiative passed in California last November, which would limit contributions for statewide office to just $500 and prohibit fundraising until six months before an election.

It doesn't take a rocket scientist to see who benefits from such a scheme. Incumbents, professional politicians and full-time political activists with mailing lists and high public profiles will prosper. A true citizen-candidate, someone who is successful in civil society but with a low public profile, is now a non-starter -- unless he is wealthy enough to finance his own campaign. The reformers, of course, are after self-financed candidates as well, in their effort to squeeze as much freedom and money out of the process as possible.

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There is, at bottom, something very worrisome about all the attempts to stifle speech and limit the information available to Americans during elections.

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It is instructive to reflect on the fact that had the 1974 FECA amendments been in place in 1968, Eugene McCarthy could never have gotten his campaign for president off the ground. Large, six-figure contributions from Stewart Mott and other wealthy opponents of the Vietnam War made his campaign feasible. Without those contributions, a sitting president, Lyndon Johnson, would not have been forced to drop his bid for reelection after McCarthy's strong showing in New Hampshire.

Contribution limits also greatly enhance the power of the media relative to the rest of us. In 1976 the Supreme Court ruled in Buckley v. Valeo that spending limits in the 1974 amendments were an assault on free expression but that somehow contribution limits were not -- as though the two were not related. The Court did, however, argue that "the concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment."

Yet that clearly is the effect of contribution limits. Consider that media personalities like Washington Post publisher Donald Graham, conservative radio celebrity Rush Limbaugh and nationally syndicated cartoonist Garry Trudeau can lavish hundreds of thousands, even millions, of dollars’ worth of positive or negative publicity on the candidates of their choice. Is that wrong? Of course not. They are part of a dynamic, open society. But they do not have First Amendment rights the rest of us do not have. Simply because we have chosen a career outside the media should not preclude us from raising, and spending, whatever money it takes to convey our views on one candidate or the other to an audience just as wide. Unless the advocates of campaign finance reform intend to regulate the media (and in the trendy liberal law journals they do), they've got a serious problem telling us the First Amendment does not apply equally to all Americans.

There is, at bottom, something very worrisome about all the attempts to stifle speech and limit the information available to Americans during elections. Indeed, if Congress passed a law saying we could only spend $1000 a year on, say, computers, Americans would rise up and tell Congress we'll spend our own money as we darn well please, thank you very much. Yet when it comes to something as important as expressing our political beliefs, we're supposed to say, sure Congress, whatever you say. As Jefferson admonished us, "Eternal vigilance is the price of liberty." Our shrinking right to free expression is evidence that we haven’t been vigilant enough.