Campaign Finance Proposals That Deter Speech Are Bad
Perhaps the first thing you should know about campaign finance “reform” proposals — at least those coming from the left — is that their ultimate goal is to deter speech about political issues. Whether it’s limiting campaign donations or spending, restricting the ability of corporations or other groups to publicize their views, or imposing disclosure rules, the goal isn’t to have better‐informed voters or a more dynamic political system, but to have less speech. Those who advocate these things want the government to have the power to control who speaks and how much.
That lesson was repeated to me during two public events I participated in yesterday. First, at a Senate hearing (which you can watch here; my opening remarks, a longer version of which you can read here, begin at 59:50) several senators seemed incredulous at my suggestion that we need more speech rather than less. After Sen. Dick Durbin (D-IL) tried to get me to admit that I was a Koch pawn, a particularly laughable charge in a year when the Kochs sued Cato over management issues, Sens. Sheldon Whitehouse (D-RI) and Richard Blumenthal (D-CT) were incredulous that I would want fewer restrictions and less disclosures than them. If I favor certain disclosure rules for donations to campaigns — which I do, in conjunction with eliminating donation caps, as I wrote yesterday — why am I against the DISCLOSE Act, which would impose certain further reporting requirements on independent political spending (and which failed last week after getting zero Republican votes)?
I should’ve just referred the senators to John Samples’s analysis of an earlier version of the proposed legislation, but in any event, the answer boils down to the idea that the required disclosures (of expenditures — which shouldn’t be confused with donations) are so onerous as to burden and deter speech with negligible impact on voter information. That is, as former FEC chairman Brad Smith explains in this video, disclosing that a TV commercial was paid for by Americans for Apple Pie, one of whose donors is the local chamber of commerce, one of whose donors is the U.S. Chamber of Commerce, one of whose donors is the national widget manufacturers’ associations, one of whose donors is Acme Widgets … doesn’t tell a voter anything. What it does do is require 20 seconds of the 30‐second ad to be given over to disclosure rather than the actual political speech. So what’s the purpose of the regulation if not to deter that speech?
Moreover, Super PACs already have to disclose their donors, and if their donors are corporations/associations rather than individuals, you can look up the people leading those entities in their corporate filings. And if the problem is “millionaires and billionaires” — there was more than one reference to the Kochs during the hearing, and I helpfully suggested that I’m happy to defend Georges Soros and Clooney as well — then no law short of a complete ban on political speech by individuals will do. Luckily, we have the First Amendment in place to stop self‐interested incumbents from trying that.
My second public event was an unlikely appearance on the Rachel Maddow Show, where I joined Harvard law professor Larry Lessig, who also appeared at the earlier Senate hearing, to discuss campaign finance regulation. I thought it went pretty well, and you can watch for yourself (segment titled “How to take American democracy back from the .000063 percent”). What’s telling is that guest‐host Ezra Klein was more even‐handed than the senators at the earlier hearing.
Finally, here’s another nugget from yesterday: As I exited the Senate hearing room, a young “reform” activist said to me, “I think you’re a fascist.” And here I thought that I did a decent job of getting across the point that we should have less government, not more.
