Bernie Sanders, Bipartisan Campaign Reform Act, Buckley v. Valeo, Bundler Disclosure, Campaign Contributions, Campaign Finance, Citizens United, Eigene Volokh, Elena Kagan, Federal Election Commission, First Amendment Protections, Hillary Clinton, Ilya Shapiro, Influence Spending, Jacob Sullum, Jeb Bush, Jeffrey Milyo, Jonathan Adler, Legislative Dysfunction, McCain-Feingold, McCutcheon v. FEC, Michael McConnell, Press Clause, rent-seeking behavior, Speechnow.org v. FEC, Spending Limits
Campaign finance is an area of internal conflict for some libertarians. On one hand, they do not believe in restrictions of any kind on freedom of expression. That implies no limits on what an individual can spend in support of a political cause, by themselves or in association with others, and whether it merely promotes a point of view or supports a political candidate. At the same time, libertarians are strongly opposed to rent-seeking activity, or efforts to use government power to promote private interests. Political spending is seen by many as an avenue for rent seeking, which suggests to them a need for limits on campaign contributions.
In fact, full-throated support of free speech and opposition to campaign limits do not stand in conflict. The reasons are: 1) such limits are an assault on free speech; 2) campaign contributions represent “small change” in the larger scheme of rent-seeking pursuits; 3) contributions seldom represent direct efforts to influence policy; and 4) imposed limits have a detrimental effect on the ability of elected officials to do their jobs.
Free speech, long interpreted by the courts more broadly as free expression, is protected by the First Amendment to the U.S. Constitution. This includes political expression, but traditionally it included campaign contributions as well, the latter being an obvious mechanism by which one can express views. However, the Supreme Court has upheld statutory limits on individual contributions to specific campaigns, as well as disclosure rules, on the grounds that they prevent corruption (Buckley v. Valeo and more recently McCutcheon v. Federal Election Commission(FEC)). I view the contribution limits as a contravention of the First Amendment, denying an enumerated right on the grounds that it “might” lead to corruption. If preventing corruption is the sole rationale for these limits, then government itself should be sharply limited, as it most certainly leads to graft and corruption at the expense of relatively powerless taxpayers.
A well-known Supreme Court case decided in 2010 involved independent political speech, as opposed to expression of political preference revealed by campaign spending. This was Citizens United v FEC, in which the Court ruled that political speech cannot be restricted on any basis other than corruption. As described by Ilya Shapiro, the case is widely misunderstood. One point of interest here is that the case related to speech by an organization rather than an individual. The Court ruled that a corporation (a nonprofit in the case) could not be prevented from airing a film critical of Hillary Clinton, striking down provisions of the Bipartisan Campaign Reform Act of 1990 (McCain-Feingold) under the First Amendment.
The Citizens United decision was NOT about campaign contributions. As an interesting aside, in a search of cartoons related to campaign finance, a great many imply that the Supreme Court abolished such limits in Citizens United. It did not. Even given some level of disaffection, it is hard to account for the near-complete lack of understanding about the case.
More informed critics of the decision bemoan that fact that it allows speech by corporations (and unions and other associations) to go unlimited, though they don’t seem to mind the absence of limits on political speech by media corporations. (See Eugene Volokh’s view in the Brown Daily Herald and Michael McConnell’s reinterpretation of Citizen’s United as a Press Clause case in the Yale Law Journal.) The critics also fail to recognize that corporations are associations of individuals, who are otherwise subject to no restrictions on independent speech or on what they can spend to speak independent of any political candidate (as established in Speechnow.org v. FEC in 2010). The technical treatment of a corporation as a “person”, which many find objectionable, is beside the point. Only by distorting the meaning of the First Amendment can any limitation be placed on the freedom of individuals to speak in association with others.
Jacob Sullum covers the confused legal thinking of leading Democrats Hillary Clinton and Bernie Sanders on campaign finance reform, and on Citizens United in particular. Jeb Bush is no better. Most of the opposition to the decision centers around the notion of “balancing” speech, but Sullum offers a piece of wisdom from a 1996 quote of future Supreme Court Justice Elena Kagan: “the government may not restrict the speech of some to enhance the speech of others.”
Corporate Campaign Spending
Another point raised by Ilya Shapiro is that corporate spending growth has neither accelerated nor decelerated in the wake of Citizens United. Moreover, restrictions on direct campaign contributions are still in place. However, campaign contributions are a relatively small percentage of corporate “influence spending”, averaging roughly 10% of the total between 2007 and 2012 for 200 large “politically active” corporations. Thus, direct campaign contributions are unlikely to be the primary avenue for rent-seeking activity. They might help buy “access” to politicians, but they may not be especially effective in influencing policy. These points are supported by University of Missouri economist Jeffrey Milyo in “Politics Ain’t Broke, So Reforms Won’t Fix It“. Milyo marshals empirical evidence that should make us skeptical of campaign finance reform efforts.
Jonathan Adler of Case Western emphasizes the legislative dysfunction created by campaign finance reforms. McCain-Feingold places limits on funds candidates can receive from their political parties and other sources, forcing them to spend a large proportion of their time on fundraising (and placing incumbents at a distinct advantage). If there is a shred of sincerity in the populist insistence that members of Congress be subject to tighter term limits, or that Congress is woefully unproductive, then full repeal of these limitations should be a priority.
Visibility Versus Effectiveness
The chief advantage of combatting corruption through regulating campaign finance is that it is a visible target. However, it is a target too rich with free speech implications. Disclosure requirements are one thing (through arguments can be made against infringements on the privacy of contributors as well). Limiting forms of expression outright is draconian, and reformers are unlikely to be satisfied until campaigns are funded entirely by taxpayers. Attacking “corruption” via limits on campaign contributions presumes a need to protect both contributor and recipient from their own guilt. Even if contributions help gain better access to an elected representative, it does not imply that the representative will act on motives counter to the perceived public merits of an issue. Moreover, the argument that limits on direct contributions to candidates “keep money out of politics” is flawed. Limits simply change the distribution of political spending, increasing the reliance on bundlers and organizations like Super PACs, and shifting the tables in favor of incumbents.
There are far better ways to combat corruption among legislators and others in government, some with more severe drawbacks than others. Term limits are one possibility, but would deny voters of legitimate choices. Another option is to allow candidates to have unrestricted access to campaign funds through central organizations, rather than forcing them to rely on independent Super PACs, which cannot always be relied upon to craft a candidate’s preferred messages. Immediate disclosure of contributors and amounts would help to bring more transparency to the campaign finance process. Stiffer disclosure requirements for “bundlers” would also help. Perhaps elected executives could be prohibited from appointing bundlers to positions of authority, though a precise definition of “bundler” might become contentious. There are other reform possibilities related to limiting permissible lobbying activity.
The libertarian’s dilemma with respect to campaign finance is easily resolved once the focus is placed squarely on protecting individual rights. In the end, the best defense of individual rights and against corruption in government is to limit government. It’s wise to place strong reigns on an institution that operates by virtue of coercive authority. The danger was well-acknowledged by the limits on government power enshrined in the Constitution.