Against the scribes: campaign finance reform revisited.

• Author: McGinnis, John O.

It is a pleasure to be back at my alma mater to talk about free speech and, in particular, to address those who would like to restrict campaign expenditures to assure a more equal representation of voices in our political discourse. The desire to restrict others' speech to create a better world with more influence from good people like oneself is an all-too-human impulse. I myself remember harboring the same sentiment in this very room and in other rooms on this campus when, as both an undergraduate and a law student, I wondered why Harvard could not be required to have a fairer proportion of views more like my own rather than force me to endure an almost unvarying pall of left-liberal orthodoxy. Nevertheless, here I argue that the understandable temptation -- particularly seductive for intellectuals -- to use the government to enforce a preferred pattern of speech would both violate the Constitution and damage the political health and economic prosperity of our republic.

I devote most of my discussion to defending the principal holding of Buckley v. Valeo(1) that limitations on campaign expenditures are subject to strict and generally fatal scrutiny under the First Amendment. I provide three levels of argument in favor of this proposition. First, I show that its holding is rooted in the neutral principles that must underlie any coherent conception of the First Amendment. Permitting restrictions on campaign expenditures by politicians and issue groups would in fact so distort neutrality that it would lead to a baleful dominance of our political life by those whose business is to influence politics and culture -- the axis made up by the press, the academy, and Hollywood. Second, I demonstrate that the holding is supported by the original understanding of the First Amendment. Third, I argue that it is supported by modern First Amendment doctrine. I then respond to some criticism of my position at the conference. Finally, I will advance some tentative thoughts about Buckley's second important holding -- its validation of quite severe limits on how much money individuals may contribute to others' campaigns.

1. THE POLITICAL ECONOMY OF FIRST AMENDMENT NEUTRALITY

   1. Campaign Expenditure Limitations and Neutral Principles

      Under the provision of Federal Election Campaign Act of 1971 that was struck down by Buckley, a citizen who spent $1,000 to place an independent advertisement opposing the election of a President could have been prosecuted as a felon and put in jail for five years.(2) We can dramatically illustrate the neutral principles at stake in such attempts to restrict campaign expenditures by interested individuals and associations by appealing to a simple hypothetical. Let us assume that Congress, in order to prevent undue influence of any members of the press on elections, declares that no media outlet can spend more than $1,000 or even $100,000 to cover any electoral campaign. This hypothetical statute precisely mirrors the restrictions involved in campaign expenditure limitations. Like a restriction on campaign expenditures, it regulates only money and the money it regulates is not any less related to speech than the money used for campaign expenditures. Moreover, like many other restrictions on campaign expenditures, this statute would also not explicitly discriminate on the basis of viewpoint. Yet almost universal denunciation would greet this statute -- none more loud than from those in the press who support restrictions on campaign expenditures.

      To permit Congress to restrict campaign expenditures and yet not to restrict press expenditures privileges some individuals because they happen to be in the media. It therefore would distort beyond recognition the neutral principles that must guide the First Amendment. To put it in a more personal way, why should I have to be in the media to use my resources to make my voice heard? Why should my First Amendment rights approximate the absolute when I own (or am employed by) a portion of the media and can thereby deliver my message continuously, but disappear when I want to rent the media to deliver my message?

      I also use the comparison between restricting the political expenditures of the press and the political expenditures of those who produce material property for a living to show that restrictions on monetary campaign expenditures by their nature cannot equalize speech opportunities or influence, because restrictions on some kinds of information inputs to civic discourse will make other inputs more valuable. Those who would restrict monetary campaign expenditures merely take from one group and give to another: namely, the class of people whose influence derives from circumstances and characteristics not related to direct campaign expenditures. This fundamental truth also suggests that the only way to enforce neutral principles in the regulation of campaign expenditures is to prevent the government from making any distinctions between different kinds of resources deployed to support political speech, absent a very compelling interest to the contrary.

      Campaign finance restrictions in fact will have very damaging effects on the diversity of our political discourse and, ultimately, on our prosperity. They create a monopoly politics with a pronounced leftward ideological tilt by imposing barriers to entry on all but the influential groups whose business already directly influences our political and cultural life. The primary beneficiaries of these barriers are members of the press, because their information inputs into our political and cultural life are not restricted by spending limitations.(3) Restrictions on campaign expenditures would therefore make the press even more important political gatekeepers than they already are, because more messages would have to be refracted through them rather than delivered through independent media buys.

      In addition to the press, the whole class of people that manipulates symbols for a living (we can call them the "scribal class") would gain influence through government decisions to limit the money those outside this class could spend. Academics, Hollywood luminaries, and pundits of all kinds who fabricate ideas for a living would gain at the expense of those who produce a lot of material goods for society

      Moreover, campaign finance reform's empowerment of the scribal class has an important partisan political effect. Studies show that members of the Washington, D.C. press corps voted for Bill Clinton over George Bush at a rate of over thirteen to one in 1992.(4) Like the press, academics and Hollywood lean decidedly to the left.(5) Members of the press would use that influence not only to advance a predominantly liberal agenda but to perpetuate their own power. For instance, in the last primary contest many in the press were in full swoon over Senator McCain, whose major issue was -- surprise, surprise -- campaign finance reform. Talk about a quid pro quo between candidates and their supporters! Although I believe that Senator McCain is a man of unimpeachable integrity, an unfriendly observer could view the support of McCain for campaign finance restrictions and support of the press for McCain as an exchange not different in kind from that which campaign finance reform advocates regularly denounce.

      The scribal classes' support for restricting everyone else's political influence is not very surprising or even new. As a former classicist, I remember that in ancient times scribes tried to restrict access to writing and written texts in order to monopolize control over the written word.(6) Human nature does not change; four thousand years later, campaign finance reform is fundamentally a manifestation of the same scribal will to power.

      More generally, restrictions on money make non-monetary characteristics that can be used to promote political candidacies, such as celebrity, good looks, and free time, more valuable.(7) Retirees and recipients of government largesse will gain political advantages over those who produce a great deal of surplus for society. The time of the former groups is less valuable on the market, and therefore it will cost them less to make in-kind contributions (like handing out pamphlets and going door to door) than it costs the more productive whose time has a high market value.

      Thus, even if reformers were right that a particularly good political theory of equality could trump the First Amendment, they have not show us why, in a world full of all sorts of inequalities, money is a uniquely bad axis of inequality. First, as Professor Bradley Smith has observed, money is the most direct means by which everyone -- even those without celebrity or scribal talents -- can make their influence felt.(8) Thus money is more widely dispersed than the talents that the campaign expenditure prohibitionists would favor. Second, those with money are less skewed towards one party than those whose influence derives from the academy, Hollywood, or the press.(9)

   2. Adverse Political and Economic Effects of Campaign Finance Limitations

      It would also be unwise for the long term welfare of society to restrict campaign expenditures in a manner that would give those who produce little greater political influence than those who produce a lot. Indeed, campaign expenditure limitations could well have adverse effects on economic growth.(10) In his recent book, Power and Prosperity: Outgrowing Communist and Capitalist Dictatorships, Mancur Olson has shown that societies grow faster and have less conflict when the political power is diffused throughout the encompassing...