Jewish World Review March 8, 2001 / 13 Adar, 5761
In "Murder in the Cathedral," T. S. Eliot, a better poet than moral philosopher, has a character say,
The last temptation is the greatest treason:
To do the right thing for the wrong reason.
Actually, in Washington it is good enough when people do the right thing for any reason. So it is gratifying, if not notably noble, that some Democrats, having recalibrated their self-interest in the light of last year's elections, are rethinking their enthusiasm for eviscerating the First Amendment in the name of campaign finance reform.
Prior to the last election cycle, they favored banning "soft" money -- the money contributed to political parties for uses other than for particular federal candidates, and not used expressly to advocate the election or defeat of a candidate. However, having done well in the 1999-2000 soft-money sweepstakes, and lagging behind Republicans in hard dollars -- contributions to political parties that are limited but can be spent for particular candidates -- Democrats are having second thoughts.
Those Democrats whose controlling principle is the pursuit of short-term party advantage will have third thoughts if convinced that their party's success at raising soft money was contingent on control of the presidency. But some Bush advisers may begin favoring a ban on soft money if many Democrats become wary of a ban. Tactical considerations always dominate when the political class writes laws limiting communication about -- and competition against -- itself.
In 1897 Nebraska, Tennessee, Missouri and Florida banned corporate contributions because, in the 1896 presidential race, such contributions helped William McKinley defeat the man who carried those states, William Jennings Bryan. In 1974 Congress enacted spending limits (declared unconstitutional by the Supreme Court in 1976) for House races of $75,000 (about $200,000 in today's dollars), far below what challengers must spend to threaten an incumbent. The Senate limits, also declared unconstitutional, would have protected incumbents. The limits started at a base of $250,000 and varied with a state's population, and included not just the candidate's direct spending but any spending "relative to a clearly identified candidate."
|We Rather not!|
Arguments for more regulation of political speech are fueled by hyperbole about supposed "torrents" of money pouring into politics. Such hyperbole probably has been heard ever since George Washington, at age 25, first ran for the Virginia House of Burgesses in 1757, spending 39 pounds for 160 gallons of rum and other beverages for the 391 eligible voters -- more than a quart of drink, at a cost of (in today's currency) $2, per voter.
However, since the Voting Rights Act (1965) and the 26th Amendment (1971) greatly expanded the electorate, spending per eligible voter in congressional races, in today's dollars, has hovered in a range from approximately $2.50 to $3.50 per eligible voter, inching up slightly in the highly competitive elections of 1994 and 1996 and reaching approximately $4 in the competitive elections of 1998 -- a bit more than the cost of one video rental.
If spending in the two-year 1999-2000 cycle for all candidates for all offices -- federal, state and local -- reached the "obscene" (as critics call it) total of $3 billion, that was $15 per eligible voter. And $3 billion -- $2 billion less than Americans spend annually on Halloween snacks -- is five-one-hundredths of one percent of GDP.
So writes Bradley Smith in "Unfree Speech: The Folly of Campaign Finance Reform" (Princeton University Press), which surely will be this year's most important book on governance. Smith, now serving on the Federal Election Commission, warns that if reformers succeed in getting the First Amendment thought of as a mere "loophole" in a comprehensive regime of speech rationing, they will have legitimized perpetual tinkering with the regulation of political speech for partisan advantage after every election cycle has been analyzed.
It is arguable whether, or how much, the First Amendment should protect obscenity, pornography, this or that "expressive activity" (e.g., topless dancing, flag burning), "fighting words" or commercial speech. However, no serious person disputes that the amendment's core concern is political speech. And the Supreme Court says, incontrovertibly, that in modern society, political speech depends on political spending.
As to whether limits on political spending abridge freedom of political speech, consider the Supreme Court's analogy: Would the constitutional right to travel be abridged if government limited everyone to spending only enough for one tank of gasoline? Or would the First Amendment right of free exercise of religion be abridged if government limited the right to spend money for church construction or for proselytizing?
The First Amendment -- freedom -- is the right reason for opposing "reforms" designed to regulate, and diminish, political discourse. But if only tactical considerations can cause Democrats to do the right thing, the wrong reason will be
Comment on JWR contributor George Will's column by clicking here.
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