Influence Buying And Free Speech
Senators try to set fund-raising limits without violating First Amendment.
Does the spending of money for political purposes equal "speech"?
In a broad sense, yes, the Supreme Court said 21 years ago. Effective political speech requires money, and therefore limitations on the use of money in a political campaign are limitations on speech, it was argued.
So, the court held, political spending is protected by the Constitution's First Amendment, which guarantees freedom of speech.
But the court did not find an unlimited right to political spending. There are significant exceptions.
As the Senate debates proposals to change the way American campaigns are funded, therein lies the core question: how to fix a campaign-finance system most voters think is corrupted by big money while honoring the freedoms the nation holds so dearly.
"There are serious questions about devising effective campaign finance regulations within the framework of the First Amendment, as it is currently understood," says Mark Tushnet, a law professor at Georgetown University in Washington.
Other countries, even those with strong free speech rights, such as Germany and Canada, don't wrangle over this issue the way Americans do. Germans share the notion that campaign spending is speech, but their culture allows for more regulation of that spending.
"Our culture of free speech is much more free-wheeling than anyone else's, so we're much more nervous about limiting it," says Professor Tushnet.
Still, strong limits already exist in American campaign finance. Presidential candidates who accept government funds for their campaigns also must agree to limit their spending. And, the court ruled in 1976 in the case Buckley v. Valeo, it is permissible to limit contributions to campaigns.
Even though the court struck down key portions of the Federal Election Campaign Act in its Buckley ruling (such as limits on expenditures in campaigns below the presidential level), the majority of justices also endorsed the primary purpose of the campaign law: "to limit the actuality and appearance of corruption resulting from large individual financial contributions."
Thus, they found a "constitutionally sufficient justification" for the $1,000 limit on campaign contributions by individuals.
How does all this fit in to the current debate on "soft money" and issue advocacy? With great contention.
The big money that fueled the 1996 election came in the form of soft money, the unlimited donations to political parties that are used for party-building and get-out-the-vote drives. The Senate campaign reform bill, known as McCain-Feingold, includes a provision to ban soft money.
Supporters of the ban contend that these large contributions, given with (in some cases) the express purpose of currying favor with politicians, can be outlawed with constitutional justification, just as the "appearance of corruption" was found to be a sufficient justification to limit donations to candidates 21 years ago.
"The soft money loophole, I believe, can be closed because soft money is nothing more than a campaign contribution," Burt Neuborne, a law professor at New York University, told a Senate hearing last week. "It falls directly into the kind of contributions that the Buckley court said could be regulated to prevent corruption or the appearance of corruption."
The case of Roger Tamraz, the wealthy oil financier who donated $300,000 to gain access to the president - a goal he achieved - provides a stark example of someone trying to buy influence.
But whether that incident equals "corruption" is in the eye of the beholder.
Some legal scholars look at soft money as being appropriately used for "issue advocacy" - and issue advocacy cannot be limited, under free speech doctrine, they argue. "The clear dividing line the court established was in permitting limits on contributions for express advocacy of a particular candidate," says Joel Gora, a professor at Brooklyn Law School. "Soft money by definition is not candidate advocacy money, it's issue advocacy money."
Critics of the "money equals speech" principle argue that it is inherently unfair that people with more money are entitled to "more speech." Activists hoping to nudge the Supreme Court toward overturning Buckley say that, in effect, the poor are disenfranchised, because they have no money to buy political speech.
But the American Civil Liberties Union (ACLU), which opposes banning soft money, argues in return that our political system cannot guarantee every person equal influence in the process.
"The First Amendment doesn't require the government to set up a regime to make every speaker equal," says Laura Murphy, an ACLU official. "There are people who have greater speech rights not only because of money, but because they're a member of a royal family or a movie star or a basketball player."
But money doesn't drive the political system entirely, Ms. Murphy says. If it did Steve Forbes would be president and Michael Huffington would be a senator.