When Free Speech Can't Even Be Bought

November 22, 2000

The First Amendment stands in the way of campaign finance reform.

Campaign spending controls began after Hubert Humphrey's 1968 presidential race
accepted campaign contributions consisting of $100 bills stuffed in paper bags, and
New York Rep. Richard Ottinger outraged liberals by defeating Ted Sorenson in the
1970 Democratic Senate primary by spending $3 million of his family's money.

Those controls effectively ended in the 2000 campaign. In this election, outside
money often exceeded campaign money in financing both Gore and Bush television
commercials, and Jon Corzine, the Democratic candidate in New Jersey, spent $60
million of his own money to win a seat in the U.S. Senate.

So it is time to face up to reality: If there are to be controls on spending money in
political campaigns, the First Amendment will have to be amended to permit them.

Thirty years of campaign reform statutes, most notably the Federal Election
Campaign Act of 1971 and its 1974 amendments, have failed to stop the flow of
money into politics and candidates' campaigns. The U.S. Supreme Court struck down
some of the restrictions on the ground that spending to communicate ideas is free
speech, and seems about to strike down some more. Political parties, interest groups
and candidates have managed to end run those that remain.

Over the years, Congress and the courts have tried to split hairs: limit contributions,
but not expenditures; limit "express advocacy," but not "issue advocacy" or
"independent expenditures." Reformers want to control the length and frequency of
television advertising and the price of campaigns; limit get out the vote drives, keep
people under 18 from contributing to campaigns at all, and limit out-of-state
contributions to federal campaigns.

In September 1999 the House passed the Shays-Meehan campaign reform bill, which
was so complicated it would have even regulated background music in campaign
commercials: Tunes are fine but no lyrics are allowed, for the words to "Just My Bill,"
or "Once in Love with Amy" would be just too great an advantage for candidates with
those names. It would have regulated television and radio and the Internet, lest
those messy and uncontrolled sites unduly influence our thinking. It would have
allowed your local paper's editors to take a full-page ad to denounce or praise
candidate X, but forbid you, or the Sierra Club or Barbra Streisand or Charlton
Heston and his organization from doing the same. Vice President Gore would take it
a step further by establishing a Democracy Endowment to which tax-deductible
contributions could be given and which, through presidential appointees, would
decide which candidates could spend how much, when and where.

What Shays-Meehan, McCain-Feingold (similar campaign finance legislation in the
Senate), or the Gore commission legislation would in reality do is transfer electoral
power from citizens to the establishment press and a government agency, which is in
exactly the wrong direction. The people on the Potomac believe they know better 
than we do in determining what kind of information we should receive about
candidates and ideas before an election. But their proposals are clear suppressions of
free speech in violation of the First Amendment.

So if the reformers--Sens. John McCain and Russell Feingold and Reps. Christopher
Shays and Martin Meehan, Common Cause and their supporters--are honest people
they will do the honorable and only effective thing: They will propose to amend the
First Amendment to carve out an exception so that the Constitutional free speech
guarantees ("Congress shall make no law . . . abridging the freedom of speech, or of
the press") shall not apply to campaigns and Congress may then regulate campaign
speech. Anything less would be illusory, for all the alternatives have failed.

In fact, that effort has already begun. In March 1997 38 U.S. senators voted for S.J.
Res 2, giving Congress the power to limit and control campaign contributions and
expenditures in federal elections and the states the power to do the same in state
and local elections. Rep. Dick Gephardt, a Missouri Democrat and the House minority
leader, introduced a constitutional amendment permitting Congress for federal
elections, and states for all other elections and initiatives and referenda, to regulate
"funds expended, including contributions, to influence the outcome of elections."

Imagine the mischief that can be wrought here. The scope of the phrase "to
influence the outcome" is potentially all-inclusive. Initiatives thought inappropriate,
say California's watershed Proposition 13 reducing taxes, or Washington state's
Proposition 200 ending racial preferences, could simply be financially starved to
defeat. All the excesses of McCain-Feingold, from background music regulation to the
length and frequency of television ads to the content of Web sites, would come to
pass at the hands of a wise and benevolent and politically appointed commission. It
is a breathtaking thought, and a thought so contrary to the heritage and culture of
the American experiment that it has already exceeded the time it is worth.


But it is the only thought left for the left if it wishes to reign in the nearly $5 billion
spent in 1999-2000 to elect the leaders of the land of the free. That $5 billion is just
a bit more than our nation spends on laundry detergent ($4.7 billion) and a bit less
than it spends on batteries ($5.6 billion). Indeed, it comes to the enormous sum of
$10 per person per year.

Liberals will soon demand that the First Amendment be amended to end this
outrage. Cooler heads will hopefully prevail and the political debates that have
served us so well for two hundred years will continue.


Mr. du Pont, a former governor of Delaware, is policy chairman of the Dallas-based National Center for Policy Analysis. His column will appear Wednesdays.

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