Constitutional problems with campaign finance regulation

Bradley Smith

4/17/2007 12:47:36 PM - Bradley Smith

In his most recent Townhall column, Armstrong Williams has laid out a plan that he claims will "divorce" money from politics. In the process, Williams employs every tired canard of the campaign finance "reform" community.

But a few words were noticeably absent from Williams' column. There was no mention, for example, of "the First Amendment." Nor was there any mention of "free speech." And while I looked for "freedom" and "liberty," alas, these too were absent. This comes as no surprise. Advocates of political speech regulation have for so long felt unconstrained by the First Amendment's seemingly clear command, that "Congress shall make no law . . . abridging the freedom of speech," that they now ignore it as a matter of course.

The closest Williams comes to addressing the constitutional problems with campaign finance regulation is the bare assertion that "giving money is not giving voice." But it most certainly is. In modern society, money facilitates speech. It costs money to publish a newspaper or operate a broadcast station. It is not possible to run a political campaign or effectively criticize officeholders without spending money for signs, advertisements, rallies, mailers, and more.

Williams is not ignorant of the need for money in campaigns. In fact, his proposals recognize that money facilitates speech. But instead of relying on voluntary contributions, Williams wants to prohibit all private contributions and impose a "campaign tax." Rather than allowing you to give your money voluntarily to candidates you support, Williams would have the government take your money and give it to candidates of their choosing, candidates you may detest and who may hold positions that you find personally or morally offensive.

More than simply being unfair to taxpayers, such a scheme is fundamentally foreign to the system of government that the Founders envisioned. As P.J. O'Rourke says: "You want to get elected to change the government and the only place you can go to get the money necessary to run for election is the government you want to change. Do you see something a little East German about that?"

And it's not just individual taxpayers who would fund Williams' vision of "clean elections." Campaigns have to advertise, after all, and that can cost a great deal of money. So in addition to the new "campaign tax," Williams advocates "extensive free advertising on all public television, radio, print, and online media outlets." But just like there's no such thing as a free lunch, there's no such thing as "free" advertising. What Williams is really advocating is nothing less than the government seizing control of the media and giving those resources to candidates to use as they wish. And because his plan embraces all "online media outlets," it presumably applies to Townhall.com itself. I wonder how the readers of Townhall.com feel about that plan (not to mention Williams' publishers, whose assets will be taken under Williams' scheme).

Williams finds confidence for his scheme in the McCain-Feingold law, which he asserts, "showed that we can actually do something to stem the importance of money in politics." His timing is less than impeccable. Next week, Wisconsin Right to Life will appear before the Supreme Court to contest a Federal Election Commission ruling that, back in 2004, prevented WRTL from running advertisements that asked Wisconsinites to contact their Senators -- Russ Feingold and Herb Kohl -- and urge them to oppose filibusters of President Bush's judicial nominees. The FEC held that the ads were illegal under McCain-Feingold. Apparently, what McCain-Feingold shows we can do is silence criticism of, or even exhortations to, politicians.

What has McCain-Feingold given us in return for this affront to the First Amendment? Certainly it is not better or less corrupt government -- the era of McCain-Feingold is the era of Jack Abramoff, Duke Cunningham, and thousands in cash hidden in the refrigerator of Congressman William Jefferson. Five years after the passage and failure of McCain-Feingold, Williams' argument for tax-funded campaigns and more restrictions on voluntary, private political participation, simply boggles the mind.

When the Founders drafted the Constitution and the Bill of Rights, they were not naïve. They knew that men weren't angels, and that factions would sometimes try to harness the power of government for their own benefit. They wrote the First Amendment with full knowledge of this threat. Indeed, they wrote the First Amendment because they also knew that one of the surest checks against government corruption was the unfettered ability to criticize those in government. Williams' scheme abandons these cherished First Amendment principles. The likely result is more and harder to detect corruption. The long term effects could be even worse. As the Founders knew, prohibiting ordinary citizens from effectively discussing politics is no prescription for clean government. It is a prescription for tyranny.