Free Speech, Political Equality, and Campaign Finance Reform: A Paradox for Democracy?

Abstract

Liberty to speak free of government interference and political equality are both essential to democracy. Yet political equality requires governmental regulation of resources needed for political speech. Analysis of Supreme Court cases, supplemented by considerations from democratic theory, suggest that this apparent paradox is better understood as a tension within the idea of free speech itself: between liberty to speak and the need for government to oversee fair distribution of resources necessary for politically effective speech. Although it is a tension worth negotiating with care, democracy simply requires fairness in distribution of politically relevant resources. The Supreme Court has erred in not reading the Constitution as mandating political equality as a fundamental right, and also in not incorporating real political equality as a compelling state interest. Therefore, the public should seek a 28th Amendment that would mandate political equality regardless of economic circumstance as a fundamental right, and inscribe into the document, for the first time, the word “democracy.”

Notes

¹ For a foundational statement of the perspective that informs this comment, see W.B. Gallie, “Essentially Contested Concepts,” Proceedings of the Aristotelian Society 56 (1955–56), reprinted in Max Black (ed.), The Importance of Language (Englewood Cliffs, NJ: Prentice Hall, 1962), pp. 121–146. For application of this approach with regard to specific political concepts, see William E. Connolly, The Terms of Political Discourse, 3^rd ed. (Princeton, NJ: Princeton University Press, 1993).

² Sidney Verba and Gary R. Orren, Equality in America (Cambridge, MA: Harvard University Press, 1985), p. 21. They call this “The Two Hundred Years' War.”

³ Robert N. Bellah, Richard Madsen, William M. Sullivan, Ann Swidler, and Steven M. Tipton, The Good Society (New York: Random House, 1992), p. 99.

⁴ Quoted in John F. Manley, “Class and Pluralism in America,” in John F. Manley and Kenneth M. Dolbeare (eds), The Case Against the Constitution: From the Antifederalists to the Present (Armonk, NY: M.E. Sharpe, 1987), p. 111.

⁵ Verba and Orren, op. cit., p. 258.

⁶ Burt Neuborne, Campaign Finance Reform & the Constitution: A Critical Look at Buckley v. Valeo (New York: Brennan Center for Justice, New York University School of Law, 1997), pp. 5–7. Neuborne's analysis was an important guide to framing the issues in this section, and in the later review of the cases from Buckley through Colorado I.

⁷ Kathleen M. Sullivan, “Political Money and Freedom of Speech,” UC Davis Law Review 30:3 (Spring 1997), p. 667.

⁸ Neuborne, op. cit., p. 9.

⁹ Buckley v. Valeo 424, U.S. 1 (1976), 48–49.

¹⁰ Ibid.

¹¹ For charts on media ownership, see “Who Owns What?” Columbia Journalism Review, < http://www.cjr.org/tools/owners/> and “Who Owns the Media,” The Free Press, < http://www.freepress.net/ownership/chart.php?chart = pub>.

¹² The Clear Channel Communications network, for example, now owns more than 1,200 radio stations. Jeffrey Chester and Don Hazen, “Showdown at the FCC”, AlterNet, May 1, 2003.

¹³ In April 2006 Congress defeated a bill that would have required equal treatment of internet traffic as it moves through the network. Laura Sydell, “Congress Votes Against Internet Neutrality Bill,” National Public Radio, April 27, 2006, < http://www.npr.org/templates/story/story.php?storyId = 5365854>.

¹⁴ On the importance of mobilization strategies for voter turnout and political participation, see Steven Rosenstone and John Mark Hansen, Mobilization, Participation, and Democracy in America (New York: Macmillan, 1993). On the debate as to whether inequalities have grown, see Jan E. Leighly and Jonathan Nagler, “Socioeconomic Class Bias in Turnout, 1964–1988: The Voters Remain the Same,” American Political Science Review 86:3 (September 1992); Richard B. Freeman, “What, Me Vote?” in Social Inequality (New York: Russell Sage Foundation Publications, 2004), ch. 18; Leighly and Nagler, “Class Bias in the U.S. Electorate, 1972–2004,” presented to the annual meeting of the American Political Science Association, August 31–September 3, 2006, Philadelphia; and Tom De Luca and Charles Tien, “Political Equality: Can this Ideal Be Saved in the Contemporary Era?” presented to the 20th International Political Science Association World Congress, July 9–13, 2006, Fukuoka, Japan.

¹⁵ Buckley v. Valeo, 56.

¹⁶ The NCPAC decision, as Neuborne suggested, “dealt the serious blow to public funding of presidential elections, since it destroyed the government's ability to place a real cap on candidate spending. After NCPAC, presidential candidates were free to accept the federal subsidy, knowing that they would also benefit from friendly PACs that would launch expensive independent expenditures to help their candidacies.” Neuborne, op. cit., p. 14.

¹⁷ The 1996 Colorado decision astounded critics, Neuborne wrote, because “it had always been thought that the spending of money by a political party would count against the amount of money a party could give its nominee.” Such spending allows candidates “to benefit from the limitless financial support, albeit ‘uncoordinated,’ of political parties.” Ibid., pp. 14–15.

¹⁸ Wendy Fritz believes Colorado II may have paved the way for the court to approve the Campaign Reform Act's soft money ban by expansively interpreting two of Buckley's exceptions to strict First Amendment protection of campaign financing: campaign contributions and anti-corruption interests. She thinks it is an example of a “campaign finance hybrid of contribution and expenditure” wherein party coordinated expenditures were viewed by FECA “functionally” as contributions. Wendy Fritz, “Note: Campaign Finance Reform After Colorado Republican II: The Constitutionality of the Campaign Reform Act's Soft Money Ban,” Boston University Public Interest Law Journal 12 (Fall 2002), p. 184.

¹⁹ Quoted in Samuel Issacharoff, Pamela S. Karlan, and Richard H. Pildes, The Law of Democracy: Legal Structure of the Political Process (Westbury, NY: The Foundation Press, 1998), p. 648.

²⁰ Quoted in ibid., p. 651. My emphases.

²¹ Briffault suggests the contribution limits only presented one First Amendment problem to the court: “whether the contribution limitation was so radical in effect as to render political association ineffective, drive the sound of a candidate's voice below the level of notice, and render contributions pointless.” Richard Briffault, “Nixon v. Shrink Missouri Government PAC: The Beginning of the End of the Buckley Era?” Minnesota Law Review 85:6 (June 2001), pp. 1750–1751. This issue later becomes important in Randall v. Sorrell.

²⁴ Quoted in Issacharoff et al., op. cit., p. 626.

²² The court's distinction between contributions and expenditures had already broken down in practice in Citizens Against Rent Control v. City of Berkeley (1981), striking down a $250 limit on contributions to committees formed to support or oppose ballot initiatives, calling it a restraint on both association and expression. Issacharaoff et al., op. cit., p. 630.

²³ Buckley v. Valeo, 290.

²⁵ Buckley v. Valeo., 23.

²⁶ Ibid., 19.

²⁷ If this is the case, then why did the court strike down a $250 limit in Citizens Against Rent Control?

²⁸ Unless it was willing to view campaign finance law as regulation of conduct, not speech, which it wasn't.

²⁹ Quoted in Issacharoff et al., op. cit., p. 655.

³⁰ Briffault, op. cit., p. 1771.

³¹ Quoted at Issacharoff et al., op. cit., p. 648.

³² For a good summary of the case, see “Bipartisan Campaign Reform Act of 2002 (McConnell v. FEC),” Brennan Center, Summary of Supreme Court Opinion, < http://www.brennancenter.org/programs/bcra/index.html>.

³³ Stephen Breyer, “Our Democratic Constitution”, NYU Law Review 77:2 (May 2002), pp. 245, 252–253.

³⁴ McConnell v. Federal Election Commission, 540 U.S. 93 (2003), 136–137.

³⁵ Justice Kennedy was concerned with the ruling, as was Hasen, because he felt the court had not seriously enough considered the way legislatures could draft a law in such a way as to protect incumbents and thereby lessen political dialogue. The National Voting Rights Institute was very troubled by the fact that the court upheld the doubling of hard money contributions to $2,000, feeling that the original Buckley limit was already much too high and kept the great majority of Americans on the sidelines regarding influence through this precious resource. It had filed suit in Adams v. FEC, decided alongside McConnell, challenging this increase on equal protection grounds. Although the court accepted the case, writing for the court Justice Rehnquist dismissed the challenge for lack of standing: “We have never recognized a legal right comparable to the broad and diffuse injury asserted by the Adams plaintiffs. … But we have noted that “[p]olitical ‘free trade’ does not necessarily require that all who participate in the political marketplace do so with exactly equal resources. … This claim of injury by the Adams plaintiffs is, therefore, not to a legally cognizable right.” Ibid., 227.

³⁶ Randall v. Sorrell, 126 S. Ct. 2479 (2006), 2495. Emphasis in the original.

³⁷ The danger signs were: 1) the limits were set on an election cycle basis rather than separated for primaries and general elections; 2) the limits were the lowest in the nation; 3) they were “well below the lowest limit this Court has previously upheld.” The other three “factors” not mentioned in the text of this article were: 1) the law placed the same limit on party as individual contributions to candidates; 2) some kinds of volunteer expenses were not exempted; 3) there was no automatic inflation adjustment. Ibid., 2492–2500.

³⁹ Nixon v. Shrink Missouri Government PAC, 528 US. 337 (2000), 405.

³⁸ Note, however, that he focuses on the responsibilities of “officeholders” not the needs of the democratic process regarding candidate time (let alone equalization of resources needed to level the playing field).

⁴⁰ Ibid., 2489–2490. Emphasis added. The sole distinction with Buckley, as drawn by the respondents, according to Breyer, is the argument that fundraising absorbs too much of a candidate's time. However, he is not convinced that the Buckley court would have ruled any differently had this argument been presented to it.

⁴¹ Brenda Wright of the National Voting Rights Institute speculates that Breyer's and Roberts' strong emphasis on stare decisis may be tactical, setting the stage for their opinions in several cases now the docket challenging Roe v. Wade. Once these cases are decided, might Breyer again re-think his commitment to Buckley as precedent? See Brenda Wright, “Analysis of Supreme Court's Decision in Randall v. Sorrell”, July 5, 2006, < http://www.nvri.org/about/new.shtml>.

⁴² Wesberry v. Sanders, 376 U.S. 1 (1964), 7–8.

⁴³ Quoted in Issacharoff, et al., op. cit., p. 136. Emphasis added.

⁴⁴ Justice Stevens concurring, Nixon v. Shrink Missouri Government PAC., 528 U.S. 377 (2000), 398.

⁴⁵ For example, Senator Hollings introduced one in the Senate in 1988, which at its height received the support of 52 senators. For years Representative Marcy Kaptur has introduced a similar amendment, most recently in February 2006.

⁴⁶ This is something that Representative Jesse Jackson, Jr. has been specifically trying to accomplish. See his website, < http://www.house.gov/jackson/VotingAmendment.shtml>.

⁴⁷ In 2005, the Tierney-Grijalva Clean Money, Clean Elections Act, HR 3099, was introduced in the House to introduce public financing of congressional elections, modeled on similar efforts below the federal level.

⁴⁸ Steven Lukes, Power: A Radical View, 2nd edition (New York: Palgrave, Macmillan, 2004).

⁴⁹ For a discussion of “mobilization of bias” and “scope of conflict,” see E.E. Schattschneider, The Semi-Sovereign People (New York: Holt, Rinehart and Winston, Inc., 1960).

⁵⁰ For a critique of the dangers inherent in an over-socialized view of this dimension of power, see Tom De Luca, The Two Faces of Political Apathy (Philadelphia: Temple University Press, 1995), chs 12, 13.

⁵¹ David Held, Models of Democracy (Stanford, CA: Stanford University Press, 1987), p. 202.

⁵² Robert A. Dahl, A Preface to Economic Democracy (Berkeley and Los Angeles: California University Press, 1985), p. 60.

⁵³ Ibid., pp. 161–162. For Dahl, certain forms of what has been called “economic liberty” can undermine not just political liberty, but the economic liberty of others.

⁵⁴ For Dahl's specific requirements for democratic associations, see ibid., pp. 57–58, and “On Removing Some Impediments to Democracy in the United States,” Dissent (Summer 1978), pp. 318–319. See also Tom De Luca, op. cit. “Conclusion: Real Political Equality”.

⁵⁵ This is done, in part, by being attentive to the onto-political status of claims to the effect that enduring inequalities are based in “nature.”

⁵⁶ On one aspect of political equality, the right to vote, see Alexander Keyssar's brilliant history, The Right to Vote: The Contested History of Democracy in the United States (New York: Basic Books, 2000).

⁵⁷ William E. Connolly argues that one virtue of the kind of pluralism needed today is “critical responsiveness” that “takes the form of careful listening and presumptive generosity to constituencies struggling to move from an obscure or degraded subsistence below the field of recognition, justice, obligation, rights, or legitimacy to a place on one or more of those registers.” Italics in original. William E. Connolly, Pluralism (Durham, NC: Duke University Press, 2005), p. 126.

⁵⁸ See, for example, Joan Hoff, Law, Gender, and Injustice: A Legal History of U.S. Women, reprint ed. (New York: NYU Press, 1994), ch. 1.

⁶⁰ Ibid., p. 87.

⁵⁹ Quoted in William E. Connolly, The Ethos of Pluralization (Minneapolis: University of Minnesota Press, 1995), p. 86. Italics in original. For Macpherson's discussion see C. B. Macpherson, Democratic Theory: Essays in Retrieval (Oxford: Oxford University Press, 1973). Macpherson's work, in part, was an effort to uncover and counter the bias in, and pinpoint the unacknowledged harms he saw emanating from, the pluralist model of democracy. He later wrote “that the equilibrium it [the political market system] produces is an equilibrium in inequality; that the consumer sovereignty it claims to provide is to a large extent an illusion; and that, to the extent that the consumer sovereignty is real, it is a contradiction of the central democratic tenet of equality of individual entitlement to the use and enjoyment of one's capacities.” C. B. Macpherson, The Life and Times of Liberal Democracy (Oxford: Oxford University Press, 1977), p. 86.

⁶¹ Ibid., p.89.