This article in yesterday's New York Times, is really a paid advertisement that I ran to support my recent arguments about campaign finance in my C24 class. I have added bullet points to underscore the points that cost me top dollar.

Paying Up Is Speaking Up

 New York Times, October 24, 1999, Op-Ed Section
professor of constitutional law and dean at Stanford Law School.

STANFORD, Calif. -- Those who claim that our political system is awash in money, corruption and influence peddling were predictably upset that the Senate again defeated the campaign finance restriction proposed by Senators Russell Feingold and John McCain. The Senate's failure to ban "soft money" -- large contributions to political parties that are made to avoid tight restrictions on donations to candidates -- drew laments from editorial pages to corporate boardrooms, where some business executives now plead, "Stop us before we spend again."

  • The advocates of new, improved campaign finance reform are well-intentioned but misguided.
    • Of course none of us wishes to live in a plutocracy, where wealth alone determines political clout. But as Senator Mitch McConnell noted in a heated exchange with Senator McCain, American politics today is far from "corrupt" in the traditional sense.
  • And the most troubling features of political fund-raising today are the unintended consequences of earlier efforts at campaign finance reform.
    Begin with the allegations of "corruption." Contributions to candidates and parties today do not line anybody's pockets, as they did in the heyday of machines like Tammany Hall. Vigilant media and law enforcement now nip improper personal enrichment in the bud, as politicians involved in the savings and loan scandals found out to their detriment.
  • Political money today instead goes directly into political advertising, a quintessential form of political speech.
    Our large electoral districts and weak political parties force candidates to communicate directly with large groups of voters. This depends on the use of the privately owned mass media. Thus getting the candidate's message out is expensive.
  • Reformers sometimes decry today's political advertising as repetitious and reductive.
    • But it is not clear what golden age of high-minded debate they hark back to; the antecedents of the spot ad are, after all, the bumper sticker and slogans like "Tippecanoe and Tyler, Too."
  • Nor is there any doubt that restrictions on political money amount to restrictions on political speech.
    Reformers sometimes say they merely seek to limit money, not speech. But a law, say, barring newspapers from accepting paid political advertisements or limiting the prices of political books would also limit only the exchange of money. Yet no one would question that it would inhibit political speech -- as do restrictions on campaign finance.

    Unfortunately, the Supreme Court only half recognized this point when, in 1976, it struck down limits on political expenditures while upholding limits on political gifts. Expenditures, the Court reasoned, may not be limited in order to level the playing field, but political contributions may be limited to prevent the reality or appearance that big contributors will have disproportionate influence. So we still have in place the 1974 law limiting individual contributions to a Federal candidate to $1,000 per election -- the equivalent of about $383 in 1999 dollars -- and, perversely, candidates must spend ever more time chasing an ever larger number of donors.

  • The Court's noble but flawed attempt at compromise leaves us in the worst of all possible worlds: government may limit the supply of political money but not the demand.
    • This is a situation that in a commercial setting would produce a black or gray market, and politics is no different. Instead of money flowing directly to candidates, it flows to parties as soft money, or to independent advocacy organizations for issue ads that often imply support for or opposition to specific candidates.

    The next point is misguided. It shows that Prof. Sullivan is a lawyer and not a political scientist. I'm going to ask for a refund.

    Political spending and speech thus have been shifted away from the candidates, who are accountable to the voters, to organizations that are much harder for the voters to monitor and discipline -- a result that turns democracy on its head.

    Reform proposals such as McCain-Feingold proceed on the assumption that the answer is to keep on shutting down "loopholes" in the system. But in a system of private ownership and free expression, we can never shut all the loopholes down. If the wealthy cannot bankroll campaigns, they can buy newspapers or set up lobbying organizations that will draft legislation rather than campaign ads. When the cure has been worse than the disease, the solution is not more doses of the same medicine.

    Does this mean we should eliminate all campaign finance regulation? Certainly not. Even if we give up on contribution limits, we should retain and enhance mandatory disclosure and public subsidies -- two kinds of government intervention that are consistent with both democracy and the Constitution.

  • Mandatory disclosure of the amounts and sources of political contributions enables the voters themselves, aided by the press, to follow the money and hold their representatives accountable if they smell the foul aroma of undue influence.
    Such disclosure is an extraordinarily powerful and accessible tool in the age of the Internet.

    And more widespread public subsidies, like those now given in presidential and some state races, could, if given early in campaigns, help political challengers reach the critical threshold amounts they need to get their messages out.

    In ongoing debates about campaign finance reform, it is worth remembering that free speech principles bar the creation of ceilings on political money, but they do not bar the raising of floors.