The several pillars of political democracy each seem inviolable first principles, but they exist in necessary tension with one another. Viewing any one principle in isolation, we too easily conclude that it is the indispensable element—the trump. For example, democracy entails both liberty and equality. But neither ideal can be taken to its logical extreme without wrecking the other, and wrecking democracy. Perfect equality requires dictatorship. Perfect liberty is anarchy.
As our cover suggests, one such tension operates between free elections and free speech. In their zeal to get money out of politics, reformers stand accused of menacing free speech and thus undermining democracy. But conversely, if money buys elections, democracy is also impaired. Democracy needs both things: free, vigorous debate; and elections relatively uncorrupted by the special power of money. Happily, as I will suggest in this essay, this seeming dilemma is largely a false dichotomy.
At our constitutional founding, America's framers were properly obsessed with the question of how to balance majority rule with the protection of minority rights; and how to balance effective governance with limited government. Both the structure of the original constitution and the subsequent Bill of Rights reflect these concerns.
There are similar democratic tensions between personal freedom and public order and between individual rights and public purposes. Whenever private income is taxed to buy collective goods, or private property is taken for public uses, the common good makes a claim on the individual sphere. Whenever police power is used to assure order, individual rights are at risk. Both the Congress and the courts endeavor to balance these objectives, each a kind of first principle but none a summum bonum. So democracy is an imperfect and ever-shifting balance between competing ideals.
These several democratic balancing acts are worth keeping in mind as we explore the subject of several articles in this issue—the particular tension between democratic elections and free speech. Each is a first principle of democracy: You cannot have true representative government without free expression, and you cannot have it if money trumps votes. The Supreme Court, in Buckley v. Valeo, allowed limits on contributions but not expenditures. But the Court's Jesuitical distinction has been overwhelmed by ever more baroque campaign maneuvers and the failure of Congress to act.
This dilemma, common to all democracies, presents itself with special force in the United States because of our cherished First Amendment. Yet among democratic nations, America's political debate is not uniquely robust—particularly given our preferred national mode of electoral dialogue, the paid television commercial. Several European nations with no First Amendment and tighter regulation of both the flows of money and the conventions of campaigning have less commercialism in politics, higher rates of voting turnout, and more vigorous public deliberation. But in our conception of liberal democracy, we Americans—especially we liberals—reserve a special place for free speech.
My own view is that the greater threat to American democracy today is the corrosive influence of big money in politics, not the erosion of free speech. Indeed, money warps the form and content of democratic conversation. It is worth pausing for a moment to disentangle the various reasons why this trend is ruinous for political democracy.
First, of course, democracy is based on one-citizen/one-vote. One-dollar/one-vote is the first principle of the marketplace. The necessary tension between democratic capitalism and republican government is another in our series of ongoing balancing acts.
In recent years, the cost of campaigning has escalated. The ability to raise money becomes the defining hurdle of who is a convincing candidate. Politicians who can raise more money get their message out more effectively. The best-financed candidate doesn't always win, but has an edge. Incumbents tend to benefit disproportionately. As my colleague Paul Starr noted in his essay "Democracy v. Dollar" [January-February 1997], in 1996 House races the candidate who raised the most money won 92 percent of the time; in Senate elections, 88 percent.
As politicians pander more and more to donors and have less and less time for ordinary voters, democracy itself is compromised. The ideal of an informed electorate debating the public good becomes ever further removed from the grubby reality. This is not to say, of course, that democracy can or should exist without interest groups, or that interest groups shouldn't enjoy free speech. But an interest group that commands a politician's attention because it has aggregated millions of voters is somehow closer to the democratic ideal than one whose influence is based on writing a large check.
When private donations finance campaigns, money plainly buys influence. According to Common Cause, the winners of tax preferences in the 1997 tax and budget accord were groups that had contributed some $300 million in "soft" (unregulated) money since 1995. Attorney General Scott Harshbarger, the current front-runner for the Democratic nomination for Massachusetts governor, routinely and in person solicits contributions from people with legal business pending before the attorney general's office. This, incredibly, is legal. Harshbarger unblushingly insists that he keeps his two roles separate, that the donors are giving only because they think he'd make a great governor. In a system of full public financing, it would be illegal for candidates to raise large private sums for their campaigns, and this brand of gross conflict of interest would be wiped out.
Three aspects of the money-and-politics quandary should be of special concern to liberals. First, the money hurdle, by definition, deters the impecunious from entering electoral politics. It is depressing to spend half your time raising money. A lot of talented populists who might champion ordinary citizens and rouse the electorate from its torpor never get into the race.
Second, the centrality of money turns off voters, who may not know all the nuances but who sense all too accurately that ordinary citizens have less access than large donors. The rise of big money, the dominance of professional consultants, expensive TV spots, focus groups and polls, and the decline of voting are reciprocal symptoms of a common malady.
Third, the money chase tilts the substance of debate to the right, and whipsaws the left-of-center party. With a few exceptions like the AFL-CIO and the AARP, both widely publicized but massively outspent, most players in this game are wealthy; PACs based on aggregations of ordinary citizens are the exception. If you want to raise a lot of money from rich people, you want to look sensible to them; you hew almost unconsciously to starboard. Like the falloff in voting, the concurrent ascendance of the DLC brand of Democratic ideology and the reign of big money are more than coincidental. As I argued in my 1987 book, The Life of the Party, Democrats are damned either way. As the party of the common American, they are chronically outspent; but if they pursue wealthy funders, they sell their souls. Republicans face no such conundrum. Their affinity with wealth is second nature. Well-heeled special interests pay Republicans to be true to their values and constituencies; they pay Democrats to betray both.
What, then, to do? There are several related issues here. What is the ideal regulatory schema to keep money from ruining democracy? What would enhance rather than constrain speech? What is politically possible? And what would pass muster with the courts?
I don't share my colleagues' view that Buckley is sacrosanct, or that reasonable constraints on the giving and taking of campaign money would compromise free speech. If anything, the current brand of money-driven politics is leading to trivialized and one-sided speech, and driving out genuine democratic deliberation. In the dominant mode of campaigning, politicians spend huge chunks of their scarce time cultivating rich people. The money, in turn, is spent on counterfeit forms of discourse: focus groups as surrogates for meetings with real voters; commercials as forms of one-way communication. At any given moment, voters may be swayed by a negative TV spot, but the cumulative message is that all politicians are scoundrels, and that the whole affair is so much show biz.
Those who would privilege free speech over democratic elections worry that a regulated campaign finance regime would spill over into other constraints on speech; and that if Buckley were modified, other landmark free speech rulings would be at risk. The first issue turns entirely on the particulars, of which more in a moment.
The second concern, I think, places far too little faith in the courts, and views the role of precedent too mechanically. For example, one can indeed show links, as our colleague Alan Morrison does elsewhere in this issue ["Watch What You Wish For"], between the Buckley ruling and New York Times v. Sullivan. But the Times decision, which set a high hurdle for libel suits against public figures, has proved its worth and stands on its own free speech logic. It has safeguarded robust public debate from the threat of financial harassment of publishers. Indeed, one can read Times v. Sullivan as a victory for public speech over private money. It is inconceivable to me that the Court would read a greater concern by Congress for keeping money from ruining politics as a reason to overturn Times v. Sullivan.
Mercifully, few parties to this debate are proposing to repeal Buckley via constitutional amendment. That would truly be a gag reflex. But, short of tampering with the First Amendment, there is good reason to believe that if Congress revisited the issue of money and politics, the Court would revisit Buckley. The Court, surely, cannot be oblivious to the practical shredding of its careful distinction of two decades ago between constitutionally protected speech and legitimate constraints on campaign contributions. The Supreme Court, as Mr. Dooley presciently observed, follows the election results. If the Court has been following recent elections, it must have noticed that they are money derbies.
The first fallacy to avoid is the assumption that regulated speech cannot be free speech. The courts have long allowed differential treatment of libel, pornography, commercial speech, and broadcast speech. They have recognized that regulation often enhances robust speech, as in the case of the FCC's Fairness and Equal Time doctrines. The courts have upheld regulations requiring newspapers to clearly differentiate editorial matter from paid ads, precisely to keep commercialism from polluting a free press. They have upheld the 1907 Tillman Act, a Progressive Era response to the first wave of campaign corruption, prohibiting corporations from making campaign contributions.
Indeed, the Supreme Court itself strictly limits the duration and form of oral argument, and gives equal time to each side. This is regulated speech par excellence, but it is regulation precisely in the interest of fair and vigorous debate. Any deliberative body that adopts rules of order is regulating speech—precisely so that one side not drown out the other.
In a classic 1949 case, Kovaks v. Cooper, the Supreme Court held that a community could legitimately regulate a union sound truck blaring a political message, because the truck was too loud and too relentless. Your right to speak, said the Court, doesn't include a right to drown out the opposition, or to annoy the peace of your neighbors. By analogy, the current system of campaign finance allows the candidate with the money to buy the loudest sound truck to drown out competitors. Reasonable regulation of speech, if it doesn't regulate content, can enhance free expression.
With the exception of those who (unwisely) would alter the First Amendment, campaign finance reformers divide into two camps. The first camp views Buckley as a constitutionally prudent and politically insuperable obstacle to limits on campaign spending. They offer a variety of voluntary systems, the most far-reaching of which is the Maine Clean Money Option. Under the Maine plan, approved by referendum last year, candidates who agree to voluntary limits get public finding. If an opposing candidate refuses to accept the limit, or if interest groups become his de facto contributors, then the other candidate receives compensatory public funds. A federal version of this approach has been sponsored by Senators Kerry, Glenn, Wellstone, Biden, and Leahy.
The other camp views Buckley as bad law. One could legitimately go beyond the kind of voluntary system seemingly required by Buckley, as the state of Vermont and several cities have. Vermont has enacted a system, to take effect in the year 2000, which combines public funds with mandatory expenditure limits. Remarkably enough, the city of Albuquerque has enforced an ordinance capping campaign expenditures, since 1974. It was only in the past year that a mayoral candidate challenged it as inconsistent with Buckley and the First Amendment. Cincinnati has a similar local law.
Since something like 60 percent of campaign spending pays directly or indirectly for television, this is the other place where regulation can keep one side from hogging the sound truck. Curtis Gans has long advocated regulation providing free TV time, and prohibiting "production values." Candidates would be limited to talking-head commercials. This is, certainly, regulated speech, just as parliamentary procedure is regulated speech—both are designed to enhance free debate.
Another fallacy is the view that the cure to financial abuses is simply "more speech." It is sometimes argued that challengers need to raise as much money as they can to dislodge incumbents, and that direct regulation of campaign spending would be an "incumbents protection act." But it is the present system that advantages incumbents, who regularly outspend challengers. A system that gave both candidates equal resources and prohibited private supplements would level the playing field, in the same way that equal time in debates does, and would give challengers a fairer hearing. It would also get rid of the inherent conflict of interest in special-interest fundraising by incumbents who are, after all, also lawmakers.
Congress could go beyond the Maine approach, and enact mandatory spending limits, as well as clarify the difference between constitutionally protected issue advocacy and de facto campaign contributions. As Robert Dreyfuss recounts ["Harder than Soft Money"] the Federal Election Commission regularly gets overruled in court when it seeks to refine and enforce this distinction. But many constitutional scholars believe that if Congress acted and carefully specified its rationale, the FEC would be on much stronger ground and the Supreme Court would be more likely to uphold a tighter distinction between issue advocacy and disguised campaign contributions.
Issue advertising that is really disguised campaign financing is a bit like Justice Potter Stewart's famous definition of pornography: You know it when you see it. A 1997 study by the Annenberg Public Policy Center found that 87 percent of issue ads in the 1996 campaign mentioned a candidate by name and were effectively indistinguishable from ads that used such phrases as "vote for" or "vote against" and thus met the Supreme Court's express advocacy test. The FEC's proposed clarification and the McCain-Feingold "reasonable person" rule are commonsensical.
Even if Congress doesn't act, the Supreme Court will likely revisit Buckley, as challenges to the Albuquerque, Cincinnati, and Vermont and Maine laws work their way through the courts. Twenty-four state attorneys general are joining in an amicus brief with the National Voting Rights Institute, defending the Cincinnati restrictions on campaign spending. The states and cities are true laboratories of democracy here. Tighter state and local regulation aimed at enhancing clean and fair elections will surely fare better in court if Congress acts. But it may take a lot more grassroots reformism to force Congress's hand.
The largely bogus scandal afflicting the Clinton administration is testament to the bankruptcy of the present campaign finance system. The special provision allowing unlimited fundraising for "party-building" gradually mutated into the soft-money loophole. For at least our elections, both parties have raised soft money clearly intended to help their presidential candidates. The New York Times, preposterously, editorializes that Clinton's taped remarks to donors explaining how contributions to the party will help his candidacy are proof of violations of law ("Bill Clinton's Smoking Tape," October 19, 1997). The Times editorial page editor, Howell Raines, is right to express exasperation with the Clinton presidency—but not for this particular flaw. Parties exist to win elections. That soft money helps the party's candidates is an open secret. Congress's intent in 1974 was to equalize the financing of major candidates, and to prevent the conflicts of interest that occur when candidates are in hock to special-interest money. This wise intent should have been honored by the courts. The three presidential elections conducted before the soft-money loophole was exploited were no less vigorous in their free debates.
We need to view the current electoral regime in its entirety, as one that privileges money over robust public debate and clean, fair elections. It's time to revisit the 1974 FECA legislation, and the 1976 Buckley decision, both of which have been shredded. If anything is constraining free speech and free elections today, it is the ability of money to hog the available microphones and scare away the voters. In this case, paradoxically, regulated speech is necessary to liberate speech—and to rescue democracy.