Who Speaks for the Rich?

Unfree Speech: The Folly of Campaign Finance Reform By Bradley A. Smith. Princeton University Press, 286 pages, $26.95.

Money Talks: Speech, Economic Power, and the Values of Democracy By Martin H. Redish. New York University Press, 319 pages, $35.00.

It's a shame that the debate over campaign finance
reform as played out in the mainstream media is so shallow and so dull. While a
distant clamor occasionally arises from Washington about such proposed reforms as
the McCain-Feingold bill, the truly interesting questions about money, politics,
and free speech go unaddressed and undebated by the American public. Is the act
of spending or donating money a kind of speech? Does money talk, or is it, as one
U.S. Supreme Court justice argued not long ago, just another form of property,
subject to government regulation? Should corporations be entitled to full rights
of free speech? If so, how is it that tobacco companies can be banned from
advertising their (entirely legal) products on television? If not, why couldn't
we prevent the Enron energy company from bankrolling the man their honchos wanted
to see in the White House? And what about candidates not backed by prominent
business executives? Should they be entitled to taxpayer-supported funding so
that they, too, can afford to run for office? Should the government require
broadcasters to make free airtime available to qualified candidates? Or, as some
argue, does the First Amendment stand in the way of governmental attempts to even
the odds between wealthy speakers and less wealthy ones? If so, a startling
question comes to the fore: Does the First Amendment undermine democracy?

That's a question that ought to be mulled over by every citizen who is
awake enough to appreciate the benefits of living in a nation founded on
principles of liberty and equality.

What does it mean to say that "Congress shall make no law abridging the
freedom of speech, or of the press?" Until we think clearly about that, we will
be hard-pressed to figure out whether McCain-Feingold is good legislation--or,
indeed, whether anything meaningful can be done about the influence of organized
money over the political system.

As things stand, it seems the only ones grappling with the fundamental
questions about money, politics, and speech are law professors. In recent years,
some of them on the left have advanced bold challenges to traditional First
Amendment theory, arguing that a healthy democratic system requires some
government regulation of campaign-related speech. In fact, the question of
whether the First Amendment "undermines democracy" was posed, in just those
terms, by University of Chicago legal theorist Cass Sunstein in his 1993 book
Democracy and the Problem of Free Speech.

The debate (mostly aired in law review articles) gathered force in the 1980s
and 1990s as Watergate-era reforms became unsatisfactory in the eyes of liberals
and conservatives alike. With the publication of Bradley A. Smith's Unfree
Speech
this spring, conservatives had, according to an endorsement by Daniel
Lowenstein of the University of California at Los Angeles, their first
book-length articulation of the case against campaign finance regulation. With the
publication of Martin H. Redish's Money Talks this fall, they now have
another. Smith's thinking is noteworthy, at least, because he is one of the
nation's top campaign regulators, appointed by President Bill Clinton last year
to the Federal Election Commission. (He also has been a professor of law at
Capital University in Columbus, Ohio.) Redish, a law professor at Northwestern
University, has been writing about free-speech issues since the 1970s, with an
emphasis on the rights of commercial and economic interests.

Smith comes out with guns a-blazin'. The Federal Election
Campaign Act of 1971, as amended in 1974, which is the law he is now charged with
enforcing, is "one of the most radical laws ever passed in the United States," he
says. For the first time in U.S. history, he goes on, "Congress had passed a law
requiring citizens to register with the government in order to criticize its
office holders." He cites a 1972 case in which the Justice Department moved
against a committee for the impeachment of President Richard Nixon on the grounds
that the group had spent money that could affect the 1972 election but had not
registered as a campaign-related political organization. As it turned out, he
notes much later in the book, a court ruled that the federal election law could
not be used against nonpartisan groups engaged in political speech; but to Smith,
the danger is clear and present.

"Something has gone wrong with the way in which we think about
political campaigns," says Smith. In his historical overview, he traces the
beginning of our wrong thinking to 1907, with the passage of the Tillman Act,
which banned direct political contributions by banks and corporations. But this
and other Progressive Era reforms turned out to be poorly enforced. The real
trouble didn't start until 1971, when Congress appeared to accept widespread
public concerns that wealthy interests had too much influence over politics and
that the inevitable result of so much money in politics was corruption in
government.

The problem, as Smith sees it, is that "almost everything the American people
know, or think they know, about campaign financing is wrong." Is too much money
spent on campaigns and elections? Not really. Smith estimates total spending for
local, state, and federal elections in the 1996-1998 cycle to be between $1.5
billion and $2 billion. Even if the tally for the cycle ending with the 2000
elections were to reach $3 billion, that still amounts only to about $15 per
eligible voter. All this spending, Smith argues, results in a better-informed
electorate; logically then, he says, decreased spending would lead to less
information to voters. The goal of those who want to improve politics "should be
to increase spending."

At the same time, ordinary Americans have proven unwilling to make enough
small contributions to finance expensive mass-media campaigns. So it's natural
that candidates turn to wealthy interests. Does this lead to unfair elections,
unseemly trade-offs, and even occasional corruption? No. For one thing, higher
spending does not always result in electoral victory. Money is an important
factor, but only one of many. Nor can it be assumed that legislators are
"corrupted" by large-scale fundraising. "What reformers mean by 'corruption' is
that legislators react to the wishes of constituents; or what, in other
circumstances, might be called 'responsiveness,'" says Smith. Occasionally we've
seen such things as the Keating Five scandal, in which legislators appeared to be
giving savings-and-loan moguls preferential treatment, but what made that a
scandal, Smith says, is that "it was not typical."

Such arguments are standard-issue apologia from a conservative who sees in
current politics a widespread "prejudice against money." The case, in fact,
becomes more amusing as it proceeds: Smith works himself into an argument that
existing campaign finance laws hurt the poor because the law has limited the
amount that wealthy individuals can contribute. You see, it is a small base of
wealthy donors that has traditionally supported candidates who advocate for the
poor and the working class. "But contribution limits destroy the ability of
wealthy sympathizers such as Stewart Mott to finance these efforts," Smith
contends. With Mott thus shackled, he continues: "Campaign regulation has
probably served to strengthen the political power of the wealthy and upper middle
class at the expense of the working class."

There is a scattershot style here. Smith is willing to use any and all
negative thoughts about campaign finance laws that pop into his head. Though he
affects the tone of a reasoned law professor, logical inconsistencies begin to
pile up even before the halfway point in the book. When he moves into a
discussion of government financing of candidates, the tendentiousness begins to
seem a little silly. Recall that Smith has already told us that a mere $15 per
eligible voter is not too much to spend on something as important as elections,
and that Americans tend not to donate enough in small contributions, and that the
goal "should be to increase spending." One might see these as good arguments for
a system of publicly financed elections. But Smith says that adequate funding
would be beyond the government's means. "The problem is that we are not inclined
to provide government financing at such lavish levels," he writes, without
clarifying who he means by "we." Furthermore, there is a point of diminishing
returns at which "additional spending would not be expected to translate into
many votes." So maybe we shouldn't spend more. But maybe we should: In his
penultimate chapter he reverses field again, admitting that concerns about public
financing costing too much are "probably exaggerated in public debate" since the
money spent on elections is "a mere drop in the bucket where the federal budget
is concerned."

And so it goes. Having earlier reminded us that the best-funded candidates
don't always win, he later worries that with incumbents developing large "war
chests," challengers who take public funds and abide by a spending cap would be
at a disadvantage. Having from the get-go dismissed concerns about unfairness and
corruption, Smith surprises us later by stating that government financing is
futile because it "will not solve either the equality or the corruption problems
that beleaguer the system."

It's possible that Smith's apparent acknowledgment of problems
with equality and corruption was a momentary lapse that careful editing would
have excised. (At another point, Smith states nonsensically that "the alleged
shortcomings of an unregulated private system are well documented.") Throughout
the book, the emphasis remains on the denial of any problems other than
government interference with political speech. Of course, one shouldn't expect
serious ideas about regulation from someone who denies the need for regulation.

The one part of Smith's brief worth some consideration by liberals is
his challenge to democratic theorists on the left when it comes to First
Amendment thinking. He cites the work of Cass Sunstein, as well as Owen Fiss at
Yale University (author of The Irony of Free Speech) and New York
University's Burt Neuborne, who has argued for "a democracy-centered reading of
the First Amendment." It's not that Smith gives a fair-minded presentation of
these arguments; nor does he have anything original to say about them. His view
is the same as the one that prevailed in the Supreme Court's Buckley v. Valeo
case in 1976--that any governmental attempts to enhance one speaker at the
expense of another is, as the Court famously put it, "wholly foreign to the First
Amendment." But Smith believes that the Supremes erred when they ruled that
candidate spending could not be limited but donor contributions could be. "A
'democracy-centered' reading of the Constitution demands the abolition of all
restraints on political contributions and spending," he argues.

This is a retreat into First Amendment absolutism; indeed, by the end of the
book Smith almost talks himself out of the idea that even the government
requirement for disclosure of candidate spending is desirable. Yet this
disagreement about the meaning of the First Amendment is precisely where an
important conflict lies--not just between left and right, but between
ACLU-style liberals and those progessives who envision a fairer, more vital
democracy. Sunstein has argued that an insistence on a strict, literal reading of
the First Amendment is ";basically unhelpful, even fraudulent." He makes a worthy
case for a "Madisonian" view--that if we are devoted to popular sovereignty, to
active self-government, we have to create a system that allows true deliberation
and freer expression than we have now. Conservatives (and civil libertarians)
tend to worry about poll results that occasionally show public willingness to
restrict free-speech rights. Yet this worry is surely misplaced. The strength and
simplicity of the free-speech-for-all principle, the true-blue Americanism of it,
will always be easier to argue among average citizens than will be Sunstein's
nuanced and idealistic Madisonianism, with its vision of a new regulatory route
to a better politics. Smith's desire for an unregulated free-for-all--the more
money spent the better! unshackle the rich and powerful!--would surely strike
most Americans as kooky. And yet when he declares, "One power that the
Constitution, through the First Amendment, specifically denies to the government
is the power to regulate political speech," who in the national town meeting
wants to stand up and say it's time we put that kind of rhetoric behind us?

Not Martin Redish. In Money Talks, Redish exhibits the kind of firm civil
libertarianism that leads ACLU lawyers to defend the rights of neo-Nazis,
except that Redish's "despised minority" is the economically powerful. This is a
subject Redish has been writing and thinking about for more than 30 years. Can
government restrict commercial speech? Shouldn't the wealthy be as thoroughly
protected from interference with expression as are roving punks on the lunatic
fringe? The central argument of this book is that "restrictions on the expression
of the economically powerful or the use of money for expression threaten
fundamental First Amendment values."

Redish's sweep encompasses more than campaign finance laws. He discusses
concerns ranging from corporate speech to government funding of the arts. Though
his book is more intellectually rigorous than Smith's, and more honest in
treating opposing ideas, he reveals precisely where on the ideological spectrum
he's coming from with such statements as "the restriction of tobacco advertising
in reality represents the most ominous form of thought suppression" and "over the
last two-thirds of the twentieth century, the political power exercised by
organized labor has been at least as great as that of the corporate giants."

In great detail, Redish constructs an argument against "the continued
second-class status of commercial speech," suggesting at one point that even
false advertising should not be subject to government restriction. He then
extends the reasoning to non-product-related speech by businesses. The Supreme
Court in 1978 "unequivocally" concluded that the First Amendment protects
political speech by corporations, he says, but later decisions have left that
protection "in a state of confusion." (For instance, the Court upheld a Michigan
law prohibiting direct corporate expenditures that support or oppose political
candidates.)

Redish probes the rationales of scholars who believe that corporations should
not have full rights to free speech. It's a useful thought exercise, involving
questions that most Americans are nowhere close to forming a judgment on, since
they are seldom publicly discussed. Would we deny corporate-speech rights because
corporations are not people? Because they are profit-maximizing entities with no
ability to enjoy democratic liberties? Because they have become too powerful and
tend to drown out other interests? Redish rejects all such thinking. In doing so,
he attempts to build a case that corporate speech is, on the whole, beneficial to
democracy. For one thing, corporations are run by citizens and therefore can
indirectly be tied up with their political goals. As well, corporations "serve a
vital role in checking potential governmental excesses." (But what about
government becoming too effectively "checked"?) In the political arena, corporate
funding serves to bring more information to voters--and this he presumes to be an
unmitigated good. Overall, he asserts, "the entire history of the American
corporation is tied to the democratic goals of personal self-development and
advancement."

The grandiosity of such a statement would bring hoots not just in union halls
across America but at most middle-class kitchen tables. Yet when Redish resorts
to the traditional First Amendment defenses, he's on firmer ground: "Once society
grants to the government the power to prevent listeners from receiving expression
based on the government's determination of the public good, there is no logical
stopping point." He does grant that there are, in fact, "invidious inequalities"
affecting American democracy, but he contends that those who seek remedies must
find them in governmental attempts to redistribute wealth across the board, not by
tampering with the "expressive marketplace." When he takes up campaign finance
issues, Redish insists that government should refrain from trying to level up or
level down: "Limiting the ability of those with economic power to spend or
contribute to political campaigns in no way expands the ability of those who lack
such power to communicate their political message."

In the interests of fair warning, it must be said: As literary efforts,
these are both god-awful books. Smith is not an interesting thinker; Redish is
not an interesting writer. Smith is the kind of ideologue whose book would be
seen as brilliant by the likes of Rush Limbaugh. It's full of ammo against
pro-government liberals! Yet Redish, for all his scholarly sophistication (1,147
footnotes), in the end comes off as the same kind of fundamentalist. All ideas
are reduced to one: Government must not restrict or regulate speech. Incredibly,
he discusses government subsidies of speech toward the end of his book and
doesn't get around to taking up the question of publicly financed elections--a
fact that seriously diminishes the value of his work.

In their presentations of the benign role played by powerful economic
interests in the democratic arena, both authors represent the libertarian right.
Corporate power is of no concern; government power is the ultimate evil. Such a
perspective involves turning a blind eye to all the ways in which governmental
rules have favored corporate interests and the wealthy. Redish states outright
that "no affirmative governmental action has directly caused the disparity in
expressive power," as if he hadn't enumerated scores of court rulings that have
protected corporate rights of speech and action, as if government had not in fact
created the very system of granting corporate charters and encouraging giantism
and large disparities in wealth.

The free-speech concerns of absolutists have to be considered seriously. But
books that make passionate arguments about democratic theory-- denying all along
that money power has skewed politics against the public interest--try one's
patience. What would the political system look like if the visions of Smith and
Redish prevailed? One dominated at every turn, much more so than today, by large
and powerful interests. How could this have been the intent of those who wrote
the Constitution?

The authors counsel nothing but fear of oppressive government. The
problem with living in the shadow of that fear is that it keeps us from creating
the kind of government that is worth participating in. It's useless to
fantasize, as Smith and Redish do, about a day when government will withdraw all
rules that affect spending and speech. It's by changing them wisely, respecting
the core principles of the First Amendment, that we have a chance to restore
democratic government.

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