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 financereform as played out in the mainstream media is so shallow and so dull. While adistant clamor occasionally arises from Washington about such proposed reforms asthe McCain-Feingold bill, the truly interesting questions about money, politics,and free speech go unaddressed and undebated by the American public. Is the actof spending or donating money a kind of speech? Does money talk, or is it, as oneU.S. Supreme Court justice argued not long ago, just another form of property,subject to government regulation? Should corporations be entitled to full rightsof 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'twe prevent the Enron energy company from bankrolling the man their honchos wantedto see in the White House? And what about candidates not backed by prominentbusiness executives? Should they be entitled to taxpayer-supported funding sothat they, too, can afford to run for office? Should the government requirebroadcasters to make free airtime available to qualified candidates? Or, as someargue, does the First Amendment stand in the way of governmental attempts to eventhe odds between wealthy speakers and less wealthy ones? If so, a startlingquestion comes to the fore: Does the First Amendment undermine democracy?
That's a question that ought to be mulled over by every citizen who isawake enough to appreciate the benefits of living in a nation founded onprinciples of liberty and equality.
What does it mean to say that "Congress shall make no law abridging thefreedom of speech, or of the press?" Until we think clearly about that, we willbe hard-pressed to figure out whether McCain-Feingold is good legislation--or,indeed, whether anything meaningful can be done about the influence of organizedmoney over the political system.
As things stand, it seems the only ones grappling with the fundamentalquestions about money, politics, and speech are law professors. In recent years,some of them on the left have advanced bold challenges to traditional FirstAmendment theory, arguing that a healthy democratic system requires somegovernment regulation of campaign-related speech. In fact, the question ofwhether the First Amendment "undermines democracy" was posed, in just thoseterms, by University of Chicago legal theorist Cass Sunstein in his 1993 bookDemocracy and the Problem of Free Speech.
The debate (mostly aired in law review articles) gathered force in the 1980sand 1990s as Watergate-era reforms became unsatisfactory in the eyes of liberalsand conservatives alike. With the publication of Bradley A. Smith's UnfreeSpeech 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 ElectionCampaign Act of 1971, as amended in 1974, which is the law he is now charged withenforcing, is "one of the most radical laws ever passed in the United States," hesays. For the first time in U.S. history, he goes on, "Congress had passed a lawrequiring citizens to register with the government in order to criticize itsoffice holders." He cites a 1972 case in which the Justice Department movedagainst a committee for the impeachment of President Richard Nixon on the groundsthat the group had spent money that could affect the 1972 election but had notregistered as a campaign-related political organization. As it turned out, henotes much later in the book, a court ruled that the federal election law couldnot 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 aboutpolitical campaigns," says Smith. In his historical overview, he traces thebeginning of our wrong thinking to 1907, with the passage of the Tillman Act,which banned direct political contributions by banks and corporations. But thisand other Progressive Era reforms turned out to be poorly enforced. The realtrouble didn't start until 1971, when Congress appeared to accept widespreadpublic concerns that wealthy interests had too much influence over politics andthat the inevitable result of so much money in politics was corruption ingovernment.
The problem, as Smith sees it, is that "almost everything the American peopleknow, or think they know, about campaign financing is wrong." Is too much moneyspent on campaigns and elections? Not really. Smith estimates total spending forlocal, state, and federal elections in the 1996-1998 cycle to be between $1.5billion and $2 billion. Even if the tally for the cycle ending with the 2000elections were to reach $3 billion, that still amounts only to about $15 pereligible voter. All this spending, Smith argues, results in a better-informedelectorate; logically then, he says, decreased spending would lead to lessinformation to voters. The goal of those who want to improve politics "should beto increase spending."
At the same time, ordinary Americans have proven unwilling to make enoughsmall contributions to finance expensive mass-media campaigns. So it's naturalthat candidates turn to wealthy interests. Does this lead to unfair elections,unseemly trade-offs, and even occasional corruption? No. For one thing, higherspending does not always result in electoral victory. Money is an importantfactor, but only one of many. Nor can it be assumed that legislators are"corrupted" by large-scale fundraising. "What reformers mean by 'corruption' isthat legislators react to the wishes of constituents; or what, in othercircumstances, might be called 'responsiveness,'" says Smith. Occasionally we'veseen such things as the Keating Five scandal, in which legislators appeared to begiving savings-and-loan moguls preferential treatment, but what made that ascandal, Smith says, is that "it was not typical."
Such arguments are standard-issue apologia from a conservative who sees incurrent politics a widespread "prejudice against money." The case, in fact,becomes more amusing as it proceeds: Smith works himself into an argument thatexisting campaign finance laws hurt the poor because the law has limited theamount that wealthy individuals can contribute. You see, it is a small base ofwealthy donors that has traditionally supported candidates who advocate for thepoor and the working class. "But contribution limits destroy the ability ofwealthy sympathizers such as Stewart Mott to finance these efforts," Smithcontends. With Mott thus shackled, he continues: "Campaign regulation hasprobably served to strengthen the political power of the wealthy and upper middleclass at the expense of the working class."
There is a scattershot style here. Smith is willing to use any and allnegative thoughts about campaign finance laws that pop into his head. Though heaffects the tone of a reasoned law professor, logical inconsistencies begin topile up even before the halfway point in the book. When he moves into adiscussion of government financing of candidates, the tendentiousness begins toseem a little silly. Recall that Smith has already told us that a mere $15 pereligible 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 thegoal "should be to increase spending." One might see these as good arguments fora system of publicly financed elections. But Smith says that adequate fundingwould be beyond the government's means. "The problem is that we are not inclinedto provide government financing at such lavish levels," he writes, withoutclarifying who he means by "we." Furthermore, there is a point of diminishingreturns at which "additional spending would not be expected to translate intomany votes." So maybe we shouldn't spend more. But maybe we should: In hispenultimate chapter he reverses field again, admitting that concerns about publicfinancing costing too much are "probably exaggerated in public debate" since themoney spent on elections is "a mere drop in the bucket where the federal budgetis concerned."
And so it goes. Having earlier reminded us that the best-funded candidatesdon't always win, he later worries that with incumbents developing large "warchests," challengers who take public funds and abide by a spending cap would beat a disadvantage. Having from the get-go dismissed concerns about unfairness andcorruption, Smith surprises us later by stating that government financing isfutile because it "will not solve either the equality or the corruption problemsthat beleaguer the system."
It's possible that Smith's apparent acknowledgment of problemswith equality and corruption was a momentary lapse that careful editing wouldhave excised. (At another point, Smith states nonsensically that "the allegedshortcomings of an unregulated private system are well documented.") Throughoutthe book, the emphasis remains on the denial of any problems other than government interference with political speech. Of course, one shouldn't expectserious ideas about regulation from someone who denies the need for regulation.
The one part of Smith's brief worth some consideration by liberals ishis challenge to democratic theorists on the left when it comes to FirstAmendment thinking. He cites the work of Cass Sunstein, as well as Owen Fiss atYale 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 thebook Smith almost talks himself out of the idea that even the governmentrequirement for disclosure of candidate spending is desirable. Yet thisdisagreement about the meaning of the First Amendment is precisely where animportant conflict lies--not just between left and right, but betweenACLU-style liberals and those progessives who envision a fairer, more vitaldemocracy. Sunstein has argued that an insistence on a strict, literal reading ofthe First Amendment is ";basically unhelpful, even fraudulent." He makes a worthycase for a "Madisonian" view--that if we are devoted to popular sovereignty, toactive self-government, we have to create a system that allows true deliberationand freer expression than we have now. Conservatives (and civil libertarians)tend to worry about poll results that occasionally show public willingness torestrict free-speech rights. Yet this worry is surely misplaced. The strength andsimplicity 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'snuanced and idealistic Madisonianism, with its vision of a new regulatory routeto a better politics. Smith's desire for an unregulated free-for-all--the moremoney spent the better! unshackle the rich and powerful!--would surely strikemost Americans as kooky. And yet when he declares, "One power that theConstitution, through the First Amendment, specifically denies to the governmentis the power to regulate political speech," who in the national town meetingwants 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 discussesconcerns ranging from corporate speech to government funding of the arts. Thoughhis book is more intellectually rigorous than Smith's, and more honest intreating opposing ideas, he reveals precisely where on the ideological spectrumhe's coming from with such statements as "the restriction of tobacco advertisingin reality represents the most ominous form of thought suppression" and "over thelast 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 continuedsecond-class status of commercial speech," suggesting at one point that evenfalse advertising should not be subject to government restriction. He thenextends the reasoning to non-product-related speech by businesses. The SupremeCourt in 1978 "unequivocally" concluded that the First Amendment protectspolitical speech by corporations, he says, but later decisions have left thatprotection "in a state of confusion." (For instance, the Court upheld a Michiganlaw prohibiting direct corporate expenditures that support or oppose politicalcandidates.)
Redish probes the rationales of scholars who believe that corporations shouldnot have full rights to free speech. It's a useful thought exercise, involvingquestions that most Americans are nowhere close to forming a judgment on, sincethey are seldom publicly discussed. Would we deny corporate-speech rights becausecorporations are not people? Because they are profit-maximizing entities with noability to enjoy democratic liberties? Because they have become too powerful andtend 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 todemocracy. For one thing, corporations are run by citizens and therefore canindirectly be tied up with their political goals. As well, corporations "serve avital role in checking potential governmental excesses." (But what aboutgovernment becoming too effectively "checked"?) In the political arena, corporatefunding serves to bring more information to voters--and this he presumes to be anunmitigated good. Overall, he asserts, "the entire history of the Americancorporation is tied to the democratic goals of personal self-development andadvancement."
The grandiosity of such a statement would bring hoots not just in union hallsacross America but at most middle-class kitchen tables. Yet when Redish resortsto the traditional First Amendment defenses, he's on firmer ground: "Once societygrants to the government the power to prevent listeners from receiving expressionbased on the government's determination of the public good, there is no logicalstopping point." He does grant that there are, in fact, "invidious inequalities"affecting American democracy, but he contends that those who seek remedies mustfind them in governmental attempts to redistribute wealth across the board, not bytampering with the "expressive marketplace." When he takes up campaign financeissues, Redish insists that government should refrain from trying to level up orlevel down: "Limiting the ability of those with economic power to spend orcontribute to political campaigns in no way expands the ability of those who lacksuch 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 isnot an interesting writer. Smith is the kind of ideologue whose book would beseen as brilliant by the likes of Rush Limbaugh. It's full of ammo againstpro-government liberals! Yet Redish, for all his scholarly sophistication (1,147footnotes), in the end comes off as the same kind of fundamentalist. All ideasare reduced to one: Government must not restrict or regulate speech. Incredibly,he discusses government subsidies of speech toward the end of his book anddoesn't get around to taking up the question of publicly financed elections--afact that seriously diminishes the value of his work.
In their presentations of the benign role played by powerful economicinterests in the democratic arena, both authors represent the libertarian right.Corporate power is of no concern; government power is the ultimate evil. Such aperspective involves turning a blind eye to all the ways in which governmentalrules have favored corporate interests and the wealthy. Redish states outrightthat "no affirmative governmental action has directly caused the disparity inexpressive power," as if he hadn't enumerated scores of court rulings that haveprotected corporate rights of speech and action, as if government had not in factcreated the very system of granting corporate charters and encouraging giantismand large disparities in wealth.
The free-speech concerns of absolutists have to be considered seriously. Butbooks that make passionate arguments about democratic theory-- denying all alongthat money power has skewed politics against the public interest--try one'spatience. What would the political system look like if the visions of Smith andRedish prevailed? One dominated at every turn, much more so than today, by largeand powerful interests. How could this have been the intent of those who wrotethe Constitution?
The authors counsel nothing but fear of oppressive government. Theproblem with living in the shadow of that fear is that it keeps us from creatingthe kind of government that is worth participating in. It's useless tofantasize, as Smith and Redish do, about a day when government will withdraw allrules that affect spending and speech. It's by changing them wisely, respectingthe core principles of the First Amendment, that we have a chance to restoredemocratic government.
