“[E]rror of opinion may be tolerated where reason is left free to combat it.” – Thomas Jefferson, First Inaugural, March 4th, 1801
If a new brand of cola were developed that was tastier than its competition, and cheaper, but it was called “Cyanide”, how many repeat customers would there be? Undoubtedly none. And Cyanide’s competitors would have every right to promote their own products as safe and drinkable, while rightly calling the competition “poison.” Nobody would flinch at such “negative” advertising.
By the same token, if a politician came out with his or her own brand of poison to sell to the American people, whether it was by promoting a tyrannical form of government, or some racist doctrine, undoubtedly the voters would catch on fast and vote for that politician’s opponent. Moreover, they would have every right to spend as much money as they like to defeat that political poison at the polls.
But not so under our new, restrictive campaign finance “reform.” Thanks to McCain-Feingold, Benito Mussolini could be on the ballot, but you’d still only be allowed to donate $2,300 to his opponent’s campaign.
In a recent Wall Street Journal editorial, “The Reformers Who Ruined Politics”, the authors note the ironic farce that is the nation’s campaign finance laws. Those “reforms” were supposed to get the Big Money out of politics. Now, there’s more money than ever. They were supposed to create an even playing field so that all candidates can compete. Now, candidates hampered by the $2,300 per individual limitation have to spend more time than ever catering to donors. And they were supposed to eliminate “undue” influence upon the electoral process. Now, independent political and issues advocacy organizations have more influence than ever.
“Irony abounds” is apparently the first law of unintended consequences. But there’s more to this story than merely the mockery of the goals of campaign finance “reform” (which are never met), or even the absurdity of “reform” advocates wanting even more restrictions. And there’s even more to it than the fact that individual donation limits substantively limit the legitimate exercise of free speech.
The Journal hits it on the head when it mocks those “good-government types who pledge allegiance to the idea that money is the root of political evil.” It is not. And that is the real story.
The Journal closes its piece by calling for “more simplicity and transparency, so office seekers can raise whatever amount they can from whomever they want so long as it is reported immediately on the Internet.” That may even seem a happy medium compared to the complex, maze-like level of regulation candidates and political organizations now need to navigate. Simplicity is certainly desirable, and even required by the First Amendment’s free speech protections.
But, if money is not the root of all political evil, then why are transparency and donor disclosure requirements even necessary? Are such disclosures even constitutional under the First Amendment’s freedom to association protections? As the Supreme Court noted in its 1958 decision, NAACP v. Alabama:
“It is hardly a novel perception that compelled disclosure of affiliation with groups engaged in advocacy may constitute as effective a restraint on freedom of association as the forms of governmental action in the cases above were thought likely to produce upon the particular constitutional rights there involved. This Court has recognized the vital relationship between freedom to associate and privacy in one’s associations [emphasis added].”
In other words, if a potential donor to a campaign knows that his or her personal information would be public information, and that causes the individual to refrain from making the donation, then that is an effective restraint upon the freedom to associate. That case stemmed from Alabama’s reporting requirements of membership rolls as was forced upon the NAACP in that state. The Court ruled in the NAACP’s favor because the reporting requirements were a form of real intimidation, which prevented the organization from expanding its membership and engaging in fundraising.
In that case, “transparency” was being used as a weapon to stifle particular associations from occurring. And so, too, today are these reporting requirements used as weapons to stifle free speech and association.
Let’s face it. Today, one could not have a “Publius” advocating a new, federal form of government. As delegates to the Constitutional Convention, The Federalist’s James Madison and Alexander Hamilton would have had to shed their anonymity under law so as to register as a campaign political action committee under section 527 of the Internal Revenue Code, its “board of directors” listed publicly, and all of its donations and expenditures similarly disclosed.
ALG News’ objection to the Journal’s approach to this issue does not end there. The piece also refers to 527 organizations – the ones that are allowed unlimited donations and expenditures – as somehow being “unsavory.” Their presence, the Journal notes – particularly the ones backed by George Soros – apparently threatens the candidacy of Republican candidate, John McCain.
Now there is hardly a thing that ALG News would find to agree with about what George Soros says. (In fact, if cyanide ever assumed human form… well you get the point.) But like Voltaire, we would fight to the death for his right to say it. He is certainly unsavory for what he says and the messages he endorses. But not, we hasten to add, for his ability – or, indeed, his right – to say it, or to fund those who say it for him.
In truth, the way to counter and defeat wealthy and/or objectionable opinions is to maximize the ability of opposing opinions to engage in the marketplace of ideas. For as Thomas Jefferson noted, the error of opinion can always be tolerated so long as reason is left free to counter it.
ALG Perspective: The unintended consequences of campaign finance “reform” are certainly ironic, and a free marketplace of ideas is certainly needed to counter the Left’s considerable political influence. But the right system for Americans is a constitutional system that does not use transparency as a weapon, does not limit speech by restricting individual donations, and does not create complex, convoluted structures that leave Americans powerless to fight the many politicians out there selling their own brands of poison.
