Campaign reformers have a new arrow in their quiver, and it is aimed at the heart of presidential campaigns like those of Ross Perot and Steve Forbes. Senators Bill Bradley, Arlen Specter, and Fritz Hollings are proposing a constitutional amendment which would void the Supreme Court's decision in 1976, Buckley vs. Valeo. In that decision, the Court voided provisions Congress had passed limiting independent expenditures on behalf of candidates by PACs, where such expenditures were NOT direct contributions to the candidate in question, and voided provisions Congress had passed limiting personal expenditures by candidates on behalf of themselves. Both provisions were voided on the grounds that they constituted unacceptable abridgement of constitutional guarantees of free speech.
I must say my first reaction to Bradley, Specter, and Hollings' legislative campaign was that of celebration. For years, I have agreed with those who say not only that we must outlaw PAC contributions, but that we must place limitations on the size of political contributions either to other candidates, or to one's own candidacy. However, I am always concerned whenever the red flag is raised with respect to First Amendment considerations. We have seen too many instances recently of irresponsible demagogues trying to tamper with the Constitution for their own narrow agenda. Demagogues have threatened to tamper with our right to free speech by adding an insidious exception where flag-burning is concerned. Demagogues have threatened to tamper with our protection against search and seizure, with its implicit right to privacy, where reproductive choice is concerned. Sens. Bradley, Specter, and Hollings may not be walking into an arena where there are two strikes against them, but they certainly shoulder a heavy burden of proof that this is what our country needs at this time.
I decided to investigate these competing claims of political reform and freedom of speech by examining the Supreme Court's decision itself. It took some digging (apologies for the undue delay in publishing today's Musings), but I finally collected enough relevant quotes to form tentative conclusions with respect to the merits of the two sides, at least as articulated by the Court.
Those conclusions are not positive -- for either side on the Court.
First, the majority opinion: It was a mishmash of contradictory conclusions, stitched together with scissors and paste. On the one hand, it permitted PERSONAL CONTRIBUTION LIMITATIONS ON BEHALF OF OTHER CANDIDATES, but prohibited EXPENDITURE LIMITATIONS altogether. On what basis? None that I could see. It simply took opposite sides on the public interest vs. liberty question. Here's a quote with respect to its admission of CONTRIBUTION LIMITATIONS as constitutionally valid:
"Congress could legitimately conclude that the avoidance of the appearance of improper influence "is...critical...if confidence in the system of representative government is not to be eroded to a disastrous extent."...We find that...the weighty interests served by restricting the size of financial contributions to political candidates are sufficient to justify the limited effect upon First Amendment freedoms caused by the $1000 contributions ceiling."
In other words, they have clearly concluded that the public interest outweighs the interest of preserving constitutional freedoms in this instance. Yet, unaccountably, they come to precisely the opposite conclusion with respect to NON-CONTRIBUTORY INDEPENDENT EXPENDITURES and the CANDIDATE'S PERSONAL EXPENDITURES:
"The ancillary interest in equalizing the relative financial resources of candidates competing for elective office, therefore, provides the sole relevant rationale for [the act's] expenditure ceiling. That interest is clearly not sufficient to justify the provision's infringement of fundamental First Amendment rights."
In other words, First Amendment considerations override the public interest, except when they don't! Well, no help there in resolving my dilemma. So I took a look at the dissenting viewpoints.
Justice Marshall would have voided none of the act's provisions. He stressed heavily the public interest:
"The concern that candidacy for public office not become, or appear to become, the exclusive province of the wealthy assumes heightened significance..."
At least he shows the consistency and logic to realize that you can't have it both ways:
"In view of [the act's] limitations on contributions, then, [the expenditure limitation] emerges...as a provision providing some symmetry to a regulatory scheme that otherwise enhances the natural advantage of the wealthy...I think it clear that the goal [of equalizing access] justifies [the expenditure] limits when they are considered in conjunction with the [contribution limits]."
But then he conspicuously refuses to pen one comma responding to the First Amendment considerations. It's as if he feels such concerns scarce worthy of note!
Justice Burger's dissent is of no help either. He comes to the OPPOSITE conclusion, that First Amendment considerations must void BOTH limitations, the one on CONTRIBUTIONS and the one on EXPENDITURES. As with Marshall, at least one is afforded consistency:
"The contribution limitations infringe on First Amendment liberties and suffer from the same infirmities that the Court correctly sees in the expenditure ceilings."
But, in a perverse mirror of the Marshall dissent, he apparently, if the New York Times excerpt from which I got this quote is to be believed, wrote not one paragraph with respect to the public interest of restoring faith in our democratic and political process.
There is one relevant dissent which, at least glancingly, deals with BOTH considerations, that of Justice White. Like Marshall, he would void no provisions in the act at all:
"There is no sound basis for invalidating the expenditure limitations...Expenditure ceilings reinforce the contribution limits and help eradicate the hazard of corruption...It is...important to restore and maintain public confidence in Federal elections. It is critical to obviate or dispel the impression that Federal elections are purely and simply a function of money, that Federal offices are bought and sold or that political races are reserved for those who have the facility -- and the stomach -- for doing whatever it takes to bring together those interests, groups, and individuals that can raise or contribute large fortunes in order to prevail at the polls."
And what of the constitutional concerns with respect to the First Amendment? Justice White writes:
"The Court nevertheless holds that a candidate has a constitutional right to spend unlimited amounts of money, mostly that of other people, in order to be elected. The holding perhaps is not that Federal candidates have the constitutional right to purchase their election, but many will so interpret the Court's conclusion in this case. I cannot join the Court in this respect."
In other words, never mind whether or not the candidate really DOES have the constitutional right to spend unlimited amounts. What matters is that the Court's decision LOOKS BAD, it's BAD P.R.! He can't support a decision that could be perceived as endorsing the 'purchasing' of an election. Talk about a profile in courage.
What all this means is that Buckley vs. Valeo was scarcely the Court's finest hour. The upshot therefore is that we are forced to fall back on the Court's majority decision, for it at least grudgingly admits the legitimacy of BOTH concerns, the public interest and the protection of constitutional guarantees of free speech. The fact, however, that it comes to completely opposite conclusions with respect to the two issues of contributions and expenditures means that we will search in vain for a definitive conclusion on this battle between liberty and the public good.
All of which leaves me forced to decide for myself the validity of those two competing claims, which in the end anyone would have to do in any case, I suppose. Very tough, but I would have to say, after slogging my way through this sloppy disaster of a decision, that if one buys the idea that the public interest CAN override constitutional considerations, where the constitutional infraction is very minor, then the limitation on expenditures is certainly admissible as acceptable law, and therefore is admissible as an amendment to our constitution. Our democracy is threatening to founder on the rocky shores of public mistrust and apathy. SOMETHING must be done, and Senators Bradley, Specter, and Hollings are to be commended for having brought something new and constructive to that discussion.
On a personal note, I must say I am very gratified to see Senator Specter join this crusade. You see, with regard to the burgeoning centrist movement in this country, many have remarked that an apparent split has developed between what I will term sensible centrism and radical centrism. Sensible centrism appears represented by figures like Colin Powell. Radical centrism appears represented by figures like Ross Perot. And one of the main failings of the sensible center, in my view, is its failure to come to grips with this very issue, campaign reform. It is heartening to see a sensible centrist like Specter recognize the cancer eating at the heart of our democracy, and joining the fray on our behalf. My respects, Senator.
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