Campaign finance 'reform' surrendering to free speech?

Writing for the National Journal, Eliza Newlin Carney says that the days of strict government limits on how people support their preferred candidates and even what they can say about the power-hungry creatures may be limited.

But the high court's 5-4 vote in Davis v. Federal Election Commission [PDF] on June 26 could resonate broadly. Some political scientists say the ruling threatens public financing rules at the state level. Others see trouble ahead for the existing campaign finance regime now that the Supreme Court boasts a solid majority of five justices more enamored with the First Amendment than with restrictive election laws.

The Davis ruling was the third straight Supreme Court victory for pro-First Amendment conservative activists, who have mounted a series of legal challenges that have systematically chipped away at both the BCRA and the post-Watergate law known as the Federal Election Campaign Act.

The ruling came on the heels of another Supreme Court finding last year that rolled back campaign finance limits on unregulated "issue" ads that picture or name a candidate on the eve of an election. The BCRA, also known as the McCain-Feingold law, had barred corporations and unions from using treasury funds to pay for such ads. But in Federal Election Commission v. Wisconsin Right to Life [PDF], the Supreme Court rejected those limits as unconstitutional.

Carney goes on to quote Prof. Richard L. Hasen of Loyola Law School saying. "We could well be looking at a situation where the only campaign finance laws that are constitutional are disclosure laws and voluntary public financing systems."

Separately, Hasen has credited Justice Clarence Thomas as a leading influence steering the Supreme Court back toward greater respect for political free speech.

Since the beginning of his tenure on the Court, Justice Thomas has occupied one of the polar positions on the campaign-finance issue: a clear, deregulatory position. (At the other pole is Justice Stephen Breyer, whose “participatory self government” rationale would allow for greater consideration of equality in balancing First Amendment rights and government interests 1). Thomas’ steadfastness and clarity on this issue appears to have opened up space for additional justices to move toward his position on the issue. ...

Justice Thomas’ influence in this area could soon gain majority status. In WRTL, Chief Justice Roberts and Justice Alito issued an opinion that did not go quite so far as the other three deregulatory justices would go, but it still significantly cut back the reach of the McConnell opinion, thereby allowing more corporate and union election-related ads to be paid for out of treasury funds. The chief justice’s opinion reads like a Justice Thomas opinion, full of paeans to the First Amendment and the value of free political debate, unfettered by campaign-finance rules. ...

The court's pro-free-speech decision in Davis may be evidence that other justices are coming over to Thomas's relatively strong stance on the First Amendment.

In fact, many legal scholars have been closely watching (PDF) the Roberts court's new respect for the First Amendment and its growing willingness to let people express themselves without jumping through regulatory hoops and risking penalties.

That's happy news, because campaign finance "reform" has proven to favor, through its byzantine regulations, sophisticated, establishment players in the political marketplace, at the expense of grassroots activists ill-equipped to negotiate rules that can threaten people who so much as put up yard signs without proper registration or disclosure with fines.

Bradley A. Smith, the former chairman of the Federal Election Commission, has extensively documented the muzzling effects of campaign finance laws. In a July 2007 article for City Journal, he warned, "Campaign finance reform is creating an intrusive regulatory regime that’s steadily eroding Americans’ political freedoms. Making matters worse, it does little or nothing to combat corruption."

Smith documents abuses of the law, including attacks on grassroots groups and efforts (some successful) to prevent the release of politically sensitive documentaries in the months prior to elections.

Nor are such cases rare. While serving on the FEC from 2000 to 2005, I kept a file of letters from political amateurs caught in the maw of campaign finance laws. Many of these people had no lawyers; none had the least intent to corrupt any officeholder; all thought that they were fulfilling their civic duty by their involvement in campaigns.

A Texas dentist wrote: “It is 5:30 PM on Good Friday. Today, like many days previous, I have taken time away from my business and my family to respond to the Commission. . . . I am being pursued by the Commission to pay over $30,000 from my personal funds.”

A CPA who had served as a volunteer campaign treasurer, and who was facing over $7,000 in fines for improper reporting, wrote: “No job I have ever undertaken caused me more stress than this one. I was frightened and concerned every day that I would do something wrong.”

Another volunteer treasurer asked the Commission to waive its fines: “We were just honest, hard working, tax paying Americans who wanted to make a difference . . . at this point, we are so disillusioned with the [legal] difficulty of running for office that we wonder why anyone other than a professional would attempt to do so.”

A retired high school teacher wrote: “I taught, and believe, that we have the best government in the world. I was happy to be part of the process. . . . I made every attempt to comply and am now being fined $600 for a misunderstanding.” The letters flowed in—from lawyers, teachers, doctors, retirees, all facing investigations and fines for their volunteer political activity. One summed up: “I will NEVER be involved with a political campaign again.”

It's difficult to review the data without concluding that a deterrent effect on political participation is intended by at least some advocates of campaign finance restrictions. That reserves the field for savvy professionals working on behalf of well-connected candidates and causes, and pushes the messy amateurs to the fringes. There, the amateurs are limited to voting "yes" or "no" to whatever the pros put on the ballot, based on whatever information and arguments the pros let slip to the public -- or they can just give up on the whole business.

So recent decisions by the Supreme Court moving -- however incrementally -- to favor the First Amendment at the expense of phony "reform" is welcome to anybody who cares about free speech. Courting the public and suffering heckling from the cheap seats may annoy the political pros, but it's an integral part of any political system that isn't an overt farce.