Constitutionally Protected: the Marketplace of Political Ideas

Those that bemoan the vast amounts of money in politics can feel comfortable knowing they have absolutely contributed to the increase of money in politics.

George Will has a particularly astute post requesting an apology from campaign finance reformers. He opined on the predictable consequence arising from the campaign finance laws zealously imposed by the righteous warriors who are supposedly uniquely qualified to regulate campaigns and political speech.   The folly of campaign finance law is something I have already discussed.  However, Will brings up a couple of important points, directly and indirectly, which have encouraged me to pick up this topic yet again.

Will’s primary thesis is that campaigns and elections are not equivalent and there is no enumerated power permitting the federal government to regulate campaigns, only elections. Mr. Will explains:

Reformers who resent the existence of super PACs, and the reformers’ critics who oppose the reformers’ regulations of politics that have made super PACs necessary, should ponder Bradley A. Smith’s “Separation of Campaign and State” in the George Washington Law Review of November 2013. He argues not just that the quality of America’s civic conversation would be improved by the deregulation of politics but also that the Constitution requires this because it contains no enumerated power authorizing Congress to regulate campaigning.

The Constitution speaks only of Congress’s power to regulate the “time, place and manner” of elections. Congress has justified the regulation of political speech by conflating what Smith rightly says are two quite different things — campaigns and elections. Campaigns consist of speech and other activities to persuade the public to register particular decisions in elections. Elections are the formal processes by which those decisions are recorded.

The regulation of the quantity, content and timing of political speech is clearly unrelated to regulating an election’s “time” or “place.” Can Congress, however, wring an implied power to regulate political speech from the enumerated power to regulate the “manner” of elections? No. [emphasis added]

The constitutional authority for regulating campaigns is certainly on shaky grounds.  This is a strong textual argument. There is no such power granted to Congress to regulate a campaign.  The end.  Unfortunately, Buckley v. Valeo and subsequent cases contend otherwise. A pithy summary of the Court’s reasoning pins the state’s interest in regulating campaign financing on “the prevention of corruption and the appearance of corruption spawned by the real or imagined coercive influence of large financial contributions on candidates’ positions and on their actions if elected to office.” [emphasis added] These are broad, deferential, inexact justifications considering there is no enumerated power permitting Congress to regulate campaigns.

This unconstitutional regulation is further compounded by the introduction of foundational constitutional rights, particularly the First Amendment. Not only is there an enumerated power limiting the reach of Congress in campaigns, but the highest protections of constitutional law apply directly to campaigns – in this case freedom of speech.

Admittedly, reformers often argue that money is not speech and it can therefore be restricted. Clearly money itself is not speech, however it enables speech. It is impossible to limit money designated for speech and not limit speech. Thus limiting contributions designated for travel, ads, posters, bumper stickers, essays, op-eds, loudspeakers, printing presses, internet access, etc., designed to aid speech and speakers is an abridgment of speech.  It curtails both access to and quality of speech.

Simultaneously, campaigns are almost entirely speech. If speech were to be removed from a campaign only a shell of mute politically ambitious organizers would remain. It would look like ground zero for the zombie apocalypse  (arguably does even with speech).  It is impossible to regulate a campaign and not touch on free speech. Reformers cannot regulate the former without abridging the latter. Thus, these reformers are left without constitutional justification for their actions on two accounts. However, beyond the constitutionality it is important to note the nature of campaigns.

A fundamental justification for free speech, and an apt description of speech, is that it is a marketplace of ideas. This rationale has underpinned the American view of speech and shaped a significant amount of jurisprudence.  John Stuart Mill justified the need to hear opposing views. Regarding restricting opposing views, he stated:

It is the undertaking to decide that question for others, without allowing them to hear what can be said on the contrary side. And I denounce and reprobate this pretension not the less if it is put forth on the side of my most solemn convictions. However, positive anyone’s persuasion may be, not only of the faculty but of the pernicious consequences, but (to adopt expressions which I altogether condemn) the immorality and impiety of opinion. – yet if, in pursuance of that private judgement, though backed by the public judgement of his country or contemporaries, he prevents the opinion from being heard in its defence, he assumes infallibility. And so far from the assumption being less objectionable or less dangerous because the opinion is called immoral or impious, this is the case of all others in which it is most fatal.

This concept was adopted by Justices Holmes and Douglas. Holmes argued that the “ultimate good desired is better reached by free trade in ideas.” Douglas later expounded on the concept stating that “[a] publisher bids for the minds of men in the market place of ideas.”  It is no surprise that this justification extends beyond just the battlefield of ideas, but the market for speech and campaigns takes on other characteristics of a market. Will notes that campaigns are hard to regulate, and regulations constantly cause unintended consequences. I have also written on this.  Unintended consequences are not surprising simply because campaigns are part of a market, and markets are hard to regulate.  Regulations create unintended (though often foreseen) consequences as consumers and producers adapt to new incentives. These unintended consequences include an increase in the price of goods or services.  It logically follows that campaign regulations  will create undesired and unintended consequences and will make campaigns more expensive.

Will also addressed some of the unintended consequences, primarily the rise of super PACs. However regarding the cost of campaigning it is important to illustrate the additional cost imposed by regulations. Regulations require examination and compliance.  For candidates to know, understand, and comply with state and federal law, they must hire professionals such as lawyers and campaign managers to navigate the complex regulatory requirements. All of this has a cost – one that exists only because of the regulations. Someone must track donors, limit funding, check on applicable laws for the various organs that may donate, prevent infractions, and determine the proper order and procedure for announcing, implementing and ending a campaign. Thus those that bemoan the vast amounts of money in politics can feel comfortable knowing they as reformers have absolutely contributed to the increase of money in politics.

As Will and others continually point out, the idea that a market may  be so easily regulated consistently fails in application.  This is in large part due to the incapacity of a regulator to determine the value of a resource, determine who values that resource, and then distribute accordingly. Speech is no different. Like most goods or services there is a supply and demand, and similarly different types of speech, speakers, and content are valued differently. Voters, to varying degrees, want candidate and policy information.  Information that unavoidably at some point has to come from candidates and political organizations. No regulatory scheme will be able to compensate for this demand.  Further regulation will only continue to increase the costs of a high demand product. These forces are hard to control in any meaningful way unless basic freedoms are forfeit, which would transform elections into a farce loosing all appearance of legitimacy.

In reality the current state of elections in the US are already approaching this state simply because of government control over campaigns.  The fact that political bodies have asked for control of the political process is far more problematic than allowing financed petitions for votes (which is all a campaign is).  In the end, for any type of democratic process to survive, there must be faith in the ability of voters to choose.   I, then, echo Mr. Will’s (and Smith’s) conclusion, “[t]he phrase ‘a wall of separation between church and state’ is from Thomas Jefferson, not the Constitution. But, says Smith, the metaphor’s aptness ‘flows from the document’s structure and purpose.’ So does the propriety of a wall between campaigns and government: It is simply impermissible for the government to regulate the debate that determines if the party controlling this or that portion of the government will retain control. “

Impermissible indeed. Let us examine exactly what phantom is fought in the war of campaign regulation: the “real or imagined coercive influence” of money in campaigns. Instead of striking down this apparition, it has, instead, increased money in politics, created unintended consequences, curtailed speech, and increased the barriers to enter into political campaigns.

James C. Devereaux is an attorney and freedom fanatic. Questions, complaints and hysterics can be sent to or follow him on twitter @jcdevereaux1.

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