By Daniel P. Tokaji, an associate professor of law at Ohio State University's Moritz College of law and associate director of Election Law @ Moritz; Mr. Tokaji is also a member of the ACS Board of Directors.
Last Thursday, federal courts decided two significant campaign finance cases. In SpeechNow.org v. Federal Election Commission, the D.C. Circuit struck down limits on contributions to a nonprofit group that sought to make independent expenditures for and against federal candidates. In the other case, Republican National Committee v. Federal Election Commission, the D.C. federal district court upheld provisions of the Bipartisan Campaign Reform Act (commonly known as "McCain-Feingold") limiting "soft money" contributions to political parties. These decisions follow the U.S. Supreme Court's January decision in Citizens United v. Federal Election Commission, which struck down a prohibition on corporate expenditures for or against federal candidates.
The details of these cases can be mind-numbing, especially for those who don't closely follow this area of law. Focusing on the details, moreover, can cause us to miss the bigger picture.
This comment steps back from the fine points of campaign finance law to examine the overarching problem with the Supreme Court's campaign finance jurisprudence - namely, its rejection of equality as a central value in our democracy. The body of law that the Court has developed over three and one-half decades has led not only to a stunted constitutional doctrine, but also to an impoverished public discourse. Ironically, the effect of the Court's First Amendment jurisprudence has been to suppress discussion of equality as a justification for regulating politics. For those of us who believe that equality is a central democratic value, a reinvigoration of this discourse is long overdue.
Buckley's Rejection of the Equality Rationale
The central problem can be traced to a sentence in Buckley v. Valeo, the Supreme Court's 1976 decision setting the framework for judicial review of contrib
ution and expenditure limits. According to Buckley: "The concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment." With these words, the Court took off the table the argument that spending limits might actually enhance our democratic discourse. Buckley presumed that a system of unlimited campaign expenditures works best and, at the same time, eliminated the promotion of systemic equality as a basis for spending limits. The prevention of corruption or its appearance became the sole permissible justification for limits on individual spending.
In the decades following Buckley, the constitutional debate over campaign finance too often got sidetracked over whether money was really speech or, as Justice Stevens argued, "property ... not speech." This is the wrong question. Whether or not money is speech, it clearly facilitates political expression. Money is necessary to have one's political views heard, and therefore to participate meaningfully in campaign-related debates.
The observation that money facilitates speech doesn't end the constitutional inquiry, however, but is just the beginning. If one accepts the proposition that money facilitates political speech, a corollary is that those without resources aren't able to participate meaningfully in the conversations of democracy. The have-nots in our society therefore enjoy less political influence than the haves - and much less than the have-alots. In a society committed to political equality, this state of affairs is deeply troubling.
rned a 20-year-old ruling that said corporations can be prohibited from using money from their general treasuries to pay for their own campaign ads." The Citizens United decision, the AP reports, leaves untouched "the prohibition on direct contributions to candidates from corporations and unions."