Campaign Spending—Political Crisis or Protected Communication?

There is a crisis in American politics, says one side. And money is the root cause of that crisis. It is a truism of our times: money talks, money matters, money buys elections. People with more money buy more political speech. By the same token, those seeking to enter the political conversation as candidates face a formidable barrier if they lack the large amount of money needed to wage a successful media campaign. In other words, it is necessary to either have great wealth or appeal to those who have great wealth. The issue, however, is not just the corrupting influence of money on our electoral system. A greater problem is the electorate’s ostensible indifference to it. Citizens appear to have become weary. They seem to have accepted the “rules of the game,” which allow the vicious cycle of money making more money—money buying media, media influencing polls, polls swaying elections, elections fostering candidates beholden to special interests, and elected officials looking for the next financial fix to buy the next election. As such, American democracy is in decline. This is our fate; this is our crisis.

The First Amendment is more than mere words, spoken or printed. It is about expression in the most magnificent sense, says the other side. That expression can be symbolic, artistic, or any peaceful form of manifesting one’s sense of self. But when a man prints a pamphlet, he must first pay for it. When a woman posts lawn signs, she must first purchase them. Similarly, when citizens gather in a home at a fundraiser to support a candidate, they express themselves by the monetary contributions they make: “I believe in you enough to support you with my money.” Mindful of that, recall the lofty words of the Declaration of Independence: “we mutually pledge to each other our lives, our fortunes and our sacred honor.” Thus, money can be both the medium and the message. Admittedly, money is not all of who we are. Then again, neither is it something that can be easily divorced from how we express ourselves. For example, when we give to a homeless shelter, we make a statement. When a protest group places a paid ad in a newspaper, it makes a statement. By that logic, capitalism is the handmaiden of communication. That is the American way.

But is it?

No, argue the defenders of campaign finance laws. The “money race” has corrupted our political process. The demand for more and more “campaign cash” from the rich few is what defines the agenda for any candidate who hopes to win. Between 1974 and 2010, the total money spent by all federal candidates running in the House and Senate increased a whopping 525 percent, from $77 million to $1.8 billion. In 2012 the top ten individual donors (mostly Republicans) flexed their monetary muscles to the tune of $121 million in campaign money. And in that same year, President Barack Obama raised in excess of $715 million. Translated: politicians have become dependent on big money. Worse still, were McCutcheon to prevail in his First Amendment challenge, we would be left with “a system of legalized bribery in this country,” as Fred Wertheimer told the New York Times.

Is that indeed true? Has our electoral process been corrupted? Is legalized bribery soon to become the norm?

Quite the contrary, reply the opponents of campaign finance laws, our system of electing political candidates has been fortified and made more robust because of money in politics. Political speech, they argue, is at the heart of the First Amendment, and spending money on political campaigns is central to freedom of expression. As John Bolton (who worked on the famed Buckley v. Valeo case) put it during a December 1997 C-SPAN program: “Campaign financing is probably the single best issue that defines…where you stand in the debate between the liberty of the individual on the one hand, and the power and authority of the government on the other.”

Whether it be the Sierra Club, the American Federation of Teachers, or George Soros (who has spent some $20 million to back progressive candidates), associations and individuals spend large amounts of money to express their political views. According to a November 5, 2013, New York Times story, liberals are not immune from handing out big money to influence the outcomes of elections. “Democrats and unions, fearful that a landslide victory by Governor Chris Christie will reshape New Jersey’s political landscape, have poured tens of millions of dollars into a record-breaking outside spending campaign that has transformed the state’s election season.” The Times story added, “according to the state’s election law enforcement board, outside spending for candidates had topped $35 million, twice the amount spent when Mr. Christie, a Republican, was elected in 2009 and the highest recorded by any state except California.”

While citizens vote at the voting booth, they vote with their dollars. Moreover, some argue that there is no proof that the kind of aggregate limits challenged in McCutcheon actually prevent electoral corruption or even the appearance of it. “If there is any evidence that these aggregate contribution limits provide any public benefits,” says Paul Sherman of the Institute for Justice, “the proponents of the laws haven’t pointed to it. The vast majority of states have no comparable limits for contributions in state elections, and there is not the slightest evidence that those states are any more corrupt or less well governed than states that do.”

Which was it: corrupting influence or not? In time, six men and three women would decide that question.