Clarence Thomas walks.
(1,048 words; posted Friday, July 12; to be composted Friday, July 19)
By Michael Kinsley
Twenty years ago the Supreme Court made a mess of campaign-finance reform. A Watergate-inspired law of 1974 had placed dollar limits on campaign contributions and campaign spending for federal offices. In Buckley vs. Valeo (1976), the court ruled that spending limits violate the First Amendment: The government cannot restrict your right to spend money communicating the message of your choice. The court upheld contribution limits on the reasoning that contributing money to someone else is not an act of speech. (Spending limits for presidential campaigns were allowed as a quid pro quo for accepting federal funds.)
Having contribution limits but no spending limits creates all sorts of weird anomalies, above all the shadowy and often farcical distinction between “independent” and “coordinated” expenditure. If your spending is coordinated in any way with the campaign you’re supporting, it’s held to be an in-kind contribution, subject to limits. Unless, that is, you yourself are the candidate, in which case you may spend and coordinate to your heart’s content. It all makes perfect sense–in theory.
The court wandered back into this thicket last month, and wandered out again. Colorado Republican Federal Campaign Committee vs. Federal Election Commission held that the government cannot restrict spending by the state Republican Party on behalf of a Republican Senate candidate. But the opinions were all over the lot. Some Justices said that the spending was independent and therefore OK. Some said it was coordinated, but OK anyway in the case of a political party. Some said it was coordinated and therefore not OK. And Clarence Thomas said the whole game was absurd because contributions deserve First Amendment protection just like expenditure.
The official goo-goo position for 20 years has been that Buckley vs. Valeo is wrong for the opposite reason: Spending limits should be OK too. The shorthand argument is that “money isn’t speech.” Spending limits don’t prevent anyone from expressing an opinion. At most they regulate the volume of speech, not the content. Efforts to level the playing field of politics and reduce political corruption, by reducing the role of money, actually serve First Amendment interests. The New York Times has published innumerable editorial riffs on these themes.
But how would the New York Times feel about a “reform” that did the same thing in the field of newspapers? That is, a law designed to level the playing field and promote diversity in an increasingly concentrated industry vital to the political debate. The law would limit the amount anyone could spend in a year for the purpose of publishing a newspaper. The law would place no limits on what could be said in a newspaper–only on what could be spent on a newspaper. And suppose that the limit were somewhat less than the Times now spends (less, even, than its in-house downsizers dream of spending). The Times, I think, would find serious First Amendment difficulties with such a law.
As this example shows, money indeed is speech. Restrictions on people’s right to spend money expressing themselves is a very real–and unconstitutional–restriction on their right of free speech. The government certainly may address the problem of unequal voices in the political debate. It may do so through devices that increase the quantity or volume of speech, such as financial subsidies or free TV time. To some extent the government needn’t be impartial: It can promote the messages it prefers (“drugs are bad”) over messages it doesn’t (“drugs are fun”). What it should not be allowed to do is to level the debate by reducing the volume or quantity of someone’s speech. And that means money.
So is Clarence Thomas right? Are contribution limits no different? Thomas’ opinion is part of an increasingly popular line among conservatives that the best campaign reform would be to repeal the old rules, not to pass new ones. Senate Republicans last month killed a reform bill that would have cracked down on PACs, “soft money,” and other current arrangements some people don’t care for. A major Republican talking point was that contribution limits are an offense against freedom of speech.
It’s fun to see Justice Thomas and Republican senators calling for anti-majoritarian judicial activism. What they are saying is that even though contribution limits are so popular that voters are clamoring for more, and even though these limits are embodied in a law duly enacted by a majority in Congress and signed by the president, “unelected judges”–I believe that’s the usual epithet–should tell the people they can’t have their way. George Will has written column after column sermonizing about First Amendment excesses, lecturing sternly about the difference between “speech” and “action,” and ridiculing the idea that (for example) flag-burning sends a political message and therefore qualifies for First Amendment protection. Yet there he is in Newsweek last week huffing that campaign-finance reform “has done more damage to constitutional values than Watergate,” and endorsing Thomas’ notion that political contributions “are acts of political expression, as well as exercises in freedom of association.”
That’s the argument, and it’s pretty weak. Unlike, say, burning the flag, the act of making a political contribution is not primarily intended to send a message. In fact the contribution would often be unknown if it weren’t for federal reporting regulations. As the court reasoned in 1976, the message implicit in a campaign contribution–“I support Candidate X”–has little to do with the size of the contribution. (A bigger contribution may or may not mean, “I really, really support Candidate X.”) “Freedom of association” is an even bigger stretch–one that Justice Thomas would laugh out of court if some liberal proposed it. Contribution limits don’t stop you from associating publicly or privately with a candidate or cause, working for the campaign, or even signifying your association by donating money. They may prevent you from associating with the senator at an exclusive cocktail party for lobbyists and other large givers–but that’s the whole idea.
A muddy distinction, like the one between “independent” and “coordinated” campaign spending, usually signifies that the underlying principle needs work. In this case the principle–giving First Amendment protection to campaign spending but not to contributions–is widely mocked from both directions. As it happens, though, the Supreme Court got it just about right 20 years ago.
Michael Kinsley is editor of SLATE.