When Money Is Speech, Speech Is No Longer Free

Building atop the rotten foundation it laid three decades ago, the Supreme Court late last month struck down the "millionaire's amendment," a federal law that helped keep congressional elections competitive when a candidate used a personal fortune to fund a campaign. The law could have applied to 28 or more races this year.

The court's ruling in Federal Election Commission v. Davis repeatedly references its 1976 Buckley v. Valeo decision, which wrote between the lines of the First Amendment passage, "Congress shall make no law ... abridging the freedom of speech," to declare that spending money to influence elections is constitutionally protected free speech. Since then, the justices have struck down numerous laws designed to limit the power of money over election outcomes.

What's shocking about the Davis opinion, however, is that the law in question -- the 2002 "millionaire's amendment" to the Bipartisan Campaign Reform Act -- made no attempt to limit spending or communication. To the contrary, that amendment to the bill, known as McCain-Feingold, merely enabled a candidate competing against a free-spending multimillionaire to raise more money. According to the court's previous rulings, this simply enabled more "speech."

The amendment allowed a House candidate whose opponent spent $350,000 or more in personal funds to accept up to three times the current $2,300-per-donor limit (but only until such contributions equaled the self-funding candidate's). Thresholds for U.S. Senate races varied based on state population.

Writing the 5-4 majority opinion, Justice Samuel A. Alito Jr. said, "Different candidates have different strengths. Some are wealthy; others have wealthy supporters who are willing to make large contributions. Some are celebrities." The trouble is, those advantages tend to accrue to the same individuals -- not "different candidates."

Justice Alito strangely argued that helping all serious candidates be heard would prevent voters from independently evaluating their choices. He added, "The argument that a candidate's speech may be restricted in order to level electoral opportunity has ominous implications."

What restriction of speech? The amendment's sole effect was to help prevent the candidate with the loudest amplification from drowning out all other voices.

This is not a Republican-Democrat conflict. The 28 candidates spending enough to trigger the amendment this year were split between the dominant parties, though none was an independent or "third party" representative. In Maryland's 1st Congressional District, E.J. Pipkin personally invested more than $1 million in his campaign (he lost the Republican primary in January).

Ironically, the presidential candidate who has abandoned public financing for the general election benefited directly from the amendment in 2004. Sen. Barack Obama was able to raise $3 million more than he otherwise could have in Illinois' Democratic primary for Senate because one of his opponents, Blair Hull, spent nearly $30 million of his own money. It's quite possible the amendment already has changed the course of U.S. history.

The justices' ruling may affect just a few dozen congressional races this year, but Davis is more troubling when viewed in conjunction with the 2006 Randall v. Sorrell decision, which deemed Vermont's limits on campaign contributions and spending unconstitutional.

Each such act by the court diminishes the chance of any citizen winning a seat in Congress without huge sums of money and accelerates the trend toward Congress becoming a rarefied club populated by elites distinctly unrepresentative of our diverse nation.

Not only will Davis impede citizens from learning the views of some worthy candidates, but its language ominously suggests the court may overturn long-standing limits on corporate and union campaign spending. Further, it implicitly attacks the most hopeful avenue for democratizing elections without overturning Buckley: public campaign financing. When the court majority declares easing barriers to competitive elections an unconstitutional "burden" on wealthy candidates, it leaves little space for hope.

With the existing majority likely to dominate the court for a decade or more, reformers must confront a hard truth: The Supreme Court is a barrier to democratic elections and will be for many years. It's time to aim below the beltway -- away from legislative solutions subject to the court's approval and toward building bottom-up support to overrule the court. Ultimately, we need a constitutional amendment to declare that investing cash in candidates is a privilege subject to democratic controls to prevent the buying both of elected offices and political influence -- not free speech as intended by our Bill of Rights.

Jeff Milchen serves on the board of ReclaimDemocracy.org, a nonprofit that advocates for a constitutional amendment to overturn Buckley v. Valeo. His e-mail is info@reclaimdemocracy.org.

Copyright (c) 2008, The Baltimore Sun

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