Robert Samuelson April 7, 2014

On its present course, the Supreme Court will ultimately overrule its 1976 decision in Buckley v. Valeo, the landmark case upholding campaign finance “reform” legislation. It can’t come too soon, because Buckley expressly ignored the First Amendment’s injunction that “Congress shall make no law . . . abridging the freedom of speech.” Instead of free speech, we now haveregulated speech that has ensnarled elections in a web of bizarre andopaque rules. Last week, in McCutcheon et al. v. Federal Election Commission, the court began edging away from Buckley by striking down one of its limits on free speech. The details are less important than the court’s direction.

Let’s be clear about the stakes.

Free speech is not speechyou agree with, uttered by someone you admire. It’s speech that you find stupid, selfish, dangerous, uninformed or threatening, spoken andsponsored by someone you despise, fear or ridicule. Free speech isunpopular, contentious and sometimes ugly. It reflects a tolerance fordifferences. If everyone agreed on all things, we wouldn’t need it.

In American democracy, this free speech plays two vital roles. The firstis well recognized. It is to shape public opinion and to influenceelections that, in turn, determine the social climate and steergovernment. We cherish “the marketplace of ideas” because (we assume) it allows us, through give and take, to arrive at better ideas and togrope our way toward consensus on hard issues.

Free speech’ssecond function is less understood. It buttresses the political system’s legitimacy. It helps losers in the struggle for public opinion andelectoral success accept their fates. It helps keep them loyal to thesystem, even though it has disappointed them. They will accept theoutcomes because they believe they’ve had a fair opportunity to expressand advance their views. There’s always the next election. Free speechunderpins our larger concept of freedom.

Campaign finance “reform” degrades these core virtues in a quixotic effort to regulate politics. How did this happen? The answer is history. Watergate involved some especially sordid campaign solicitations by President Nixon’s henchmen. When exposed, these abuses inspired abacklash. We would purge politics of the evils of money. A “reform” ideology arose that subordinated the First Amendment to these lofty ambitions.

In this ideology, money is not speech. Speech is speech; contributions can be curbed to improve the political system without offending the FirstAmendment. Doing so is important, because the alternative consignsgovernment’s vast powers to the rich. Through disproportionatecontributions, these moneyed interests win elections and impose theirnarrow agenda on the nation. This is the ultimate corruption of politics and government.

All this has had an appealing logic for the high-minded. There is only one problem: Each of these basic beliefs is false.

In politics, money is speech. Political speech is a public phenomenon. Itaims to affect how people behave. It requires money to hire campaignstaff, build a Web site, buy political spots and the like. Pennilesspoliticians can’t easily communicate. Limiting my ability to contributeto candidates and parties restricts my First Amendment rights.

Still, that doesn’t mean that rich contributors can deliver elections. True,many of the wealthy have evaded the limits on candidate contributions by giving to “independent” groups. But the super-rich are not a monolithic bloc. There are super-rich conservatives and super-rich liberals.Business groups are often splintered. Nor does money guarantee victory.After a certain point, more money hits the law of diminishing returns.It can be and is misspent.

Whatever donors’ influence, governmentisn’t the preserve of the wealthy or business interests. Most federalspending goes to the poor and the middle class (70 percent in 2014 are “payments for individuals,” says the Office of Management and Budget, for Social Security,Medicare, Medicaid, food stamps and other programs), and most taxes arepaid by the richest 10 percent (53 percent of all federal taxes in 2010, says the Congressional Budget Office). Most regulations targetbusinesses. Sure, business groups and the rich sometimes securefavorable regulations, tax breaks and subsidies. But their triumphs are a small part of the picture.

Campaign finance “reform” aims to fix a problem that doesn’t really exist. It not only has failed but hasactually made the situation worse. In Buckley v. Valeo, thecourt had to embrace some rationale for its acknowledged limits on First Amendment rights. The chosen reason was preventing “corruption or theappearance of corruption.” So advocates and the courts must constantlyrepeat that the present system is “corrupt.” Meanwhile, the law’svarious limits force people who want to spend above the limits intoincreasingly complex evasions that look sleazy and defy the spirit ofthe law. But the fault lies with the law, not the people. The sooner itgoes, the better.

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