Monday, January 17, 2011

"How Much Speech Will We Buy in 2012?"

This post originally appeared in the Huffington Post.

The 112th Congress is in its infancy, and already we're off to the races fundraising for 2012. Congressman Michael Fitzpatrick of Pennsylvania apparently missed a swearing in ceremony in order to hold a purported fundraiser on Capitol grounds, a violation of House ethics rules. Fitzpatrick was accompanied by Representative Pete Sessions of Texas, chairman of the National Republican Congressional Committee. (Because Fitzpatrick and Sessions missed the swearing in ceremony their early votes were voided. Such is life, it is not like it is their job to vote and represent their constituents. Oh, wait.)

It seems there will be no shortage of work for the House's Office of Congressional Ethics. But the incident speaks to a broader issue. Before our elected officials are even sworn in to do the job we elected them to do -- namely to represent us -- they are raising money for the next race.

Why Is It So Hard to Limit the Amount of Money in Politics?

In 1976 the United States Supreme Court changed the face of modern politics and political campaigns by ruling that money spent in political campaigns is the equivalent of speech. If pressed to categorize the ruling in two words, I would likely choose "unmitigated disaster." The Supreme Court has since eviscerated many of laws enacted to stem the tide of money (er, speech).

The Court's decision means that every time a person gives or spends money in politics, they are speaking, and whenever we enact laws the restrict the flow of money in politics, we are restricting speech. Because the Court is rightfully ruthlessly protective of First Amendment rights, the Court is reticent to allow most laws that restrict the amount of money we can give and receive in political campaigns, and as a result money flows very freely throughout our political system.

The Court's ruling rests on a foundation about as strong as quick sand.
Money plays a role in political campaigns that is difficult to underestimate. Money allows speech by candidates and independent groups to reach a wider audience. Simply put, money helps to enable speech. Money amplifies speech. It is not, however, speech itself. If money is not pure speech, but rather the antecedent to speech, it is entitled to a lower level of First Amendment protection and can be limited.

Money without a speaker conveys nothing. A speaker without money can still communicate. It may be that few people will hear the person with few funds. That is why candidates and independent organizations must be allowed to spend enough money to get their messages out, just not so much that I need earplugs to hear those messages. Put another way, use an inside voice. No need to scream it.

What Would Happen in World with Campaign Finance Limitations?

Something could transpire when contributors, candidates and independent organizations don't spend close to unlimited sums. We might hear from more people, namely those who can't or don't want to spend money. Hence, reducing the amount of money spent can actually increase actual speech.

Go to a music concert and take the amplifiers away. Many will still be able to hear the performance and those screaming in the audience. Add the amplifiers and virtually all I will hear is a louder version of the same performance, but the audience will be drowned out.

Why, Specifically, Are Campaign Finance Limitations Important?

Despite obstacles erected by the Supreme Court, legislatures on all levels of government have enacted laws to try to stem the tide of money pumping through our political system. Why? For starters, money spent in campaigns can lead to corruption or its appearance. Even if a politician doesn't actually give a favor in return for a large contribution, chances are we suspect that she or might have. This suspicion that politicians are too responsive to the wishes of big spenders and not to their constituents is one of the main purposes of campaign finance reforms. In a representative democracy it is vital that constituents feel their elected officials are representing them, not their contributors.

In addition, when money is all but unlimited in politics (or, when we have a system that provides for contribution limits but no limits on expenditures) the need and desire to fundraise in indefatigable. In such a system it is no surprise that elected officials like Fitzpatrick and Sessions begin fundraising even before (or actually when) they are sworn in. Part of the purpose of campaign finance restrictions, therefore, is to allow our representatives to do what we sent them to D.C., the state capital or city hall to do, make laws that best represent us.

Is Campaign Finance a Cure All?

Absolutely not. To paraphrase a famous quote, it may be that money, like water, will always find a way. I'm merely advocating that we plug a few cracks, and install a better drainage system.

Money doesn't always speak loudest, and quite likely is not the only or greatest influencer in people's behavior. Sometimes we make decisions because we believe them to be right and fair, regardless of the role money has played. Sometimes we seek the counsel of others. People, regardless of money, can wield enormous influence. Even as an adult, a lawyer, a sometimes law professor and political commentator, chances are that when faced with my high school principal, I'm going to listen. The only question is whether I respond like a tween or not.

The fact that is plays a role at all in the decisions of our elected officials is enough for me to argue in favor of reasonable restrictions of money. Perhaps such restrictions will foster an atmosphere where swearing in ceremonies are prized above fundraisers.

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