Campaign Reform and the Purpose of the First Amendment

A commemoration of the Constitution calls for impertinent arguments. Mine is this: Our campaign-finance regime ought to be as unregulated as possible, but not for the reasons commonly supposed.[1]

The usual way of thinking about campaign finance and free speech pertains primarily to the rights of the speaker rather than the purpose that such speech serves for the listener. And lawmaking in this area tries to affect the behavior of candidates for public office. In a way, this is natural. We see politics through the eyes of politicians—an artifact, I would argue, of the decay of an informal ethic, as well as of our institutions, of self-government.

But this perspective is both misguided and untrue to the purpose and original understanding of the First Amendment, which had very little to do with empowering speakers and everything to do with informing voters—informing them, moreover, for a particular reason. In James Madison’s description, the point of freedom of speech and press was to enable another right: that of “freely examining public characters and measures, and of free communication among the people thereon.”

The question we need to ask with respect to campaign finance is whether restricting it through regulations facilitates or undermines that end. We need, in short, to stop thinking of free speech deontologically—of a right to free speech independent of any larger considerations of the polity as a whole—and start thinking teleologically, in terms of the First Amendment’s end or purpose.

For an illustration of the teleological approach, consider New York Times v. Sullivan (1964), the decision establishing the standard of “actual malice” for prosecuting libel cases involving public figures. According to Justice William Brennan’s majority opinion, the basis of the diminished protection for these figures is the telos—the purpose—of the First Amendment or, in Brennan’s terms, the reason it was “fashioned.” He wrote:

The general proposition that freedom of expression upon public questions is secured by the First Amendment has long been settled by our decisions. The constitutional safeguard, we have said, “was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people.”

Notice that use of “unfettered,” and the fact that the decision is oriented toward the people, not fairness for the speaker or even fairness or unfairness toward the target of speech, even though the speech in question in Sullivan was demonstrably inaccurate.

Compare that with Citizens United v. FEC (2010), which reached the right decision for questionable reasons. It spoke almost—though not entirely—from the perspective of the rights of the autonomous speaker rather than those of the listening audience.

Consider how Justice Anthony Kennedy’s majority opinion sets up the First Amendment challenge:

The law before us is an outright ban, backed by criminal sanctions. … [T]he following acts would all be felonies under § 441b: The Sierra Club runs an ad, within the crucial phase of 60 days before the general election , that exhorts the public to disapprove of a Congressman who favors logging in national forests; the National Rifle Association publishes a book urging the public to vote for the challenger because the incumbent U.S. Senator supports a handgun ban; and the American Civil Liberties Union creates a Web site telling the public to vote for a Presidential candidate in light of that candidate’s defense of free speech. These prohibitions are classic examples of censorship.

Only after repeatedly emphasizing the rights of speakers—the deontological understanding—does the opinion state the First Amendment’s telos. Yet Kennedy’s opinion immediately reverts to deontological language, setting up a standard of “strict scrutiny”—that calling-card of rights talk—requiring that laws restricting political speech be narrowly tailored to advance a compelling state interest.

This deontological approach has focused controversy almost entirely on the question of whether corporations have the right to speak. The problem with the strict-scrutiny standard of Citizens United runs deeper even than that, and  it cuts to the heart of the deontological versus teleological understanding of the First Amendment. “Strict scrutiny” seeks to balance the values of the First Amendment with exterior state interests, which the standard tells us must be compelling and narrowly pursued. This follows the precedent of Buckley v. Valeo (1976), which introduced the actuality or appearance of corruption as a competing value that legitimated restricting the First Amendment’s protections.

Yet those who ratified the First Amendment have already done the balancing. If political speech concerning candidates for office is covered by the First Amendment, then other values—whether promoting competition among electoral candidates or guarding against the corruption of officeholders—have already been settled as subordinate.

This confusion is, in a sense, endemic to the deontological approach. All rights have limits, and we are naturally led, in proclaiming a right to be fundamental, to draw back from the implications of exercising it at its extremes. Yet what the First Amendment asks us to do is to define the right’s scope, and this must be done in accord with its telos, which is the examination of public characters and issues.

The Court would have better reached its decision in Citizens United if it had said that limitations on political speech constrict the flow of information to the detriment of the processes of self-government. Under this teleological perspective, political campaigns are not the exclusive or even primary province of candidates. Such terms as “independent” or “coordinated” expenditures consequently miss the point. To suggest that the dominant issue regarding an expenditure is whether a candidate controlled it is to suggest that the candidate somehow controls, or ought to, the political environment. In fact campaigns are conducted not for the benefit of candidates but rather to assist the voters in their work of self-government. Thus, more expenditures that result in the flow of more information and opinion are better.

The alternative is a scheme of regulation that almost always presents a conflict of interest for the regulators, who, after all, are themselves contenders for public trust and whose interest in manipulating the flow of information and commentary is undeniable. Beware objects of speech regulating speech.

It is often argued that contributors to campaigns distort the political process toward the wealthy, especially given cases like Citizens United and McCutcheon v. FEC (2014), which allow unlimited spending. This distortion may occur in multiple ways, either through unequal influence—a donor has a disproportionate say over who holds public office—or quid pro quo corruption, with a donor gaining access or favors in exchange for contributions.

Again, the telos of the First Amendment reminds us that the only test we need to apply is a simple one: Does a given regulatory scheme facilitate or inhibit the examination of public officials and issues? Still, these other concerns merit attention.

The inequality concern distills to a rejection of a gatekeeping function for the wealthy. That is, a candidate should not have to pass through a gate operated by the privileged in order to run a competitive campaign. The basic problem with the gatekeeping thesis is that no one bothered to lock the gates. It relies on a series of empirical and theoretical assumptions that are either at odds with themselves or at odds with evidence.

For starters, to state the obvious, money does not win elections. Votes win elections. Money, moreover, does not buy votes. Anyone who thinks one is causally linked to the other, first, was not paying careful attention during the 2016 Republican primaries—when Donald Trump spent the least money but got the most votes and Jeb Bush spent the most but got the least—and second, makes for a strange populist: that is, the kind who thinks the average voter is the unreflective dupe of political advertising.

That is not to say all advertisements are high-minded. Few are. But it is surely beyond either the competence or purview of government, consistent with the First Amendment, to regulate speech on the grounds of which speech could be considered informative and which not.

The second concern—corruption—is plausible. But it only gets us so far. The First Amendment does not permit legislators or judges to import external values into its calculus. Those who ratified it already did the balancing. Speech came out on top.

Similarly, attempts to eradicate corruption only get us so far. That is partly because corruption is inescapably stuck in the beholder’s eye. Political spending can as easily be seen as philanthropic as selfish: The donor has a vision for his or her society and is willing to forgo other, purely private goods to achieve it.

Corruption is also notoriously hard to define. The quid pro quo is a classic instance. Presumably a donor who spends $100,000 to elect a member of Congress in the hope that once in office he or she will secure the donor a tax benefit worth more than the contribution is doing something untoward. Is the grandmother who includes a $25 check with her request that Representative Jones look after her Social Security? These acts differ in degree, not kind.

Of course, we suspect instinctively that there is still a discrepancy here that we should note. It may be that the grandmother’s Social Security is universally available whereas the specialized tax break was only going to be granted to a privileged few.

Here let me suggest that “supply-side campaign reform” may be in order. The basic idea is that the problem with rent-seeking is not the seeking. It is the rents. Therefore the best way to diminish transactional politics would be to lessen the incentive for the transactions by driving government from the nooks and crannies of economic life where they breed.

Whereas conventional campaign-finance reform typically focuses on regulating the demand for donations, supply-side reform would shift to the reasons that quid pro quo contributions are offered. The average widget manufacturer would have far less incentive to donate money to campaigns, much less to office-seekers on both sides of the same race, if government were not in the business of determining winners and losers in the widget business.

Fewer quos, fewer quids.

This is not a case for small as opposed to big government. It is a case for simple as opposed to complex government. Social Security is a large program and, I grant, a fraught one. But the source of its untouchability is votes, not campaign contributions. In contrast, favorable subsidies or regulations for widget manufacturers survive in the Federal Register or the U.S. Code primarily because these barnacle-like measures are so numerous that voters either cannot afford to spend their single ballot on any one, or because they cannot reasonably be expected to be aware of them in the first place. If government undertook a smaller range of discrete activities—in a small or large fashion, depending on one’s proclivities—candidates would naturally attract fewer pure quid pro quo contributions since there would be fewer political pressure points at which donors would think to aim their dollars.

This concern is, as I said, subordinate to the basic telos of the First Amendment, which is to assure a free and ample flow of information and opinion on the basis of which citizens can liberally examine public figures and issues. More money is better because more speech is better.  More speech is better because more information is better. It is the perspective of the audience, not that of the speaker, that clarifies the issue.

Of course, we might ask this: If the telos of the First Amendment is to serve the purpose of public debate, but the public believes the current regime of campaign finance is not serving that debate—in other words, if the public does not want all the ads and mailers and pop-up sites and so forth—then why is the public not empowered to regulate them?

Setting aside the argument that a persistent supply of these communications is prima facie evidence of a demand for them, the answer is that while I would oppose such regulation vehemently, the public certainly is empowered to restrict political speech. But the First Amendment is on the books. If the public wants to regulate speech, it must do so constitutionally, not statutorily.

The First Amendment can be amended. I would regard doing so as dangerous because it is the amendment that is first, because it is the amendment that is oldest, and because amending it to permit restrictions on campaign finance would entrench incumbents—who would still enjoy the advantages of incumbency—while restricting the flow of information and opinion. Nonetheless, it can be done.

What is impermissible is for the First Amendment to be balanced statutorily with interests outside it. The only balancing work that needs to be done pertains to the scope of the freedom of speech itself. That freedom, once ascertained, cannot be limited statutorily. It is to be ascertained in accordance with its purpose, which is to assure the widest possible dissemination of viewpoints in order to facilitate the examination of public characters and measures. Its telos is self-government. In a republic, that value is paramount, and must remain so.

[1] This essay was adapted from a Constitution Day lecture given at Georgetown University, September 28, 2017, as part of the Constitution Day Initiative of the Jack Miller Center for Teaching America’s Founding Principles and History.