Activists have learned how to use Title IX to suppress free speech.
The Case for More Money in Politics
Should a democracy, in the name of combatting political corruption, and in the name of equal participation in politics, regulate the formation of political opinions—or should it be guided by the principle of the free formation of opinion that emerges spontaneously in society?
The phrase “campaign-finance reform” assumes a premise: that the way American political campaigns are run needs reform. Specifically, it assumes that the problems in our political discourse are principally ones about who pays for campaigns. These problems are alluded to, in breathless tones, as “money in politics,” or “dark money,” or, most glibly, “Citizens United.”
Consider, though, that there isn’t a problem with “money in politics” unless there is something bad that “money in politics” does. Rather than assuming a premise of reform, we ought to step back and consider whether or not campaign finance needs reforming. As we evaluate competing justifications for reform, we should be mindful, as citizens of a nation built upon regular and meaningful elections, that these be regulated to do the least damage to our constitutionally guaranteed rights, that is, to the open exchange of political views. As we will see, this priority is largely lacking in today’s reforms, whether existing or proposed.
Publius, the First Campaign-Finance Reformer
The natural state of political campaigns arises spontaneously. Political candidates decide to run for office—sometimes out of their own desire, sometimes at the behest of, or with encouragement from, others. They need money to do so. They use their own resources or ask others to contribute, to help them pay for pinbacks and yard signs, for polling and travel, for the purchase of television advertisement, for paying campaign staff.
Sometimes, people contribute money to candidates. At other times, they contribute their time. They volunteer to knock on doors or make phone calls. Still others spend their own money printing fliers or producing their own television advertisements to promote the candidate.
Allowing for occasional developments in media platforms or preferred strategies, campaigns have largely looked the same for over 200 years, as even a cursory examination of presidential elections demonstrates. In 1796, Democratic-Republicans and Federalists engaged in heated rhetoric and printed tens of thousands of pamphlets to influence the outcome of the presidential election. Jefferson was called a demagogue whose supporters were “cut-throats who walk in rags and sleep amid filth and vermin.” Adams was mockingly referred to as “His Rotundity” and as an “avowed monarchist.”
Then, as now, political campaigns were passionate and emotional. Political operatives used tactics that were manipulative or questionable, to the dismay of many in the electorate who expected or at least wanted a more elevated discourse. George Washington’s Farewell Address is a beautiful exhortation to avoid divisive rhetoric among political factions and to work toward the common good in our political process. Alas, its aspirational call has not always been heeded, given candidates’ and parties’ pragmatic preferences, the expediency of doing what works, and the scarcity of politicians evincing Washingtonian levels of restraint and decorum. The saying of the cheerfully cynical Martin Dooley, Finley Peter Dunn’s character—that “politics ain’t beanbag”—more closely resembles how these races tend to be conducted.
The nastiness of the rhetoric would not be a good justification, of course, for silencing speech or “reforming” political campaigns. Harsh as these public debates may be, it would be far worse if they couldn’t be conducted, or if we were hampered in any significant way in our attempts to discuss politics. Our First Amendment, Robert Bork eloquently explained, offers a powerful limitation on federal power precisely so that we may freely engage in political speech and press. Only a truly grave threat to our democracy would be adequate justification for stifling political discourse.
Perhaps, suggest the proponents of campaign-finance reform, the possibility of corrupting a candidate on his or her way into public office rises to that level of gravity. The problem is that corruption is susceptible of multiple definitions. It might be narrowly defined as bribery, or something less than bribery, or the attempt by campaign contributors to secure a political quid pro quo. Or it might be broadly defined as anything that creates a conflict of interest or the appearance of one.
The U.S. Constitution anticipates politicians’ lust for power, their vulnerability to influence, and the dangers of abuse of power. But it offers a different solution—structural. Publius explained in Federalist 51 that the form of government would oblige government “to controul itself.” Political officials would face frequent reelection—two years for members of the House, four years for the President, and six years for senators. Power would be divided among the two political branches, and the two would check one another. Over all, the government would be one of enumerated powers, further limiting the reach of corrupting influences on politicians.
The Framers’ preferred anti-corruption solution, then, exists within this framework. Politicians will only be able to do so much, because the Constitution hems them in. They will watch each other, as the branches hold powers to check one another—including impeachment, vetoes, bicameralism. And they will be held accountable directly to the people every few years. Men are not angels, Publius acknowledged. The liberty of the people would not be secured because it had made men virtuous (it hadn’t), nor would it ensure that only virtuous men would govern (it never could ensure this). Indeed, Publius pointedly says that any attempt to control the virtue of men would be futile; instead, structuring the government in this way stood a chance of neutralizing or containing corrupt acts by those who governed.
By now, as we know, a government that was once of enumerated powers has grown exceedingly powerful, and many in our federal government have long since abandoned any serious attempt to adhere to the Constitution’s framework. Elected officials have incrementally ceded their power to unelected administrative agencies, creating perpetual government bureaucracies largely unaffected by any particular election. These agencies insulate politicians from making difficult decisions for which their constituents would have wanted to hold them accountable. And these agencies exist because of a commingling of power across the political branches, further diluting accountability. They have often been captured by special interest groups, the groups most likely to be affected by their regulations, and remain largely impervious to serious public scrutiny.
Then, too, the executive and judiciary increasingly engage in activities that look like lawmaking—the judiciary being wholly independent of electoral accountability—and this further shrinks the role of our legislators. To top it off, the federal government consumes more resources than ever. It once consisted of about 3 percent of GDP in the early 20th century; today, it is typically between 20 and 25 percent.
Hence it is understandable that our election system, too, appears more dysfunctional than it may have appeared in the past. Indeed the average voter’s ballot matters less each year, as the population increases and our representatives remain fixed in number. Our representatives’ roles are diminished in terms of lawmaking, or, simply put, the stuff we’d expect them to do. At the same time, the federal government oversees a vast network of agencies, regulations, and tax dollars, at least some of which are controlled by elected officials. The incentives are aligned for the most-regulated to spend increasing sums of money to even marginally affect our colossal government bureaucracy.
The Framers would have used the size, scope, and structure of government to check the risk that our representatives would engage in corruption, or that conflicts of interest would tend to corrupt the relationship between constituents and representatives. How our appetite for more and more government could be reconciled with our desire to see purer and nobler elected officials is a novel challenge.
Is Money Speech?
To return to the campaign reformers’ liking for external fixes, perhaps the cure might be to try to make politicians as virtuous as possible by eliminating, or at least minimizing, external sources of corruption. Those sources are not, proponents of reform argue, simply friends out in the private sector contacting office-holding friends for favors, but citizens out in the private sector making contributions to political campaigns, in some cases spending substantial amounts of money in support of a given candidate.
But one might distinguish different regulatory efforts: monetary and non-monetary. To whom does the political candidate owe a greater debt, the contributor who has given $3,000 (enough for a few hundred yard signs or a few commercials broadcast on local television), or the contributor who has knocked on door after door as a canvasser, 12 hours a day, for several straight weeks? The contributor of $4,000, or the phone-bank operator making 50 calls an hour to likely voters night after night? Look back at those pairs. In each, the former is a federal offense (the current federal contribution limit is $2,700 per candidate per election) while the latter is largely unregulated.
Proponents of campaign-finance reform recognize that they are only going after one thing: money. In some ways, this is to their credit. After all, providing cash is the thing that looks the most like outright bribery. Cash is nearly limitless for some people—the wealthiest Americans—whereas time is a limited resource for everyone. Cash is a fungible commodity good for any number of aspects of a political campaign. The reformers’ bedrock justification here is that, anyway, regulating the cash isn’t regulating speech. It’s just regulating campaign finance.
That isn’t right. Political campaigns are essentially about speech. Political candidates spend substantial time and effort persuading people to vote for them, debating matters of public concern, and advertising to the public. No, money isn’t literally speech, but it is used to facilitate political speech. As Professor Eugene Volokh has ably explained, we would hardly move to cap private school tuitions at $2,700 and justify it by claiming only to regulate money, not education. We wouldn’t limit spending on attorneys to $2,700 and justify it by saying we were only regulating money, not access to lawyers.
A limit on money in campaigns operates indirectly as a restraint on speech.
A response might be that candidates simply have to make do with a cash-poor campaign: walk around public parks, step up on soapboxes, go out and knock on doors in the neighborhoods. But it is strong medicine to cut off the means of engaging in political speech, to stifle the stuff at the heart of the First Amendment.
It is something Congress has attempted to do.
A Landmark Case
After President Nixon’s resignation during the Watergate scandal—which had significant campaign-finance aspects—Congress confronted the issue of reforming the financing of political campaigns. It initially sought to regulate the major chokepoints of the campaign system in the 1974 amendments to the Federal Election Campaign Act.
First, Congress would restrict contributions, mostly those from individual citizens to candidates and political parties, but also coordinated activities between, say, a political action committee and a candidate, which would function largely as a contribution to that candidate.
Second, it would restrict expenditures—the monies laid out by the candidates to mount their political campaigns.
Lastly, it would create a system for publicly funding campaigns that would permit presidential candidates to run on roughly equal terms without needing to rely on a network of wealthy donors. The provisions would work together. By making it difficult to raise or spend large sums of money, candidates would be channeled toward public funding.
Forty years ago, the Supreme Court evaluated the constitutionality of this system in its sprawling analysis in Buckley v. Valeo (1976). The opinions in that case span 294 pages in the U.S. Reports. The principal opinion was written per curiam, without a named author. The legacy of this decision lives on. And while there is much more that could be discussed—the Federal Election Commission and its 1975 creation and composition; disclosure rules; nuanced regulation of groups like political parties and political action committees—we shall focus on the major points.
The Buckley majority opened by recognizing Americans’ interest in keeping their political system free of corruption, suggesting its concern was really about the risks of quid pro quo but ostensibly including the wider category of conflicts of interest. But it went a step further and acknowledged that even the appearance of corruption is a sufficient reason to regulate campaign finance. After all, the Court reasoned, if the public perceived that the election process was corrupt and voters lost faith in the process, government could and should act to restore that faith.
It is fairly strong stuff to say that public perception, however inaccurate or misguided, would license government to tread upon political speech. Nonetheless, corruption and its appearance have been the Court’s guiding stars in evaluating governmental interests in this area.
The Court recognized, on the other hand, that limiting a candidate’s expenditures reduced the quantity of political expression; it found that such limitations ran afoul of the First Amendment. While preventing corruption may be an important interest, to cap political expression was too great a cost and hardly a sufficiently narrow means of advancing that interest. Further, how could an independently wealthy candidate be corrupted by spending money on himself?
Expenditure limits have been uniformly struck down since Buckley.
The Court viewed limits on contributions differently, though. To limit these, the Court reasoned, would be primarily to limit a citizen’s means of associating with a candidate—and to do so in only a sort of symbolic way. Giving even a dollar to a candidate demonstrated your association with that candidate’s campaign; higher sums of money simply reflected the intensity of your support. Limiting contributions did not really limit speech very much, the Court reasoned. The Buckley Court disallowed putting compulsory caps on expenditures, which enabled candidates to collect money from as many people as they wanted and spend as freely as they were able. Therefore, the Court thought, some control of the amounts collected per contributor would be permissible, including the contributions at issue in Buckley.
In conceiving of the act of making a contribution as a symbolic act of association, the Court did not seriously consider that giving money to a political candidate to speak on your behalf was the interest at stake. The Court would generally not, after Buckley, wade into these murky waters to throw out low contribution limits for being too severe a form of regulation. Today, an individual may contribute $2,700 to a candidate for federal office in a primary election, and another $2,700 in the general election. While it is a large sum to the average American, it is a paltry figure given the billions spent each campaign cycle. And, as with all line-drawing, it is hard to determine why $5,400 in contributions in a multimillion dollar campaign would not risk corruption, but $5,401 would.
The Court’s finding also had two somewhat unanticipated effects, the usual result of government regulation and judicial refinement of laws. First, it dramatically increased the amount of time that politicians had to spend fundraising. With limitless spending but only small sums that could be given per contributor, politicians began to dedicate more and more of their time courting donors.
Second, it began the slow death of the publicly funded presidential campaign. Candidates would voluntarily forego the time-consuming process of raising money on their own and opt into a publicly funded presidential campaign if they did a little fundraising to demonstrate serious public support. For many years, candidates saw this as a worthwhile trade, exchanging time spent fundraising for time spent campaigning if they abided by spending limits that were voluntary, not compulsory.
But by 2000, candidate George W. Bush opted out of public financing for the presidential primary, after which virtually all serious candidates have done so. In 2008, Barack Obama became the first presidential candidate to opt out of public financing for both the primary and the general election. This plunged the final dagger into the public financing system, which remains useful only to candidates representing minor political parties who seek modest sums of money to make their runs.
Reform proponents insist that the Court’s First Amendment jurisprudence ruined Congress’ finely tuned system, as the exorbitant amounts being spent by campaigns each political season is the real problem these reforms sought to fix. They argue that the Court should have left compulsory spending limits in place. But, again, we go back to the premise: What problem was being addressed? Corruption? Even in self-funded campaigns? And even at the cost of silencing political speech?
Indeed, the corruption rationale has looked rather weak given its obvious under-inclusiveness. Consider the influence that lobbyists have on the political process year-round, not just during campaign season. They involve themselves in the actual legislative process, with actual legislators—not simply offering support to prospective legislators, many of whom will not win election. They can curry favor with politicians, and with their long-term staff responsible for drafting and reviewing legislation.
It is a reason courts are understandably skeptical of the justifications proffered by legislators seeking to write laws regulating campaign finance. Are they not largely writing the rules for themselves—and for any prospective challengers? It is just about the worst thing in the world for an incumbent when he or she faces a well-financed opponent, one who may have sufficient resources to mount the kind of campaign that effectively persuades the people to vote for the challenger instead.
It is this curious relationship between the regulations and the regulations’ objective that remains today. The regulations are not really about political campaigns. They are about corruption and, more specifically, the corruption that would occur mostly after a candidate won elective office and used that office in a corrupt manner, on account of the cash he or she received. The political campaigns in this sense are not even the problem but simply the unfortunate target. And given that campaigns themselves don’t really seem to be the problem, restrictions on our political discourse may not be the best way of curbing corruption.
Enter the Equalitarians
Another rationale that has received much more attention recently from reform proponents is the notion of advancing political equality. It is a basis that the Court has largely rejected, from Buckley through today, but it remains a major preoccupation of reformers.
One might view political campaigns as inherently problematic, from the perspective of our Constitution’s equality guarantees, because one speaker has more resources than another. The speaker with more resources gets to speak more loudly or more frequently than the one with fewer resources. Perhaps, one might argue, political campaigns should be participated in on a roughly equal basis, regardless of one’s resources, and mechanisms should be designed to bring this about.
Note that this interest is specifically about campaigns, unlike the more indirect concern about corruption rearing its head after the votes have been counted and the officeholder sworn in. As such, any mechanisms put in would be more direct—they would be put in to try to control the election process itself. This is a problem, as is the fact that reformers’ intentions have more to do with equal results than with equal opportunity. In this instance there is no attempt to argue that we, the people, lack the opportunity to equally participate in our democracy, or that candidates cannot speak and spend as freely as they desire. The complaint being raised is that not everyone has the resources to participate equally.
Of course, “equally” presumes that some baseline is discernible by central authorities planning out our political dialogue. Should the Green Party’s candidate, typically earning 1 percent of the vote in an election, be allotted the same level of resources as the Democratic Party’s candidate, typically earning 50 percent of the vote (at least)? The same amount of airtime? Or, should we ensure that the Green Party only gets 1 percent of the resources and the Democratic Party candidate 50 (at least), equal to what they’ve “earned” in the past?
The notion that government would decide how to equalize political campaigns creates far more questions than it answers. Consider, too, that our system has naturally gravitated toward some equality, without needing a regulatory nudge—at least in some respects. For instance, political debates are often administered by media entities that develop often intricate criteria for “serious” candidates, and that invite candidates to participate with a view to wider inclusion. Debates organized along these lines are often the most significant events in a political campaign.
Even attempting, through governmental regulation, to “make political campaigns equal” would likely fail in a number of obvious ways.
First, campaign-finance reform targets finance and leaves alone non-pecuniary forms of contribution. Contributions in the form of time spent making phone calls or knocking on doors remains effectively unregulated—and can be dramatically unequal among political candidates.
Second, the “equality” reformers propose nothing (so far) with regard to media coverage of campaigns where, to put it mildly, unequal treatment is the rule rather than the exception. The colossal inequalities in this respect have been clear during the rise to the front of the GOP presidential pack by Donald Trump, whose frequent “earned media” (read: he didn’t spend any money) on major television stations and national radio shows has given him a dramatic advantage over his competitors. In any case, proposals as to instructing the broadcast networks or cable channels on how to air their programming would not likely get too far.
Except that such proposals did get adopted by the federal government once upon a time. America has actually experimented with political equality: the Equal Time Doctrine and the Fairness Doctrine. They failed spectacularly, because they actually worsened our political discourse.
How Not to Force the Media to Be Fair
In 1927, Congress passed a radio act requiring broadcasters to give equal time to all political candidates running for an office if one political candidate received air time, commonly known as the Equal Time Doctrine. And in 1949, the Federal Communications Commission instructed holders of broadcast licenses that they must present both sides of controversial matters of public concern, including political matters, under the Fairness Doctrine. The airwaves were scarce, the FCC reasoned, and it needed to ensure that license-holders would only keep their license if they provided equal time to all points of view.
In both cases, government regulators believed the system would encourage political speech to flourish. But rather than creating a more robust political dialogue, these measures had the exact opposite effect. They chilled speech because radio and television stations, nervous of being cracked down on by the feds, steered clear of political discussion and debate. In 1960, for instance, stations wanted to broadcast a presidential debate between John F. Kennedy and Richard Nixon. But they couldn’t—not unless they permitted every minor party and independent candidate, more than a dozen, to appear, too. The networks planned not to hold a debate until Congress swooped in to exempt WBBM-Chicago and the rest of the CBS network for the Kennedy-Nixon radio and television broadcast. Only the removal of the regulation enhanced political dialogue.
The Equal Time Doctrine has by now become nearly a dead letter—it almost exclusively extends to a just few broadcast television stations and exempts most of those shows as “bona fide news” programs. As for the Fairness Doctrine, in 1987, the FCC, confronted with a large accumulation of evidence of its chilling effect, repealed it. Ample alternative, and unregulated, avenues of speech existed—including a soon-to-explode market in cable television programming.
In short, trying to force political equality to exist in the United States doesn’t work. Moreover, even if more creative alternative solutions for political equality were proposed, the questions would still be there. Among them: What is the baseline against which equality is to be measured?
Often, reformers decry the wealthy billionaire spending his fortune to get the people to support the billionaire’s preferred candidate or ballot measure. Shouldn’t, reformers argue, political speech roughly track popular support and not be distorted by the wealthy outlier? Perhaps. However, the dissenting or minority voice is precisely the one in need of more time, effort, or resources if the people at large are to hear and be persuaded by that voice.
Trying to make speech roughly equal in some way is especially dicey given that, when it comes to little-known but potentially fruitful ideas, we may well want some actors to speak more. To the extent that one’s political speech be allotted according to how much public support one’s position currently enjoys, there is a stickiness of support. Once voters have an early instinct about a candidate or an initiative, minority views are less likely to carry the day. It is only through robust and spirited debate that a minority can persuade over time.
Last but not least, equality-based campaign-finance reform proposals presume a deep mistrust in the voting public. Our republic is built upon the notion that, through debate and dialogue, we can reach decisions about who should represent us. If we, the people, are so easily manipulated into changing our minds because of a few dollars spent by a few wealthy people, then we face something far worse than the inequality of campaign finance. Representative democracy risks collapse if we are incapable of evaluating the claims made over the course of a political campaign.
Where we end up is in fact where we began, with the reality that political campaigns can be nasty and brutish. Campaigns reflect different intensities of support. Speakers may have advantages or disadvantages of various kinds: an abundance of money and volunteers (or a lack thereof); access to media outlets (or a lack thereof); a compelling or less-than-compelling way of presenting ideas to the electorate. Proposals to regulate the process to make it more clean, or more “equal,” are in most cases worse than the real or perceived problems such regulations seek to address.
 In the summer of 1972, supporters of President Nixon’s re-election campaign broke into the Democratic National Committee’s headquarters in Washington, D.C. to tap their phones. The ensuing investigation found that the burglars received tens of thousands of dollars that had been earmarked for the Nixon campaign.