America is worried about its democracy in this election year. The power of money in our politics, long a scandal, has now become a disaster. Elections are fought mainly on television, in a battle of endless and hugely expensive political ads, and candidates are trapped in spiraling arms races of fund-raising, desperately trying to raise more than their opponents. The New York Times estimates that the 1996 presidential race will cost between $600 million and $1 billion, that it now takes at least $5 million to run a successful Senate campaign—in some states as much as $30 million—and that even a seat in the House can cost $2 million.1
Much of that money is given in large amounts by corporations and individuals, many of whom contribute to both major parties. From January 1991 through June 1992, the Republican Party raised $34.9 million and the Democratic Party $13.1 million in “soft” money—money given to parties rather than to candidates and used for advertising the party’s message, for voter registration, and for other activities that are exempt from legal limits on contributions. By the same period in 1995–1996, those numbers had exploded; the Republican Party raised $83.9 million in soft money and the Democrats $70.3 million. The totals for each party are expected to reach between $120 and $150 million by November.2 The flow of “hard” money—money that is subject to legal limits—has also dramatically increased: in the 1994 general election, for example, Political Action Committees (PACs) donated $172.9 million to House and Senate campaigns. (The total was $20.4 million in 1976, just after Congress enacted a law, discussed below, that was intended to curb campaign contributions.)
The sheer volume of money raised and spent is not the only defect in contemporary American politics. The national political “debate” is now directed by advertising executives and political consultants and conducted mainly through thirty-second, “sound bite” television and radio commercials that are negative, witless, and condescending; these ads, in the view of the authors of a recent book, Going Negative, 3 drive political moderates into not voting, leaving the field to partisans and zealots. Television newscasts, from which most Americans now learn most of what they know about candidates and issues, are more and more shaped by rating wars, in which network and local news bureaus are pressed to provide entertainment rather than information or analysis, and by feature reporters, whose definition of success is to become celebrities themselves, with huge salaries and lecture fees, and public recognition that often dwarfs that of the politicians they supposedly cover.4
But money is the biggest threat to the democratic process. The time politicians must spend raising money in endless party functions and in more personal ways—not only during an election campaign but while in office, preparing for the next election—has become an increasingly large drain on their attention. Senator Tom Harkin of Iowa complained in 1988, “As soon as a Senator is elected here, that Senator better start raising money for the next election 6 years down the pike. Everyone here does it, and to deny that is to deny the obvious and to deny what is also on the record.”5 The great corporate contributors are not altruists or even political ideologues—the largest of them contribute to both parties—but businessmen anxious to influence policy or at least, as many corporate executives put it, to insure special “access” to high officials to put the case for their interests.
By June 30, 1996, for example, counting only contributions of $10,000 or more, the securities and investment industry had contributed $7,022,997 in soft money to the Republican Party for the 1996 elections and $5,913,511 to the Democratic Party. The largest single contributor to the Republican Party to that date was Philip Morris, which has an enormous stake in pending political decisions about cigarette advertising aimed at children; it gave the Republicans $1,632,283 through June 30—and, as a small insurance premium, $350,250 to the Democrats. Trial lawyers, on the other hand, strongly approve of Clinton’s reluctance to outlaw large damage recoveries in civil suits against corporations; and by June 30 lawyers and lobbyists as a group had contributed $4,816,436 to the Democrats and only $1,199,211 to the Republicans. The appearance of corruption is inevitable and its reality, at least in many cases, almost as certain.
The importance of money in politics means political inequality as well. Contributors to both parties tend to favor congressional incumbents. In Senate races this year, the thirteen Republican incumbents had already raised, by June 30, $19.3 million and their Democratic opponents only $4.2 million; the seven incumbent Democrats running again had raised $12 million and their opponents only $6.6 million.6 (PACs are particularly discriminating in their gifts: in the 1994 congressional races they gave an average of $1,139,222 to Senate incumbents against an average of $183,926 to their challengers and an average of $262,424 to House incumbents against $31,619 to their opponents.7 There are also sharp disparities of resources between challengers for open seats: in New Jersey, Rep. Robert G. Torricelli, the Republican candidate for the seat to be vacated by Senator Bradley, had raised $6.8 million by June 30, and his Democratic opponent, Rep. Dick Zimmer, $4.4 million.8
These differences matter: in the 1994 Senate races, winners spent on average $4,566,452 and losers only $3,358,015—a ratio of 1.36 to 1—and in House races winners spent an average of $530,031 and losers $283,431—a ratio of 1.87 to 1. Candidates with great personal wealth have an obvious special advantage. In 1994, Michael Huffington, the unknown and apparently inept Republican challenger to the popular Senator Dianne Feinstein in California, spent an astonishing $28 million of his own money, and very nearly won. Of this year’s top twenty Senate campaign fund-raisers to June 30, four are challengers who were each able to contribute or lend over $1 million to their own campaigns: Republicans James B. Nicholson of Michigan and Guy W. Millner of Georgia and Democrats Charles Sanders of North Carolina and Mark R. Warner of Virginia.9 The most important effect of financial inequality among candidates is not captured in any of these figures, moreover, because, as Senator Bradley recently pointed out, potential candidates who are unable to raise or contribute the funds needed to compete simply don’t run at all. “If you’ve got a good idea and $10,000,” he added, “and I’ve got a terrible idea and $1 million, I can convince people that the terrible idea is a good one.”10
Money is not only the biggest problem, but in good part the root of other problems as well. If politicians had much less to spend on aggressive, simple-minded television spots, for example, political campaigns would have to rely more on reporters and on events directed by non-partisan groups, like televised debates, and political argument might become less negative and more constructive. Money is, moreover, also the easiest problem to solve, at least in theory. A free society cannot dictate the tone its politicians adopt or the kind of arguments they offer the public, or what political news or scandal reporters do or do not print, or how carefully television commentators analyze what the candidates have offered or opposed. But a free society can—or so it would seem—limit the amount of money that candidates or anyone else may spend on political campaigns. Every European democracy does this and Europeans are amazed that we do not. But the Supreme Court has held that we may not, that limiting political expenditures by law would be an unconstitutional denial of free speech, in violation of the First Amendment.
Following the Watergate scandals, Congress enacted the 1974 Electoral Reform Act, which set upper limits, or “caps,” on any congressional candidate’s expenditures. But in its 1976 decision in Buckley v. Valeo, the Supreme Court declared those limits unconstitutional. 11 The Court did approve other provisions of the 1974 legislation, which imposed limits on the amounts that individuals and groups can contribute to political parties and campaigns. These permitted individuals to contribute up to $1,000 per election to a federal candidate up to $20,000 a year to a political party, and up to $5,000 to a PAC. They also permitted PACs to donate $50,000 a year to each federal candidate the support, with no limit on the total number of candidates they choose. The Court said that though these constraints limit the political activity of potential contributors in one respect, they leave them free to spend as much of their own money as they wish supporting the candidates or policies they favor in other ways—for example, by publishing advertisements for them not at their request—so that the constraint on their freedom of speech is minimal. 12
Though these limitations on contributions were once hailed as important reforms, they have proved largely ineffective. The Federal Election Commission appointed to enforce them is made up of political appointees—three from each party—and has not been zealous in its oversight. Illegal practices can often not be detected until long after the election in which they have figured, and the most likely sanction then available—fines—can be counted as simply another election expense. Soft money in particular has been used to evade regulation. A 1979 amendment to the law allowed unlimited individual and corporate contributions to political parties of money that can be used to elect candidates for state office and for so-called “party-building” activities, including renting and staffing office space, computer surveys, generic (e.g., “Vote Republican”) ads that do not explicitly support particular federal candidates, voter-registration campaigns, and “get out the vote” drives. Each of these activities has been used in aid of presidential and congressional candidates, against the spirit of the legislation, and the importance of such funds to those campaigns is shown by the huge sums of soft money they have raised. The New York Times recently called the soft-money exception an enormous loophole in the system for regulating contributions.
Another important loophole was created by a provision in the 1974 Act allowing individuals to donate up to $20,000 each to political parties. The act limited what a party might spend, from sums so raised, for direct political advertising “in connection with” a particular federal candidate’s campaign, according to a formula for each state based on the number of its voters. But in an important decision this June, Colorado Republican Federal Campaign Committee v. Federal Election Commission, the Supreme Court sharply limited the importance of those ceilings by interpreting the words “in connection with” in a surprisingly permissive way.13
Before candidates were officially nominated in the Colorado Senate race in 1986, Tim Wirth was the strong front-runner for the Democratic nomination, and the Colorado Republican Party ran a radio campaign against him, using funds in excess of its limit for spending in concert with a particular campaign. The Federal Election Commission declared that any party expenditure so firmly concentrated on a particular congressional election should be presumed to be orchestrated with the campaign of the party’s candidate in that election, even though no campaign official had requested or authorized the expense; and therefore that the Republican Party had broken the law. But though the Tenth Circuit Court of Appeals agreed, the Supreme Court reversed that court’s decision, and held that the First Amendment prevented the government from imposing any limits on what parties can spend of their own funds when these expenditures are not actually discussed with a candidate or his agents. Four justices—Chief Justice Rehnquist and Justices Kennedy, Scalia, and Thomas—went further and declared that in any case Congress lacked the power to forbid the party to use any of its unrestricted funds to promote its candidates, even in concert with their official campaigns.
Commentators have suggested a wide variety of reforms in an attempt to restore some measure of financial sanity and equality to the political process. Some of these invite candidates voluntarily to limit total campaign expenditures in return for grants of public funds for campaigning or the provision of free television time. Presidential elections are financed through such grants—this year $61.8 million to each of the two major candidates—in return for a commitment to spend no more than that sum. And the major senatorial candidates in Massachusetts—the incumbent Senator John Kerry and Governor William Weld—agreed, starting July 1, to limit their expenditures to $6.9 million each. But candidates are not required to accept these offers—Ross Perot declined the federal grant in the 1992 presidential election and spent more of his own money than he would have received; and the use of soft money and independent party expenditures greatly reduces the force of voluntary limitations anyway. As I said, this year’s presidential campaigns are expected actually to cost up to $1 billion in total, not just the $152 million paid in federal grants (including $29 million to Perot).
Other suggestions for limiting the damage of the Buckley decision apply directly to television and the other media. Max Frankel recently suggested in The New York Times Magazine, for example, that television networks be asked to provide free time for personal appearances by candidates who agree not to purchase spot commercials, or for those who wish to answer paid commercials that attack them.14 But it is doubtful that Congress would require networks to donate that time as a condition of their franchise, or that the Supreme Court would permit it to do so. Frankel hopes that the networks would cooperate voluntarily, but though the Fox Broadcasting Corporation has announced a limited program of free time for presidential candidates this year, it seems highly unlikely that the networks would accept a plan as ambitious and expensive as Frankel’s. In any case, no remedy of the kinds that have been proposed is likely to be nearly as effective as a straight legal ceiling on all campaign expenditures by candidates or parties would be, if it were held constitutional, and one of the strongest proponents of reform, Senator Bradley, recently proposed a constitutional amendment to reverse the Buckley decision.
Was the Buckley decision right in principle? If so, then it would be wrong to amend the Constitution to reverse it. It would also be wrong to try to circumvent the decision in any of the ways I have just discussed. If it really would violate free speech for Congress to deprive the public of everything a rich candidate might wish to tell it in repeated television commercials, then it must also be wrong to induce rich candidates,by bribing them with public money, to muzzle themselves voluntarily. So the present disposition of most commentators—to accept the Buckley decision and then to try to evade it—seems untenable. If we think the decision a mistake, we should explain why and attempt, in one way or another, to reverse it. If we think it right, we should stop what almost every politician now seems to endorse—trying to achieve what it forbade by other means.
Was the Buckley decision right? The Constitution’s First Amendment declares that Congress “shall make no law…abridging the freedom of speech.” These abstract words cannot mean that government must pass no law that prevents or punishes any form of speech—that would rule out laws against blackmail and fraud. Free speech must mean the freedom to speak or publish when denying that freedom would damage some other individual right that free speech protects, or when it would impair democracy itself.15 It is a premise of democracy, for example, that the people as a whole must have final authority over the government, not vice versa. That principle is compromised when official censorship limits the character or diversity of political opinion the public may hear or the range of information it may consider, particularly—though not exclusively—when the censorship is designed to protect government from criticism or exposure. So the Supreme Court has ruled, as in the Pentagon Papers case, that government may not prohibit the publication of material pertinent to judging its own performance.16 It is another premise of democracy that citizens must be able, as individuals, to participate on equal terms in both formal politics and in the informal cultural life that creates the moral environment of the community.17 That principle is compromised when government prohibits speech on the ground that the convictions or tastes or preferences it expresses are unworthy or degraded or offensive, or that they would be dangerous if others were persuaded to embrace them. So, particularly in recent decades, the Court has been zealous in protecting neo-Nazis, pornographers, and flag-burners from censorship inspired by such judgments.
Neither of these two principles of democracy is violated, however, by a legal restriction on campaign expenditures. Expenditure limits do not protect government from criticism—incumbents, as we saw, benefit more than challengers from unlimited spending—and they do not presuppose that any political opinion is less worthy or more dangerous than any other. Nor would such limits seriously risk keeping from the public any argument or information it would otherwise have: media advertising of rich candidates and campaigns is now extremely repetitive, and the message would not change it the repetitions were fewer.
In the Buckley decision, however, the Court claimed another, more general, principle of democracy. It declared that since effective speech requires money in the television age, any legal limit on how much politicians can spend necessarily diminishes the overall quantity of political speech, and violates the First Amendment for that reason. The Court conceded that capping expenditures would permit poor candidates to compete more effectively with rich ones. But, it said, “the concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment.” What reason might we have for accepting that view?
Two arguments are often made. The first supposes, in the spirit of John Stuart Mill’s famous defense of free speech, that a community is more likely to reach wise political decisions the more political argument or appeal its citizens are able to hear or read. It is certainly true that expenditure caps would limit the quantity of political speech. If a rich politician or a well-financed campaign is prevented from broadcasting as many television ads as he or it would like, then the sum total of political broadcasts is, by hypothesis, less than it would otherwise be. Some citizens would indeed be prevented from hearing a message they might have deemed pertinent.
But since the curtailed broadcasts would almost certainly have repeated what the candidate had said on other occasions, it seems very unlikely that the repetition would have improved collective knowledge. Nothing in the history of the many democracies that do restrict electoral expense suggests that they have sacrificed wisdom by doing so. In any case, the argument that curtailing political expenditure would hinder the search for truth and justice seems so speculative—and the potential cost in those values so meager even if the argument is right—that it hardly provides a reason for forgoing the conceded gains in fairness that restricting electoral expenses would bring.
A second familiar argument is very different. It insists that the freedom of speech that really is essential to democracy—the freedom to criticize government or to express unpopular opinions, for example—is best protected from official abuse and evasion by a blanket rule that condemns any and all regulation of political speech—except, perhaps, to avoid immediate and serious violence or a national disaster. It is better for a community to forgo even desirable gains than to run the risk of abuse, and the censorship of genuinely important speech, that a less rigid rule would inevitably pose. But this argument overlooks the fact that, in this case, what we risk in accepting a rigid rule is not just inconvenience but a serious loss in the quality of the very democracy we supposedly thereby protect. It seems perverse to suffer the clear unfairness of allowing rich candidates to drown out poor ones, or powerful corporations to buy special access to politicians by making enormous gifts, in order to prevent speculative and unnamed dangers to democracy that have not actually occurred and that no one has shown are likely to occur. We would do better to rely on our officials—and ultimately on our courts—to draw lines and make distinctions of principle, as they do in all other fields of constitutional law.
But though these two familiar arguments are easily countered, the Buckley decision cited another, more pro-found, argument—I shall call it the “individual-choice” argument—which I believe has been very influential among those who support the decision even though it is rarely articulated in full. “In the free society ordained by our Constitution,” the Court said, “it is not the government, but the people individually as citizens and candidates and collectively as associations and political committees who must retain control over the quantity and range of debate on public issues in a political campaign.”18 We must take some care to appreciate the force of that argument. I said that much of First Amendment law is grounded in the ideal of democratic self-government—that the ultimate governors of a society should be the people as a whole, not the officials they have elected. That principle does not seem to apply in the case of expenditure limitations, I said, because those limits are designed not to prevent the public from learning any particular kind of information or hearing any particular kind of appeal but, on the contrary, to enhance the diversity and fairness of the political debate.
But the individual-choice argument insists that instead of that apparently admirable goal justifying the constraint, it explains what is wrong with it, because any attempt to determine the character of the political debate by legislation violates an important democratic right—the right of each individual citizen to make up his own mind about what information or message is pertinent to his decision how to use his vote. Should he watch as much of his favorite candidate or party as possible, to solidify or reinforce convictions he holds intuitively, or in order to arm himself for political arguments with other citizens? Or should he watch all candidates, including those whose personality or views he knows he detests, when he would rather do something else? Should he take an interest in negative ads that deride an opponent’s character? Or should he try to follow complex political argument crammed full of statistics he knows can be manipulated?
Some people, including many who now press for expenditure limits and other reforms, have their own clear answer to such questions. They endorse a high-minded, “civic republican” ideal of democratic discourse. They imagine a nation of informed citizens giving equal time and care to all sides of important issues, and deliberating thoughtfully about the common good rather than their own selfish interests.19 But the individual-choice argument insists that those who accept that ideal have no right to impose it on others, and are therefore wrong to appeal to it as justification for coercive measures, like expenditure caps, that deny people the right to listen to whatever political message they want, as often as they want. In a genuine democracy, it insists, the structure, character, and tone of the public political discourse must be determined by the combined effect of individual choices of citizens making political decisions for themselves, not by the edicts of self-styled arbiters of political fairness and rationality. If we want to bring American politics closer to civic republican ideals, we must do so by example and persuasion, not by the coercive force of expenditure caps or other majoritarian rules.
It might seem natural to object to this argument that, in the real world we live in, people cannot make their own decisions about which political messages to watch or listen to anyway, because those decisions are made for them by rich or well-financed candidates whose advertisements dominate programming. But that objection is less powerful than it might at first seem. There is little evidence that citizens who take an active interest in politics could not discover the statements and positions of any serious candidate—that is, of any candidate who would have any significant chance of winning if every voter knew his views in great detail—if they were willing to make the effort to do so. Of course it is true, as Senator Bradley said, that voters are much more likely to be convinced by advertisements constantly shown during commercial breaks in popular programming than by the less expensive campaigning that poorer candidates can afford. If that were not true, then candidates who spent fortunes on such advertising would be wasting their money. But it does not decrease the freedom of a voter to choose for himself which candidate to watch when one candidate is on television constantly and another only rarely, provided that the voter can find the latter’s message if he searches. And it would be unacceptably paternalistic to argue that a voter should not be allowed to watch what he wants to because he is too likely to be convinced by it.
It is also true, as I said, that many potential candidates decide not to run because they are likely to lose when money dominates politics. But we must distinguish between two reasons a poor candidate might have for that decision. He might fear that voters would not learn of his existence or policies, because he has too little money to spend on publicizing them, or he might fear that even if voters did learn, he would lose anyway, because the weight of money and advertisement on the other side would make his good ideas seem terrible ones.
The appropriate remedy for the first danger, according to the individual-choice argument, is some form of subsidy for poorer candidates—direct grants to those whose opponents spend more than a specified limit, for example, or free television time for poorer candidates on special cable channels created or used for that purpose, or in specified network slots paid for from a national fund. (Nothing in the Supreme Court’s decisions would bar such government subsidies.) And according to the individual-choice argument, the second danger—that even candidates subsidized in such a way could not match the advertising power of those with enormous resources—is not one that a democracy can address through expenditure limits, because government would then be denying citizens the broadcasts they wished to watch on the ground that they should not want to watch them, or that they are too likely to be persuaded by them. Once again, these are obviously impermissible grounds for any constraints on speech.
I emphasize the apparent strength of the individual-choice argument not to support that argument, but to make its structure plainer, and to suggest that we must confront it at a more basic level, by rejecting the conception of democratic self-government on which it is based. Citizens play two roles in a democracy. As voters they are, collectively, the final referees or judges of political contests. But they also participate, as individuals, in the contests they collectively judge: they are candidates, supporters, and political activists; they lobby and demonstrate for and against government measures, and they consult and argue about them with their fellow citizens. The individual-choice argument concentrates exclusively on citizens in the first role and neglects them in the second. For when wealth is unfairly distributed and money dominates politics, then, though individual citizens may be equal in their vote and their freedom to hear the candidates they wish to hear, they are not equal in their own ability to command the attention of others for their own candidates, interests, and convictions. When the Supreme Court said, in the Buckley case, that fairness to candidates and their convictions is “foreign” to the First Amendment, it denied that such fairness was required by democracy. That is a mistake because the most fundamental characterization of democracy—that it provides self-government by the people as a whole—supposes that citizens are equals not only as judges but as participants as well.
Of course no political community can make its citizens literally their own governors one by one. I am not my own ruler when I must obey a law that was enacted in spite of my fierce opposition. But a community can supply self-government in a more collective sense—it can encourage its members to see themselves as equal partners in a cooperative political enterprise, together governing their own affairs in the way in which the members of a college faculty or a fraternal society, for example, govern themselves. To achieve that sense of a national partnership in self-government, it is not enough for a community to treat citizens only as if they were shareholders in a company, giving them votes only in periodic elections of officials. It must design institutions, practices, and conventions that allow them to be more engaged in public life, and to make a contribution to it, even when their views do not prevail. Though the question of what that means in practice is a complex one, it seems evident that at least two conditions must be met for any community fully to succeed in the ambition.20
First, each citizen must have a fair and reasonably equal opportunity not only to hear the views of others as these are published or broadcast, but to command attention for his own views, either as a candidate for office or as a member of a politically active group committed to some program or conviction. No citizen is entitled to demand that others find his opinions persuasive or even worthy of attention. But each citizen is entitled to compete for that attention, and to have a chance at persuasion, on fair terms, a chance that is now denied almost everyone without great wealth or access to it. Second, the tone of public discourse must be appropriate to the deliberations of a partnership or joint venture rather than the selfish negotiations of commercial rivals or military enemies. This means that when citizens disagree they must present their arguments to one another with civility, attempting rationally to support policies they take to be in the common interest, not in manipulative, slanted, or mendacious pitches designed to win as much of the spoils of politics as possible by any means. These two requirements—of participant equality and civility—are parts of the civic republican ideal I described. But we can now defend them, not just as features of an attractive society that perceptive statesmen have the right to impose on everyone, but as essential conditions of fair political engagement, and hence of self-government, for all.
If we embraced that attractive account of the conditions of self-government, we would have to accept that democracy—self-government by the people as a whole—is always a matter of degree. It will never be perfectly fulfilled, because it seems incredible that the politics of a pluralistic contemporary society could ever become as egalitarian in access and as deliberative in tone as the standards I just described demand. We would then understand democracy not as a pedigree a nation earns just by adopting some constitutional structure of free elections, but as an ideal toward which any would-be democratic society must continually strive.
We would also have to accept not only that America falls short of important democratic ideals, but that in the age of television politics the shortfall has steadily become worse. The influence of wealth unequally distributed is greater, and its consequences more profound, than at any time in the past, and our politics seem daily more rancorous, ill-spirited, and divisive. So this analysis of democracy as self-government confirms—and helps to explain—the growing sense of despair about American politics that I began this essay by trying to describe. How should we respond to that despair? We must understand the First Amendment as a challenge, not a barrier to improvement. We must reject the blanket principle the Supreme Court relied on in Buckley, that government should never attempt to regulate the public political discourse in any way, in favor of a more discriminating principle that condemns the constraints that do violate genuine principles of democracy—that deny citizens information they need for political judgement or that deny equality of citizenship for people with unpopular beliefs or tastes, for example—but that nevertheless permits us to try to reverse our democracy’s decline.
Is it realistic to hope that the Supreme Court will soon overrule or modify the Buckley decision? If I am right, the decision was a mistake, unsupported by precedent and contrary to the best understanding of prior First Amendment jurisprudence. It is internally flawed as well: its fundamental distinction between regulating any citizen’s or group’s contributions to someone else’s campaign, which the Court allowed, and regulating the expenditures of individuals or groups on their own behalf, which it did not, is untenable. Justice Thomas remarked in his concurring opinion in the Colorado Republican case last June that there is no difference in principle between these two forms of political expression. Thomas was right—why should Perot be free to spend a great fortune promoting his views in the most effective way he can—by running for president and spending a fortune on television—while one of his passionate supporters is not free to promote his own views in the most effective way he can—by contributing what he can afford to Perot’s campaign.
In retrospect, at least, this untenable distinction seems a compromise designed to split the difference, allowing Congress to achieve one of its purposes—preventing the corruption that almost inevitably accompanies large-scale contributions—while still insisting on the sanctity of political speech. If so, the Court’s compromise has failed, because without a direct limit on spending, any system of regulation of contributions, no matter how elaborate, will collapse, as ours has. When politics desperately needs money, and money desperately seeks influence, money and politics cannot be kept far apart.
Therefore the case for overruling Buckley is a strong one. The prospects for doing so are much less strong. Justices Ginzburg and Stevens made plain, in a dissenting opinion by the latter, their doubts that the First Amendment really does bar expenditure limits. But though Justice Thomas even more openly announced himself ready to revise Buckley, he would revise it by forbidding contribution limits as well as expenditure limits, not by allowing limits on expenditures; and, as I said, he and three other Justices argued for an even stronger ban on regulating expenditures than Buckley imposed.
But the American public is becoming increasingly angered by the political role of money. Even in 1992, before the new explosion in campaign contributions, a poll of registered voters likely to vote showed that 74 percent agreed that “Congress is largely owned by the special interest groups,” and that 84 percent endorsed the statement that “special interest money buys the loyalty of candidates.”21 If that dissatisfaction continues to grow, and the public understands that the Buckley decision prevents the most direct attack on the problem, the pressure for overruling it would intensify. If the decision were overruled, the way might be opened for a new system of regulation banning, for example, political commercials in breaks in ordinary programming, as other democracies do, and providing free television time, out of public funds, for longer statements by the candidates themselves.
In any case, even if Buckley remains, we should feel no compunction in declaring the decision a mistake, and in attempting to avoid its consequences through any reasonable and effective device we can find or construct. The decision did not declare a valuable principle that we should hesitate to circumvent. On the contrary, it misunderstood not only what free speech really is but what it really means for free people to govern themselves.
—September 19, 1996
Max Frankel, “TV Remedy for a TV Malady,” The New York Times Magazine, September 8, 1996, pp. 36–38. ↩
Leslie Wayne, “Loopholes Allow Presidential Race to Set a Record,” The New York Times, September 8, 1996, pp. A1, A26. ↩
Stephen Ansolabehere and Shanto Iyengar, Going Negative: How Political Ad erisements Shrink and Polarize the Electorate (Free Press, 1995). ↩
See James Fallow’s book, Breaking the News: How the Media Undermine American Democracy (Pantheon, 1996). ↩
Quoted in Fred Wertheimer and Susan Weiss Manes, “Campaign Finance Reform: A Key to Restoring the Health of our Democracy,” Columbia Law Review, May 1994, p. 1133. ↩
Charles R. Babcock, “Big Money for Big Senate Races,” The Washington Post, August 15, 1996, p. A17. ↩
Common Cause, “Guides to Republican and Democratic Soft Money Donors,” August-September 1996. ↩
Babcock “Big Money for Big Senate Races,” p. A17. ↩
Babcock, “Big Money for Big Senate Races,” p. A17. ↩
Wayne, “Loopholes Allow Presidential Race to Set a Record,” p. A26. ↩
424 U.S. 1. ↩
Some of the justices, dissenting in part, expressed doubts about the sense of that distinction. Justice Byron White, for example, illustrated the anomaly the distinction creates. “Let us suppose,” he said, “that each of two brothers spends $1 million on TV spot announcements that he has individually prepared and in which he appears, urging the election of the same named candidate in identical words. One brother has sought and obtained the approval of the candidate; the other has not. The former may validly be prosecuted under [the 1974 act]; under the Court’s view, the latter may not, even though the candidate could scarcely help knowing about and appreciating the expensive favor.” 424 U.S. 261. ↩
1996 U.S. Lexis 4258. ↩
“TV Remedy for a TV Malady,” p. 38. ↩
Constitutional lawyers often put the point the other way round: they say that all constraints on speech are banned in principle, and that exceptions must be justified, one by one, as special. But the vast range of acts of speech that are plainly not protected by the First Amendment makes it analytically clearer to say that it is protected speech that is special. The important point, however, is that the protection is not automatic, but must be connected to some general reason for either protecting or exempting the kind of speech in question. ↩
403 U.S. 713. ↩
See my Freedom’s Law (Harvard University Press, 1996). ↩
424 U.S. 57. ↩
For an account of the history and influence of civic republican ideas, see Law’s Republic, an article by Frank Michaelman of the Harvard Law School in Yale Law Journal, Volume 97 (1988), p. 1493. ↩
I discuss the issue more generally in Freedom’s Law. ↩
Reported in Wertheimer and Manes, “Campaign Finance Reform: A key to Restoring the Health of Our Democracy,” p. 1129. ↩