Bloomberg: How Money Became Speech (In the News)

Bloomberg: How Money Became Speech

By Justin Fox

[E]ver since its ruling in Buckley v. Valeo in 1976, the court has held that the regulation of campaign spending is constrained by the First Amendment’s instruction that “Congress shall make no law … abridging the freedom of speech.”…

[I]n 1976, the Supreme Court let stand the part of the bill that arguably did the most to entrench incumbents – the limit on contributions – while declaring the spending limits to be unconstitutional restrictions on speech…

It’s hard to disagree with Kavanaugh’s assertion, made in a 2002 memo that was released last week, that this “creates problems for candidates when they are hampered by contribution limits and outside groups are not.” Less likely to meet with universal acclaim is his assertion that “the way to fix this … is to eliminate contribution limits, not to regulate the groups.”

Still, to a certain extent, that would be the logical outcome of Supreme Court decision-making on campaign finance since Buckley v. Valeo. Would it be the right outcome? There’s a line of libertarian thinking, present in the work of [Ralph K.] Winter and others in the 1970s but expressed more strongly in subsequent analyses such as Capital University Law School professor Bradley A. Smith’s “Faulty Assumptions and Undemocratic Consequences of Campaign Finance Reform” in 1996, that holds that all attempts to regulate campaign spending only make things worse. But all we actually know is that, within the constraints imposed by the Supreme Court in 1976 and subsequently, it’s almost impossible to craft effective campaign regulation.

The Center for Competitive Politics is now the Institute for Free Speech.