In the landmark case McCullough v. Maryland, Chief Justice John Marshall wrote that “the power to tax is the power to destroy.” This maxim hasn’t escaped the notice of state Rep. Chuck Isenhart (D-Dubuque), an advocate of tax funded campaigns.
A state cannot simply ban all private contributions to candidates or causes. Such a law would certainly violate the associational and speech rights recognized in the First Amendment. Isenhart, no doubt mindful of how private donors supposedly undermine his goal of requiring the government to subsidize political campaigns, has suggested a novel idea.
He’s simply proposing to tax every contribution over $250 to any campaign or political action committee at a rate of five percent. His bill, House File 140, would also tax independent ads by political groups at five percent.
Whenever the state taxes something, citizens end up with less of it. Virtually everyone accepts this economic principle. It’s why right-wingers tend to support “sin” taxes on alcohol and pornography and left-wingers tend to support tobacco taxes. Both sides want to raise the price of “unacceptable” behaviors and price the “bad” products out of the market.
But why are political donations a “bad” activity, rather than a cherished constitutional right?
The American Republic depends on an active, engaged citizenry to thrive. And donors are among the most active and engaged voters in the country. In fact, until the 1986 tax reform, the federal government actually gave money via tax credits (up to $50 per filer, $100 on a joint return) to donors specifically to encourage more involvement in the political process.
Political donations only become “bad” when they become a corrupting influence on legislators. But a host of other tools are available for dealing with corruption concerns. In Iowa, contributions of more than $25 are required to be publicly disclosed, allowing reporters and citizens to hold candidates accountable for the donations that they receive.
A tax on donations has only one purpose: to reduce the amount of campaign contributions. This is hurts challengers to incumbents (such as Isenhart). PACs and opposition campaigns need as many donors as possible to raise cash to oust incumbents, who typically have an easier time raising money for re-election by virtue of their established fundraising networks. Isenhart’s donation tax would mean more job security for incumbents and less money for divergent viewpoints or candidates.
Americans shouldn’t tolerate a tax on their right to speak. And donations are a form of speech. In fact, donations are a form of political speech, a highly protected class of speech under the First Amendment.
A donation, like speech, is a way to participate in the republican process. A donation, like speech, is a free choice; an individual is not compelled by anyone to act. A donation, like speech, is a way to express political beliefs and associate with political movements.
We wouldn’t allow our governments to force us to pay up for our spoken words advocating for a candidate. And no doubt, too many Americans would end up going silent and dropping out of the political dialogue. So why would Assemblyman Isenhart’s proposal be any more sanguine for our body politic?
The Supreme Court has upheld many campaign finance laws as constitutional, from donor disclosure, to limits on donations, to an independent agency to monitor elections. But the Court has also held, time and again, that chilling, or stifling, speech is unacceptable.
Isenhart’s tax on speech is nothing if not chilling.
