November 16, 2011 columns

Shouting Louder: Equality in Campaign Finance

Samples discusses the conflict between freedom of speech and equality with regard to campaign finance laws.

Bradley Smith recently spoke at Case Western Reserve Law School about “Saving Elections from Politics: A Doctrine of Separation of Campaign and State.” At 53:30, an audience member asks whether the First Amendment gives anyone the right to “shout louder” in pursuit of votes. The questioner contrasts the equality of one person-one vote with “shouting louder” which suggests inequality in speech. For the questioner, this inequality indicates the need for limiting free speech. The Occupy Wall Street protesters have indicated similar sentiments in harsher terms.

To assess the questioner’s proposal, let’s begin with the law. In 1976, the U.S. Supreme Court said that limiting spending on political speech violated the First Amendment; by limiting how much you could spend on speech, you inevitably limited the amount of speech uttered, thereby violating the First Amendment. So the questioner is actually proposing an unconstitutional act by the government.

The Court also concluded that making speech more equal could not be a legitimate reason for regulating campaign funding: “But 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, which was designed to secure ‘the widest possible dissemination of information from diverse and antagonistic sources,’ and ‘to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people.’” In other words, inequality means some people are speaking “too much” or as the questioner says, speaking too loud. To achieve equality at any margin, the government would have to prevent those who speak too much from speaking or from funding speech.

Such are the inevitable limits on free speech mentioned by the questioner. In this direct conflict between free speech and equal speech, the Court came down in favor of the former. The Constitution does forbid abridging the freedom of speech. It does not promise equality of speech or equal funding of speech. While the Constitution does embrace the principle of one person-one vote in some venues, it does not include a general right to votes of equal weight. If it did, the U.S. Senate would have been declared unconstitutional. Free speech has a stronger constitutional grounding than equality of political influence.

What about enhancing equality of speech through subsidies rather than through restrictions? The Court has validated financing of campaigns through taxation. Everyone could spend what they wanted while designated candidates would receive additional sums from the government for campaigning. If the subsidies were large enough, all things being equal, the scheme could achieve equal spending on campaigns. If the subsidies were smaller, it might lessen the inequality between the subsidized and the non-subsidized candidates. Would this system lessen inequality without restricting liberty?

Yes and no. By definition, the system outlined above would not restrict spending on speech. However, the taxes necessary to fund the subsidies would come from taxation which is not voluntary. Citizens would not be free to spend the money taxed away. But the infringement on liberty goes deeper than that. Taxpayers are forced to fund speech by others. That coercion is bad even if you agree with the speech you are forced to fund. But inevitably taxpayers will be forced to support speech they oppose. Tax financing of campaigns is a lot like establishing a religion: citizens are forced to act contrary to their deepest convictions in service to some alleged greater good. I assume that such compulsion has no place in a liberal society.

The United States tries to avoid this coercion by making contributions to the presidential public campaign fund voluntary through a tax checkoff device. The tax checkoff is really an earmark; supporting the fund does not increase or decrease your taxes. For some time, over 90 percent of taxpaying households have not checked the box on their tax form. Almost everyone refuses to support public funding of presidential campaigns even when the marginal cost of that subsidy to them is zero. To garner enough money to achieve more equal spending on campaigns would require coercion. There is no easy way out for egalitarians.

In politics, equality of speech and freedom of speech are irreconcilable values. To make politics more equal, you have to limit free speech, as Brad Smith’s questioner indicated. Many Americans are willing to pay that cost in coercion as long as the speech in question involves the liberties of “the one percent” or whomever. I suspect, however, that people eager to restrict the liberties of others would see things differently if they thought their liberties were at stake in campaign finance matters. We are fortunate to have a Constitution, and for now, a Supreme Court, that reflects the actual desires of even the most illiberal among us.