Friday, July 25, 2014

A Constitutional Amendment to "Limit" Campaign Spending Would Neuter the First Amendment

One of the most dangerous ideas to come along relating to the campaign finance issue is the call for a constitutional amendment limiting and regulating political expenditures.

In a New Jersey Star-Ledger letter (Disclose donors), Meg Kimberland asserts that "outside money" (private campaign spending) is "distort[ing] our democracy" and asks, “Who is driving democracy?” She concludes:

We need stronger disclosure laws at the state level and a federal constitutional amendment stating that governments have the right and the responsibility to regulate campaign finance. Otherwise, the answer to the question is, “Only those with the big bucks get to drive.”

Kimberland's is not an isolated voice. President Obama himself has called for such an amendment. In the heat of the 2012 presidential race, Obama said the unrestricted flow of money into campaigns "fundamentally threaten[s] to overwhelm the political process over the long run," to which I responded in The Objective Standard, "Translation, 'We politicians don’t like answering to our constituents, so we would love to insulate ourselves from the voices of the citizens we represent.'"

I left these comments to Kimberland's letter:

Meg Kimberland's "federal constitutional amendment stating that governments have the right and the responsibility to regulate campaign finance" is a proposal to invert America's concept of government of, for, and by the people. Such an amendment would essentially give the politicians the power to insulate themselves from the people, and stifle or silence dissent.

People who want to stop "big bucks" from "driving democracy" will not get to be the driver. They will simply put the politicians in the drivers seat. The idea that "outside money"—meaning, private expenditures outside the control of the politicians—should be banned is an egregious and dangerous offense to the concept of a constitutional republic based on individual rights, especially free speech rights. "Moneyed interests" are not a threat, since they are merely individuals voluntarily spending their own money advocating for their own ideas and candidates. We should fear the political class controlling what private citizens can spend on their own advocacy.

It's bad enough that campaign finance laws even exist. But a constitutional amendment institutionalizing the power to regulate private campaign spending would nullify the whole purpose of a constitution, which is to define and delimit the power of the government to interfere in private lives. The purpose of the constitution is to protect the people from the politicians, not the other way around. Such a constitutional amendment would hamper challengers to incumbents, and instill fear of reprisals based on trumped-up campaign finance "violations." It is a proposal for state supremacy.

It is not just how much can be spent, but how it is spend that politicians will get the power to control. As Steve Simpson points out in his article on Dave Brat's victory over Eric Cantor:

    [C]ampaign finance laws will destroy freedom of speech if we let them. There are many ways to see this point. One is to pay attention to what supporters of the laws actually say [addressed earlier in the article]. Another is to look at how the laws operate in practice. I give examples of both in my Breitbart op-ed, but here’s another. According to news reports, while Brat didn’t raise much money, he did get a lot of help from key conservatives like Ann Coulter and Laura Ingraham, and from many groups who supported him on talk radio, Facebook, and Twitter. All of this support could be limited under campaign finance laws, because it is all valuable to candidates. And the proposed constitutional amendment the Judiciary Committee considered last week makes clear that it would cover such “in-kind” contributions and expenditures as well as cash outlays.
    That’s standard for campaign finance laws. They have to apply to anything of value that a person might give to a candidate or spend on his behalf, because if they were limited to cash, people could evade them by contributing goods or services instead. And such laws have to apply to all forms of speech, because any form can be used to benefit a candidate or get him elected. That’s why the law in Citizens United applied to a film and why the government’s lawyer admitted during oral argument it would apply to books as well. Applied logically, the laws would have to extend to the media as well.

Simpson also points out that politicians in power will always seek to limit "excessive" campaign spending of their ideological opponents, and give a pass to supporters. 

The power to limit equals the power to decide how much, how, and whom to limit. The First Amendment would be neutered.

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