Does campaign finance reform restrict free speech?

They say money corrupts, but your favorite candidate will find it difficult to buy a commercial without it. Is campaign finance reform a bane or boon of a healthy election?
They say money corrupts, but your favorite candidate will find it difficult to buy a commercial without it. Is campaign finance reform a bane or boon of a healthy election?

Where power goes, corruption sometimes tries to follow. Some people suspect all politicians of being corrupt. Even in democratic societies, some candid­ates find ways to trade favors to get elected. Reformers have attacked what they believe is the root cause: money.

­­They say money can't buy love, but it might buy an election. Even squeaky-clean politicians spend a lot of money to get elected. Tour buses, TV commercials and lawn signs cost a pretty penny. United States presidential candidates spend hundreds of millions of dollars on a campaign, and the numbers rise with each election. How much a candidate has -- or can get hold of -- can make or break his chances of winning.

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As a result, many people have become concerned with the power that this system can lend to the wealthy. A candidate may promise political favors to people or corporations that contribute to his campaign. To prevent the rich from gaining a corrupt, aristocratic grip over elections, legislators themselves have stepped up and passed laws limiting how people can make financial contributions and how candidates can raise money.

The most famous legislation meant to uproot financial corruption in political campaigns is the Bipartisan Campaign Reform Act of 2002 (BCRA). It restricts campaign funding and advertising. Previously enacted laws limited hard money -- donations to specific candidates. But BCRA banned soft money -- contributions to political parties for get-out-the-vote initiatives and ads that don't explicitly support a candidate. BCRA stopped parties from using soft money toward particular candidates.

Although the move to restrict campaign spending might seem like a perfect antidote to corruption, some contend that this cure will make the U.S. sicker than the disease itself. Both left- and right-leaning organizations find it unconstitutional. Some critics argue that since money is a fundamental avenue to getting the word out, limiting it hampers First Amendment rights. In the spirit of putting our money where our mouth is, let's find out how money can amount to free speech.

Money & Free Speech: Does Money Really Talk?

U.S. presidential candidates McCain and Obama are pictured at a town hall meeting. Along the campaign trail, they ask their supporters for money.
U.S. presidential candidates McCain and Obama are pictured at a town hall meeting. Along the campaign trail, they ask their supporters for money.
Justin Sullivan/Getty Images

Americans have always cherished the idea that free speech is essential for a healthy, democratic society. Freedom of speech is a stickier issue in practice than in theory. There are innumerable ways to obstruct it, and even well-meaning laws can step over the line. According to campaign finance reform opponents, meddling with how people can financially support candidates, and how much money candidates can receive, limits the speech of both supporters and candidates.

Because voters won't elect a politician they've never heard of, politicians need to advertise. Given this, candidates rely on money to buy communication. Some people argue that limiting money means limiting free speech.

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However, some proponents of reform say that the bigger issue is restoring equality to a system that unfairly favors the wealthy. Unless there are regulations, the candidate with more money can afford the bigger megaphone to reach more voters. Supposedly, this gives an unfair advantage to candidates who have more money. One theory says that reform will limit both candidates to the same size megaphone or make it harder to acquire a large megaphone. With this reasoning, the debate over finance reform comes down to equality versus liberty [source: Luckowski].

Although its advocates tout that campaign finance reform levels the playing field, opponents contend that it actually does the reverse -- it gives inherent advantages to certain groups. For instance, some people say that reform favors incumbents because it intensifies a challenger's uphill battle [source: Coleman]. Delegates already in office enjoy free perks, like name recognition, media attention and other resources to help them campaign. Meanwhile, challengers must depend on spending more on advertising than incumbents who enjoy an inherent advantage. Based on this logic, equally limiting the finances of incumbents and challengers actually gives a leg-up to incumbents.

Opponents of campaign finance reform also say that restrictions favor the media [source: Paul]. Reform limits how much candidates and their supporters spend and advertise, but media outlets enjoy unfettered and unlimited rights to publish material about candidates. People who perceive political bias in the media may also be especially concerned. For better or worse, the media influences public opinion, especially during a campaign.

Nevertheless, according to proponents, reform must do more good than harm. There are limits on free speech -- you can't yell "fire" in a crowded movie theater if there's no fire. So, doesn't a campaign's susceptibility to corruption override the right to free speech? The Supreme Court has struggled with this question a few times.

Campaign Finance Reform and the Supreme Court

The Supreme Court has been divided on whether Campaign Finance Reform prevents corruption enough to justify infringing on free speech.
The Supreme Court has been divided on whether Campaign Finance Reform prevents corruption enough to justify infringing on free speech.
©iStockphoto/Joanna Pecha

The constitutionality of campaign finance reform has been debated for decades now. The issue has made its way to the final authority -- the U.S. Supreme Court.

Back in the 1970s, Congress started passing significant campaign finance restrictions. A few years later, the Watergate scandal broke, leaving Congress with the difficult task of trying to restore public faith in public servants. So, it added even stricter amendments to the legislation. To eliminate bribery, these laws set limits on how much money people can donate to a campaign. To limit the wealthy candidates from having an unfair advantage, this legislation also set guidelines on how much money candidates can spend. The amendments also created the Federal Election Commission (FEC), an independent regulatory agency that discloses campaign information, enforces campaign finance laws, and oversees the public funding of presidential elections [source: FEC].

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The Supreme Court addressed the legislation in Buckley v. Valeo. In it, the court grappled with the challenge that limiting campaign finances also restricts free speech. The judges held that, because campaign finance reform was an important safeguard against corruption, it's within the constitutional boundaries to restrict how much money someone can donate to a campaign. It also decided that, because wealthy candidates cannot possibly bribe themselves, restricting how much a candidate can spend doesn't prevent corruption and is an unconstitutional restriction of free speech [source: Oyez].

So that brings us up to 2002, when Congress passed BCRA. As we mentioned earlier, the act increased limits on campaign contributions. It also banned political advertisements before an election to level the playing field for candidates who face a wealthy opponent.

Congress faced the scrutiny of the Supreme Court after it passed the BCRA. In McConnell v. FEC, the court upheld much of BCRA. It ruled that the need to control corruption overshadowed any minor threat to free speech [source: Oyez]. But it also admitted that "money, like water, will always find an outlet," referring to how money is intertwined with politics, and that corruption will still bubble up [source: CNN]. So, the McConnell case was a big win for advocates of campaign reform.

Later, the court found parts of BCRA unconstitutional in FEC v. Wisconsin Right to Life (WRTL). The case concerned how BCRA banned corporations from running particular campaign-related ads for the 60 days preceding an election. When the FEC went after WRTL for violating this law, WRTL sued, claiming free speech. Although the Court ultimately agreed with WRTL, it's still a complicated matter that concerns what kinds of ads should be considered free speech.

The court later definitively struck down the BCRA's millionaires' amendment in Davis v. FEC. To level the playing field in lopsided elections, the amendment allowed financial advantages to candidates who faced independently wealthy competitors. However, the court decided that any possible corruption this could prevent doesn't justify the burden on free speech.

The question about what kinds of campaign money should be protected free speech remains controversial. As it will doubtless face more debate, time will tell what the ever-changing Supreme Court will decide.

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Sources

  • ACLU. "ACLU Statement on Campaign Finance Reform." ACLU. Press Release. March 1, 2001. (Aug. 14, 2008) http://www.aclu.org/freespeech/cfr/11403prs20010301.html
  • CNN. "Supreme Court upholds 'soft money' ban." CNN.com. Dec. 10, 2003. (Aug. 14, 2008) http://www.cnn.com/2003/LAW/12/10/scotus.campaign.finance.ap/
  • Coleman, John J. "The Benefits of Campaign Spending." The CATO Institute. Sept. 4, 2003. (Aug. 14, 2008) http://www.cato.org/pubs/briefs/bp84.pdf
  • Federal Election Commission. About Us.http://www.fec.gov/about.shtml
  • Luckowski, Jean. A., Lopach, James J. "Freedom versus Equality in Campaign Finance Reform." Social Studies, vol. 93 num. 3, May-June 2002. Heldref Publications. (Aug. 14, 2008) http://eric.ed.gov/ERICWebPortal/custom/portlets/recordDetails/detailmini.jsp? _nfpb=true&_&ERICExtSearch_SearchValue_0=EJ770120&ERICExtSearch _SearchType_0=no&accno=EJ770120
  • Nagourney, Adam. "Agency Exempts Most of Internet From Campaign Spending Laws." New York Times. March 28, 2006. (Aug. 19, 2008.) http://www.nytimes.com/2006/03/28/politics/28fec.html
  • Oyez. "Buckley v. Valeo." Oyez. (Aug., 14, 2008) http://www.oyez.org/cases/1970-1979/1975/1975_75_436/
  • Oyez. "McConnell v. Federal Election Commission." Oyez. (Aug. 14, 2008) http://www.oyez.org/cases/2000-2009/2003/2003_02_1674/
  • Paul, Ron. "'Campaign Finance Reform' Muzzles Political Dissent." Ron Paul's Texas Straight Talk. (Aug. 14, 2008) http://www.house.gov/paul/tst/tst2003/tst122203.htm
  • Samuelson, Robert J. "Unfree Speech." The Washington Post. July 4, 2007. (Aug. 14, 2008) http://www.washingtonpost.com/wp-dyn/content/article/2007/07/03/AR2007070301528.html