Monday, March 15, 2004

THE CAMPAIGN FINANCE LAW AND CONSTITUTIONALISM
Since the passage of the campaign finance law, there’s been concern expressed in some quarters about the law’s potential effects. Many fear that the law will stifle common “free” speech activities like donating millions of dollars to a political party with the expectation of nothing in return. These expressions of “free” speech are purely ideological and not business transactions, as we all know.

Given the unprecedentedly early barrage of attack ads, if the law has stifled “free” speech, it’s barely perceptible.

The common argument against the law is less with the law’s specifics than with the mere principle of regulating “free” speech. After all, why does the government have the right to tell me I can’t donate my money however I want?

The answer is very simple: the government has a compelling interest in ensuring the representatives of the people actually represent the people they are elected to represent. I know this will elicit waves of hysterical laughter. But this is the principle. And since we’ll give everyone the benefit of the doubt and assume they’re operating on good faith, let’s go with this theory.

Why should the government have the right to regulate the “speech” of political donations but not other kinds of speech? (Of course, they do regulate other kinds of speech but that’s another essay.)

The answer is very simple, and may mollify strict constitutionalists. They are only two crimes for which a federal official can be impeached that are explicitly mentioned in the federal Constitution. One is treason. The other is bribery.

To follow the anti-campaign finance regulation crowd’s reasoning, I should be able to walk up to my Congressman and say, “If you pass a law making my birthday into a federal holiday, I will donate $100,000 to your re-election fund.” After all, why should the government regulate how I spend my money?

The answer is Article 2, Section 4 of the US Constitution. The Constitution states unambiguously that the government has an compelling interest in deterring treason and bribery as well as the ill-defined “high crimes and misdemeanors.” If Congress can have laws trying to deter treason without popular objection, then why is there such an uproar with them doing the same to try to deter bribery?

Admittedly, such bribery will still occur. But few of the law’s critics oppose it because it’s too weak. Those who want to use money to buy influence, I mean “express their ‘free’ speech rights,” will always find a way to do so. But there’s no reason we can’t make it more difficult. Although such bribery will still occur, hopefully the law will deter the most brazen acts. I’m not holding my breath, but it’s worth a try.

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