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For most candidates for political office, support of campaign finance reform has today come to rival baby kissing as a means of currying favor with the electorate. The express purpose of campaign finance reform is two-fold: to provide a level political playing field, where those possessing economic power are unable to bully those who lack it, and to deter corruption and the threat to the integrity of the democratic process that inexorably derives from the presence of large money in a political campaign. Both concerns strike a fundamental chord in the American soul. While the McCain-Feingold legislation, designed to tighten up some supposed loopholes in post-Watergate campaign finance laws, appears to have been put on hold for the moment, rest assured that it will return. As compelling as the arguments in support of campaign finance reform may appear to be, they are dangerously and fatally flawed. The simple fact is that most forms of campaign finance reform constitute a frontal assault on the free expression protected by the First Amendment. Underlying that constitutional provision is the premise that an effective democracy demands a well-informed electorate. In the course of a political campaign, the electorate is exposed to a wide array of information and opinion concerning both candidates and issues, and a good portion of it comes from the candidates themselves. Were the electorate to know little or nothing about either candidates or issues, their votes would differ hardly at all from a game of blindfolded pin-the-tail-on-the-donkey (or elephant) — hardly the way a thriving democracy should operate. To be sure, much of the communication made available during a campaign is partisan, incomplete or poorly reasoned, but the inescapable effect of the restriction of a candidate’s ability to spend or a private individual’s ability to contribute is to restrict severely the candidate’s ability to reach the electorate. In short, if money talks, restricting the use of money for expressive purposes silences. Thus, some of the most fundamental values protected by the right of free speech are directly undermined by the substantial restriction of campaign spending and contributions. Nor can these dramatic restrictions on political expression be justified by the interests of assuring equality or avoiding corruption. Numerous candidates possess important noneconomic advantages over their opponents because of such factors as politically powerful friends or previous celebrity. Financial resources can often equalize these advantages. In certain instances, then, it is actually the presence of economic power that levels the playing field. To the extent that restrictions bring about equality, it is an equality of voter ignorance — hardly a result consistent with the values and traditions of the First Amendment. As for eliminating corruption, it is unclear why existing bribery statutes do not suffice for that purpose. In any event, there has never been any hard empirical showing that the problem of quid pro quo arrangements is today a significant one throughout the nation. ‘BUCKLEY’ DIDN’T HELP In its 1976 decision in Buckley v. Valeo, the U.S. Supreme Court held that restrictions on a candidate’s spending violate the First Amendment, but that restrictions on the level of private contributions are constitutional. It reached this conclusion in spite of the fact that it does not take a rocket scientist to recognize that contributions are an essential means of facilitating communication. Just ask your local public radio station. To add insult to injury, the irony in this Solomon-like resolution is that it renders the situation considerably worse than it was before campaign finance reform was adopted. Since Buckley, rich candidates have been allowed to spend like drunken sailors, while financially strapped candidates are severely restricted in their ability to compete, because it has become extremely difficult to raise money. This hardly helps to bring about the economic equality that campaign finance reform posits as one of its primary goals. Yet as recently as last year, in Nixon v. Shrink Missouri PAC, the high court stubbornly reaffirmed the contorted and confused doctrinal framework adopted in Buckley. It is time for the court to end this constitutional incoherence and hold that restrictions on the amount of private contributions violate the First Amendment, just as restrictions on candidate spending do. Martin Redish, a constitutional law professor at Northwestern University, is the author of the recently published “Money Talks: Speech, Economic Power and the Values of Democracy.”

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