Kenneth P. Doyle
The case set for en banc argument involves a challenge to campaign contribution rules brought by a married couple, Laura Holmes and Paul Jost. They argued that having separate contribution limits for primary and general elections is unfair and unconstitutional because it advantages some candidates—often including incumbents—who face no primary challenge. Under current FEC rules, such candidates can use primary contributions to fund a general election race.
Holmes and Jost are being represented in the case by the nonprofit Center for Competitive Politics, a critic of campaign finance regulation.
Attorneys for the FEC have argued that the Supreme Court has consistently upheld the constitutionality of campaign contribution limits, including separate limits for primary and general elections. However, the D.C. Circuit panel ruling in April said it was not “frivolous” to challenge such contribution limits.
The courts are an uncertain bulwark against speech chilling regulation. The Supreme Court just refused to consider a nonprofit’s challenge to a Delaware law that required disclosure of the nonprofit’s donors as the price for speaking. Justice Thomas authored a rare dissent: “Given the specter of these First Amendment harms, a State’s purported interest in disclosure cannot justify revealing the identities of an organization’s otherwise anonymous donors.”
For most citizens, the only means to participate effectively in public debate other than voting is to join financially with others. The First Amendment protects the privacy of that association. Where prosecutors and regulators wield the cudgel of “disclosure” with the effect — and the purpose — of chilling those with whom they disagree, they harm public discourse and violate the First Amendment.
Bradley Smith, Chairman and Founder of the Center for Competitive Politics and former Chairman of the Federal Elections Commission, discusses why Americans must vociferously protect their right to privacy in the political arena, the Supreme Court decision to deny an appeal of a lawsuit challenging a radical disclosure law in Delaware, and the latest push […]
Money and influence are never going to disappear from campaigns, and shouldn’t. Even if people couldn’t give to campaigns, big employers, big labor, celebrities and big media would all gain influence. Those with money would just find another way to influence government. They might instead look to buy media outlets, which are exempt from all campaign speech laws. Indeed, Amazon CEO Jeff Bezos already bought The Washington Post.
As Churchill was trying to tell us, the alternatives are often worse. For example, some have expressed valid concerns about foreigners influencing our campaigns. There are indications the DNC emails may have been stolen by Russians. The Russians may well want to use them to influence the presidential race. But would that justify a ban on news coverage of emails hacked by other nations? Of course not.
Likewise, many of the cures touted for money in politics would restrict campaign speech by citizens. Yet none of the emails currently causing controversy implicates independent campaign speech.
Paying for campaign spending is the worst possible use of our tax dollars. The Democracy Credit program would be capped at $12 million, yet that’s $12 million that could go toward any other, far more valuable purpose. If the funding for roads, schools, or other state services were ever jeopardized, at least we’d have glossy fliers and television ads promoting Joe Blow’s latest run for public office, right?
That’s not how politics should function. South Dakotans don’t need a “stimulus package” to get involved in doing our civic duty or supporting causes. We’re in the ranks of states with strong levels of voter turnout. Pouring our money into elections won’t change that level of engagement.
Instead, it’ll just create opportunities for would-be politicians or incumbents to game the system. That’s how it works out in other states with public election financing. As the Center for Competitive Politics puts it, taxpayer-funded elections “exacerbate election fraud and facilitate new and creative forms of campaign finance corruption[.]”