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"Money is property, not speech"
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Jan. 27, 2000 |
While the candidates, cameras and columnists swept the state's cornfields trying to stitch news out of Monday's caucuses -- news as ephemeral as a corn-husk scarecrow -- the U.S. Supreme Court issued two rulings of far greater import for the shape of American elections in coming years, starkly laying out the fault lines of this presidential contest. One decision concerned what so far has been the defining issue of the presidential campaign: money in politics. By a 6-3 vote, the justices upheld strict dollar limits on political contributions -- setting the court foursquare against George W. Bush, who, like all and all the other GOP candidates except John McCain, would like to banish campaign fund-raising caps imposed in the 1970s.
In legal terms, the news from the court was simple and narrow, upholding a Missouri law limiting contributions in statewide elections to $1,075 per candidate. But the national resonance is far greater. Until Monday, the free-money crowd like Bush and Kentucky Sen. Mitch McConnell argued that campaign contributions are just a form of political speech, protected by the First Amendment. They hoped -- even expected -- that a court dominated by Reagan-Bush conservatives would agree with them and overrule Buckley vs. Valejo, the post-Watergate decision that first held that campaign-contribution limits pass constitutional muster. Monday's opinion blows the free-money crowd out of the water. "Leave the perception of impropriety unanswered, and the cynical assumption that large donors call the tune could jeopardize the willingness of voters to take part in democratic governance," wrote Justice David Souter in the passionate majority opinion -- an opinion cutting sharply across ideological divides with Souter, a Bush nominee -- joined by Nixon-appointed Chief Justice William Rehnquist, Reagan-appointed Sandra Day O'Connor, Ford-appointed John Paul Stevens and Clinton appointees Ruth Bader Ginsburg and Stephen Breyer. Wrote Stevens: "Money is property. It is not speech." In the short run, Monday's decision moves the center of argument away from whether individual contributions should be regulated to how the regulation should be done. It gives tacit support to state-level clean-money reform schemes, like the one in Maine, that allow candidates to "opt into" 100-percent public financing by renouncing private donations. Candidates are more likely to opt into full public financing systems if they know their opponents who choose not to do so will be operating under strict constraints. But the longer-run impact of Monday's decision is even more tantalizing. In its 1976 Buckley vs. Valejo decision, the Supreme Court made a crucial distinction which has come to haunt American politics: between "contributions," which could be limited, and spending, which according to Buckley can shoot into the stratosphere without constraint. As Justice Anthony Kennedy, who voted against Monday's ruling because he would like to get rid of Buckley, remarked, this one-sided regulation created not clean elections and free expression but "covert speech funded by unlimited soft money." Justice Kennedy's words raised for the first time the prospect that even this conservative Supreme Court might be ripe for wholesale reconsideration of the campaign-spending question -- which would amount to a revolution in how American elections get run. In Monday's multiply divided opinions, dissents and concurrences, the only two justices who would keep government's regulatory hand off campaign contributions altogether were arch-conservatives Clarence Thomas and Antonin Scalia. Indeed Justice Kennedy -- generally considered a hardline conservative libertarian -- directly suggested he would "leave open the possibility" of "a system in which there are some limits on both expenditures and contributions, thus permitting office-holders to concentrate their time and efforts on official duties rather than fundraising." As Ellen Miller, founder of the finance-reform group Public Campaign, puts it: "The court has affirmed what nearly every American believes, that big money plays a pernicious role in our politics and that we have a compelling interest in reducing the corruption ... that results when candidates are dependent on large private contributions to pay for their campaigns."
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