Theories of Speech and Policy Preference

July 1, 2013
posted by Bob Bauer

When Senator McConnell recently and aggressively needled Norm Ornstein at an AEI event, the coverage first settled on the jibe, and then, a little later, on the Senator’s denial that his position skeptical of campaign finance disclosure had changed for 25 years. All interesting or entertaining enough, but the Senator said more about his objections to campaign finance regulation—all government involvement in campaign finance, including disclosure and public financing—and it is well worth close attention.

The Senator charges Ornstein with the wish to “push the private sector all the way out of the process of getting elected,” of a “total government takeover of the whole process.” And he asks, then answering this own question:

And of course what kind of Congress is that likely to produce? The kind that wants to grow the government because the government would be in charge of how you got there.

This is view the Senator has taken before, at greater length in a speech delivered to AEI in June of 2012. Then he built out his analysis of how campaign finance regulation leads to dependency on government. “All these efforts,” he writes of the regulatory program, “are for the purpose of limiting the ability of those engaged in private enterprises—or certain disfavored private groups or associations—to influence the direction of our country by participating in the electoral process.” His concern, not exclusively but with considerable emphasis, is “the private economy” and

the assumption that…anyone who makes a profit is either cheating their customers, mistreating their employees, or both. Their motives are impure, those who interact with them are somehow duped, and therefore they’re not entitled to the full protections of the First Amendment.

For those who hold this view, the legislative Holy Grail has always been taxpayer-funded campaigns. If the advocates of this approach had their way, government would control how much is spent on elections, and how it’s directed, courtesy of the taxpayer.

And he asks, much as he does a year later in his exchange with Ornstein: “who would have sway over the politicians then?” This is his answer:

With private interests pushed to the sidelines, the only voices lawmakers could be expected to respond to would be the self-appointed tribunes of the public interest. Private interests would end up with minimal influence on the direction of public policy, and the odds of people running toward public sector solutions would increase dramatically. If you write the rules of the game, it’s easier to win the game—especially for incumbent politicians, I would add. And that’s what the so-called reform crowd has always had in mind.

This is a strong and somewhat exceptional objection—that the reform program both tends toward, and intends to move toward, dependency on government. It is different from the standard concern with government as the source of limits on political money. That concern has revolved largely around critiques of rent-seeking: of the growth of government igniting intense, expensive contests to influence to win or retain the favor of regulators and legislators. See, e.g. Bradley A. Smith, Faulty Assumptions and Undemocratic Consequences of Campaign Finance Reform, 105, Yale L. Journal 1049, 1054 (1996). In addition, critics of regulation have pointed to manipulations of the spending rules in the service of political self-interest—either partisan self-interest or incumbent self-interest irrespective of party affiliation. See John Samples, The Fallacy of Campaign Finance Reform (2006); see also McConnell v. FEC 540 U.S. 93, 262 (2003) (Scalia, J., dissenting) (“Members of Congress who voted for [McCain-Feingold] did so not to produce “fairer” campaigns, but to mute criticism of their records and facilitate reelection.”)

In Senator McConnell’s view, the government regulates campaign finance in order to subdue the private sector and send “people running toward public sector solutions.” Government influence over campaign finance begets big government. In this light, the Senator’s reconsideration of his once favorable stance of disclosure becomes easier to grasp. If resistance to campaign finance regulation is now required to defend private enterprise against imperious federal power, government-mandated disclosure is just as dangerous, just as necessary to oppose as a means by which the government expands its domain.

The Senator frames his case as a defense of free speech, and there is no doubt that he sees his mission that way, or that he has been persistent, skillful and knowledgeable in its pursuit. But it also seems that he is committed to the speech most conducive to the policies he favors. Contrary to the view, for example, that public financing provides for more speech, more varied in source, than an unregulated system in which those with the most speak the most, Arizona Free Enterprise Club v. Bennett, 131 S. Ct. 2806 2833-2834 (2011)(Kagan, J., dissenting), Senator McConnell fears that any role for regulation is too costly for private enterprise. Whatever the government might do to broaden opportunities for political participation will be too much if one assumes, as the Senator does, that the effect is inevitably to stifle the “private sector’s” sway over public policy. As he says, “the goal [of campaign finance regulation] is to hermetically seal off Congress from anyone engaged in the private economy or in certain kinds of advocacy, for that matter, outside the public sector.”

This is a theory of free speech, but also more—or less—than that, because the radically de-regulated legal regime the Senator supports is the one he believes best designed to bring about the policies he prefers.

Leave a Reply