“Accentuating the Positive” in Campaign Finance Reform

November 26, 2013
posted by Bob Bauer
The Supreme Court has boxed the debate over campaign finance into a corner, forcing the focus entirely on "corruption." Because corruption is the whole game, it is played with vigor, and we have seen in recent years how the term has been pulled this way or that, depending on the commenter’s policy preference.

The SCOTUSblog symposium on the McCutcheon case continued with postings on various aspects of the speech and government interests involved in the contribution/expenditure distinction. Justin Levitt argues that overall, in granting more protection to expenditures, the distinction correctly ranks the speech values. The independent expenditure is pure self-expression, the spender’s “unique” view; the contribution helps the candidate’s speech, and as he may speak as he pleases, the message he communicates and the “unique” view of the contributor may well diverge. Tamara Piety affirms the Court’s view that “the expressive interests of contributions are minimal” and that restrictions on them may be necessary to protect against loss of public confidence in government, to enhance the competitiveness of elections, and to focus governmental energies on voters and not contributors.

What this analysis misses in following Buckley is the difference between an interest in speaking about politics, and an interest in effective political speech. The contribution and expenditure distinction is rooted in the first of these interests, and it is for this reason that the expenditure is the constitutionally privileged form of speech. In the Buckley view, the spender speaking just for herself may well treasure volume; the more said, the better, in order to drive the points home. By contrast, because the contributor supposedly speaks through another, “by proxy,” a strictly limited amount given still completes the expressive act of association and fully vindicates this more limited First Amendment interest. The contributor, however, in funding candidate speech is motivated by a deeper interest than Buckley accounts for—an interest in effective political speech.