Issue 92, Winter 2003/2004

by Joan E. Bertin

Ruling in the recent campaign finance case, McConnell v. FCC, the Supreme Court observed that "the electoral process is the very ‘means through which a free society democratically translates political speech into concrete governmental action’….. [M]easures aimed at protecting the integrity of the process tangibly benefit public participation in political debate." First Amendment advocates, however, are sharply divided over whether campaign finance laws promote or inhibit the overall level of "public participation in political debate."

Money is a powerful determinant of legal rights. As A.J. Liebling famously quipped, "freedom of the press is guaranteed only to those who own one." Anatole France was more caustic; in 1894 he wrote: "the law, in its majestic equality, forbids the rich, as well as the poor, to sleep under the bridges, to beg in the streets, and to steal bread."

In an earlier case, Justice White criticized the proposition that "money talks," and noted that "money is not always equivalent to or used for speech, even in … political campaigns." The critical problem, in his view, was "the impression that federal elections are purely and simply a function of money, that federal offices are bought and sold…."

Compelling evidence of the corrosive effect of money on political discourse, and of the fact that the most basic right is enjoyed fully only by those who can pay for the privilege, leaps out of the documents in the recent case. One internal party document says a potential donor "may be interested in an ambassadorial position," another says a potential donor is "waiting to decide…pending questions about the estate tax, as he feels the proposed legislation is not aggressive enough." A letter to a big donor asks "how the Dole & Gingrich contacts are working?" Yet another promises to "keep the lines of communication open" to "continue passing legislation that will benefit the pharmaceutical industry."

It’s premature to declare the decision a "win" or a "loss" for the First Amendment. For now, the Court has decided that the First Amendment doesn’t require the marketplace of ideas in politics to be for sale to the highest bidder. Maybe that’s not such a bad thing.