Category Archives: The Amendment

A New Direction for Campaign Finance Reform

Senator Obama’s recent fundraising success calls for a complete re-evaluation of the campaign finance reform agenda that has been prominent in recent years.

Campaign finance reform has been focused primarily on limiting the outsize influence that moneyed special interests have on our electoral process. This reliance on big donors inevitably draws our elected officials away from representing the broader, long-term interests of all of their constituents, and pushes them toward decisions that will please and benefit their largest campaign contributors. One need look no further than the recent Abramoff scandals for an example of the corrupting influence of campaign contributions on democratic governance.

Congressional efforts to address this and other campaign finance concerns have included the Federal Elections Campaign Act of 1971 ( FECA) which requires candidates for Federal office to report all campaign contributions and expenditures, and offers public financing to Presidential candidates who accept voluntary limits on expenditures. In 2002 the Bi-Partisan Campaign Reform Act (“BCRA” or “McCain-Feingold”) went further by trying to regulate ‘soft money’ – expenditures by third-party organizations seeking to influence the outcome of specific elections under the guise of “issue advocacy. “

Continue reading

Is Money = Speech Under the US Constitution?

According to the Supreme Court it is.  In the landmark election finance case Buckley v. Valeo (1974) the Supreme Court ruled that “the concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment.”

For years I found this to be a seemingly straightforward exposition, and accepted as necessary the collateral damage — our political process being dominated by moneyed people and interests, and elections being bought and paid for like any supply-demand commodity.  Free speech is not necessarily a clean proposition , so we have to take the good with the bad if we want to have it at all.

This was all before I read a book by a Yale law professor named Cass Sunstein, entitled Democracy and the Problem of Free Speech (The Free Press, 1995).  In this treatise Sunstein analyzes the Buckleydecision (among others) in the context of what he defines as the “Madisonian Conception” of the Constitution and of the First Amendment.  On this (Madisonian) view, which he legitimizes by sheer force of logical argument and historical fact,  the principal and crucial objective of the First Amendment originally was, and should now be, to create and protect an environment in which issues of public interest can be exposed to a process of civic deliberation.  The idealized goal of this conception of free speech is to maximize opportunities for all citizens to participate in a deliberative process that includes the views of a broad spectrum of society — not just the wealthy (or the white, or the male landowners) .

Continue reading