Setting caps on political spending strikes at the heart of free speech

With more than $5 billion spent on all races, the 2018 midterms were the most expensive in history. This had many on the left up in arms and promising reform. A group of 100 Democratic candidates signed a pledge promising new limits on campaign spending by “big donors” and “special interests” if elected. Alexandria Ocasio Cortez, the new darling of the left, went even further. She called for a constitutional amendment to restrict the First Amendment and counteract the 2010 Supreme Court decision in Citizens United v. the Federal Election Commission, which allowed large political action committees known as super PACs to raise and spend unlimited amounts of money on independent political speech.

Ocasio Cortez is in many ways a fringe candidate, but Democrats of all stripes share her animus against Citizens United and super PACs. In fact, both Hillary Clinton and Bernie Sanders promised to nominate Supreme Court justices who would overturn Citizens United if elected. The obsession by people on the left with clearing the airwaves of campaign advertisements funded by super PACs is misguided. Super PACs are simply associations of individuals who think alike and want to engage in political speech independent of candidates and political parties.

{mosads}Those seeking to quash them ignore the clear connection between the freedom of speech and the freedom to reach an audience, which in the modern media world costs money. This also rests on the misguided assumption that political speech funded by one set of corporations and individuals (the ones who donate to super PACs) is perverse while political speech funded by another set of corporations and individuals (the ones who own television stations and newspapers) is fine.

The dichotomy is obviously synthetic. Why should a puff piece on Beto O’Rourke in the Washington Post, owned by Amazon chief executive officer Jeff Bezos, be considered journalism, so no campaign finance rules apply, while a television spot praising Ted Cruz paid for by Texans Are, a super PAC funded by Cinemark chief executive officer Lee Roy Mitchell, is deemed an electioneering communication subject to federal law?

Why should an interview of Ocasio Cortez, elected to represent the 14th District of New York, on MSNBC, owned by Comcast and General Electric, be treated differently than a commercial run by the Congressional Leadership Fund, partially funded by AT&T and Microsoft, in support of John Faso, who lost in his race for the 19th District of New York?

If super PACs were eliminated, nothing would stop wealthy individuals and companies and from following Amazon and Comcast and buying their own media outlets. They could even start their own. Instead of Club for Growth Action, we could have Club for Growth News. Instead of the National Association of Realtors Fund, we could have the Realtor Times.

As law professors Samuel Issacharoff and Pamela Karlan wrote, it does not take someone like Albert Einstein to discern a “first law of political thermodynamics” that the “desire for political power cannot be destroyed” but rather at most channeled into different forms. Indeed, this law has been at work since the beginning of campaign finance reform.

When Congress banned labor union contributions in the 1940s, the AFLCIO found a clever workaround. It created an electioneering fund, which was the original political action committee, to which members could contribute. Since money from this fund was not coming directly from the union coffers, it could be freely donated to candidates.

Similarly, when Congress capped campaign contributions to political parties for the advocacy of its candidates, national committees began collecting millions in “soft money” not expressly earmarked for the advocacy of their candidates. When Congress closed the soft money loophole in 2002, national committees took a different route and now direct wealthy donors to give to local and state committees since there are no limits on the amount one committee can transfer to another.

If history is any guide, as wealthy individuals and corporations funnel money into news stations rather than super PACs, it will ignite another round of the arms race between regulators and regulated. The Federal Election Commission would surely take it upon itself to distinguish between legitimate and illegitimate news sources, and between real and fake news. In other words, it would essentially become a censor.

This is no Orwellian fever dream. The federal government was once in the business of making such distinctions. In the days of over the airwaves broadcasting, the Federal Communications Commission required, as a condition of holding a license that networks present both sides of a policy issue in an “honest” and “balanced” manner. This was known as the “fairness doctrine” and many on the left support its return to this day.

Of course, the “fairness doctrine” did not live up to its billing. Instead, regulators gave their imprimatur to the center left commentary that monopolizes the major networks. This overwhelming airtime superiority allowed liberals to carpet bomb Republicans off Capitol Hill and keep all but the conciliatory Dwight Eisenhower, the shrewd Richard Nixon, and the most rhetorically brilliant Ronald Reagan out of the White House.

It is here that the connection between free speech, political spending, and our form of government comes into sharp focus. The root assumption that animates all campaign finance reform is that some messengers are altruistic and honest while others are pernicious and false. Liberals put themselves in the former category and their opposition in the latter. The Founders understood that by enshrining the right to free speech in our democracy, they also assured open political contestation in our elections.

John W. York is a federal government policy analyst with the Kenneth Simon Center for Principles and Politics at The Heritage Foundation.