Quote of the Day

The Federal Election Campaign Act (FECA) systematically limited the ability of individuals and groups to criticize the people who run the government. It was a Draconian law, severely capping the amount of money that could be contributed to political candidates, spent by candidates and campaigns, and even by individuals and groups totally independent of any candidate. The annual limit of $1,000 on “outside” spending made it a federal crime to sponsor a quarter page ad in The Times criticizing the president of the United States during an election year.

The whole purpose and effect of FECA was inconsistent with the core principle of the First Amendment and of democracy, namely, that we need more discussion and debate about government and politics, not less. The law also included burdensome and intrusive donor disclosure requirements so wide in application and deep in reporting as to threaten recognized rights of associational privacy and undermine the secrecy of the ballot. And FECA provided public financing of presidential elections through a formula effectively designed to benefit only Republicans and Democrats. The final outrage was to put enforcement of these drastic restraints on First Amendment rights in the hands of the very incumbents in Congress who had passed the law in the first place, a built-in constitutional conflict of interest.

Fortunately, the Supreme Court in 1976 struck down the worst excesses of the law, namely, the restrictions on candidate, campaign and independent expenditures. But in an ill-advised Solomon-like compromise, the court upheld the restrictive $1,000 limit on contributions to candidates. This inevitably hurt underfunded challengers and benefited well-heeled incumbents, who could more easily raise money at $1,000-a-plate dinners from special interest groups. It also ensured that groups and individuals, unable to donate more than $1,000 to candidates, would seek other outlets for their political messages. This led over time to the rise of political action committees, the use of soft money by political parties and outside groups and, nowadays, well-funded political activity by Super PACs and nonprofit organizations. While all this First Amendment activity has added to the public debate, without contribution limits the funding might have gone directly to the candidates and the parties to be used in a more transparent and accountable way.

Joel M. Gora. Yes, money is speech, and yes, placing limits on campaign contributions and spending do violate speech. And the violations tend to favor incumbent candidates, as Professor Gora points out.