Are campaign finance “reforms” really free speech restrictions?

March 25, 2011 05:30

At root, the campaign finance reform impulse is more about control and the personal preferences of those writing the rules than any high-minded notion of democracy, let alone free speech.

By Lisa Knepper at Institute for Justice

Yesterday, Ezra Klein linked to a graph that, he says, shows the importance of so-called campaign finance “reform,” and more specifically using taxpayer dollars to fund the campaigns of political candidates.  This matters now because on Monday the U.S. Supreme Court will hear a challenge to one the most sweeping of such schemes, Arizona’s “Clean Elections” law.  Interestingly, the graph and Klein’s post tell us much more about the impulse behind campaign finance “reform” than they do about the supposed benefits of such systems (or whether they are constitutional).

The graph, from a guest blog post elsewhere by political scientist Michael Miller, suggests that candidates who run on the taxpayer’s dime with what is known as “full funding”—as in Arizona’s system—spend more time interacting with voters than taxpayer-funded candidates in systems with only “partial funding,” as in Minnesota.

The difference between “full” and “partial” funding lies at the heart of the challenge to Clean Elections systems.  Full funding systems like Arizona’s provide extra subsidies to taxpayer-funded candidates when traditional, privately funded opponents—or completely independent groups who support them—spend or raise more than a set amount.  In other words, when privately funded candidates and their supporters speak more, taxpayer-funded candidates get more.  Partial funding systems generally lack this “matching” or “equalization” funds component.

The challenge to Arizona’s system, brought by the Institute for Justice and the Goldwater Institute on behalf of candidates and independent groups, argues that matching funds discourage speech and thus violate the First Amendment.  Spend a buck over the government-set “trigger” amount, and your opponent gets a buck.  If you have two taxpayer-funded opponents, they each get a buck.  If an independent group, apart from your campaign, spends a buck, another check goes to your opponent.  It’s not hard to see how this discourages speech by those not on the dole.

Campaign finance reformers are worried that if the Supreme Court strikes down “matching funds,” then the only option left for public funding is “partial” funding.  And Miller’s graph shows that to be less effective in encouraging “interaction with voters.”

But what is “interaction with voters”?  In his post, Miller says it encompasses things like “knocking on doors, placing signs, and related activities.”  Nothing wrong with that, but why are these particular activities more important than anything else a candidate might do?  So important, in fact, that it’s worth imposing burdens on other candidates and independent groups (not to mention taxpayers) to achieve a few more hours a week spent on these activities instead of others.

“Knocking on doors” certainly conjures up a wholesome image of campaigning, but it’s only one of many ways to reach, inform and persuade voters.  What Miller and Klein are really saying is that all candidates should speak in the way Miller and Klein prefer.  At root, the campaign finance reform impulse is more about control and the personal preferences of those writing the rules than any high-minded notion of democracy, let alone free speech.  Under the First Amendment, it’s not up to the government (or Miller or Klein) to decide which ways of reaching voters are best, it’s up to candidates and their supporters.

I’ll have more responding to Miller’s post later, but in the meantime, check out this quick primer by political scientist David Primo on the scholarly research on taxpayer funding systems.  It throws cold water on a number of Miller’s other claims about the supposed benefits of public funding.

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