I confess that I have never been convinced of the administrability of campaign finance restrictions. Moreover, although the “money is speech” argument against campaign finance restrictions is not all that satisfying, I rarely hear anyone do much to articulate the need for such restrictions beyond the equally unsatisfying “money destroys democracy” mantra. To my mind, restrictions on what people may do tend to bear the burden of proof. That said, David Schultz’s op-ed in the National Law Journal makes one of the better rhetorical cases for restrictions I have heard in recent memory. The whole piece is short and worth reading in its entirety (Schultz gives a good summary of the constitutional question surrounding campaign finance restrictions), but I leave you with a good nugget that comes at the end:
Allocation of political power and influence should be distributed according to nonmarket criteria.
To a large extent, American political power is being subjected to a marketization of its operations. The issue here is not the efficacy of money. By that, the primary issue is not whether money makes a difference in terms of who is elected or who has political influence. One could debate forever whether money buys influence or corrupts. This is where the legal debate over campaign finance is wrongly centered. The issue should be whether money should at all be the criterion by which political power or influence is allocated. Even though American democracy has grown along with capitalism, the two should not be conflated. Many of America’s Founding Fathers feared the impact that economic inequalities could have on politics. James Madison in Federalist No. 10 warned of the problems associated with “various and unequal distribution of property.”
Additionally, Justice William Rehnquist dissent in First National Bank of Boston v. Bellotti recognized the illegitimate drive of corporations to convert their economic resources into political power. The problem with Buckley and the court’s decisions on money in politics is that the justices failed to understand how a democratic system derives its legitimacy from political equality. Allowing the allocative criteria of the economy to substitute for equality in the political arena gives money and wealth a role that they just should not have in American democracy.