The money gag: efforts to limit campaign spending are back, with less justification than ever

PROPONENTS of campaign-spending limits are stuck between a rock and a hard place: the Constitution and reality.

It is impossible constitutionally to limit all campaign-related spending. The Supreme Court has been quite clear on this matter, most notably in the 1976 Buckley v. Valeo decision: "The First Amendment denies government the power to determine that spending to promote one's political views is wasteful, excessive, or unwise. In the free society ordained by our Constitution it is not the government but the people -- individually as citizens and candidates and collectively as associations and political committees -- who must retain control over the quantity and range of debate on public issues in a political campaign."

For those who do not at first blush see the link between the First Amendment and campaign spending, the Court elaborates: "A restriction on the amount of money a person or group can spend on political communication during a campaign necessarily reduces the quantity of expression by restricting the number of issues discussed, the depth of their exploration, and the size of the audience reached. This is because virtually every means of communicating ideas in today's mass society requires the expenditure of money."

The reformers do not care or, in some cases, cannot accept that spending limits limit speech. They believe that spending limits are justified and necessary to alleviate perceived or actual corruption. But the Court slapped that argument aside, holding that there is "nothing invidious, improper, or unhealthy" in campaigns spending money to communicate. The reformers contend that spending limits are essential because campaign spending has increased dramatically in the past two decades, a woefully lame premise the Court easily dispatched: "The mere growth in the cost of federal election campaigns in and of itself provides no basis for governmental restrictions on the quantity of campaign spending." Appealing to Americans' instinct for fairness, the reformers passionately plead for spending limits to "level" the political playing field. The Court was utterly contemptuous of this "level playing field" argument: "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."

There you have it. The reformers cannot achieve their objectives statutorily. To realize the reformers' campaign-finance nirvana would require essentially repealing the First Amendment -- blowing a huge hole in the Bill of Rights -- via a constitutional amendment. Frightfully undemocratic? Yes. Out of the question? No; 38 United States senators voted to do just that on March 18, 1997. These 38 senators voted, in the name of "reform," for S.J. Res. 18, a constitutional amendment to empower Congress and the states to limit contribu- tions and spending "by, in support of, or in opposition to, a candidate." Thus would the entire universe of political speech and participation be subjected to limitation by congressional edict, and enforcement by government bureaucrats.

This wholesale repeal of core political freedom registered barely a ripple in the nation's media. Perhaps reporters and editorial writers do not appreciate that their campaign coverage could be construed as spending "by, in support of, or in opposition to, a candidate" and, therefore, could be regulated under a Constitution so altered. It is not a stretch. The television networks and most major newspapers are owned by corporate conglomerates (a/k/a "special interests") and the blurred distinction is already acknowledged in federal campaign law, which currently exempts from the definition of expenditure "any news story, commentary, or editorial" unless distributed by a political party, committee, or candidate.

I do not advocate regulating newspaper editorials, articles, and headlines. I do not believe that government should compensate candidates who are harmed by television newscasts or biased anchors. However, the political playing field can never be "level" without such regulation, and it is the only area of political speech upon which the vaunted McCain-Feingold bill is silent. McCain-Feingold has provisions to enable candidates to counteract independent expenditures by every "special interest" in America, except the media industry. This "loophole" is the only one which editorial writers are not advocating be closed by the government.

Such regulation of the media may strike one as an absurd result of the campaign-reform movement, but it is a logical extrapolation of McCain-Feingold's regulatory regime. The McCain-Feingold bill's spending-limit formula for candidates is itself ludicrous. For Senate general elections: 30 cents times the number of the state's voting-age citizens up to 4 million, plus 25 cents times the number of voting-age citizens over 4 million, plus $400,000. However, if you are running in New Jersey, 80 cents and 70 cents are substituted for 30 and 25 because of the dispersed media markets. Moreover, the formula notwithstanding, for all states the minimum general election limit is $950,000 and the maximum $5,500,000. McCain-Feingold sets the primary-election limit at 57 per cent of the general-election limit and the runoff limit at 20 per cent of the general-election limit.