One Nation Undecided by Peter H. Schuck

Author:Peter H. Schuck [Schuck, Peter H.]
Language: eng
Format: epub
ISBN: 9780691167435
Publisher: Princeton University Press
Published: 2017-01-15T07:00:00+00:00

Independent Expenditures

The Supreme Court held in Buckley that Congress cannot restrict “independent” expenditures, and has reaffirmed that principle on many occasions. The Court’s rationale, as noted earlier, was that expenditure limits restrict the freedom of speech and association far less than contribution limits do. They do so, according to the Court, because the quantity of the expenditure directly correlates with the quantity of speech and because its communication value is greater than that of merely writing a check for a contribution.

Both of these reasons are debatable. Although the amount spent may tend to correlate with the quantity of speech, this is not certain. And it is hard to see how giving money to a PAC that uses it to urge voters to “elect Smith” communicates any more than does giving money directly to Smith, who goes out and says the same thing. Of course, the PAC might instead use the money to communicate a more substantive, nuanced justification for supporting Smith, which would likely convey more (and more valuable) political information. This possibility may help explain why the Court demands greater leeway for expenditures than for contributions.

But there are several other serious problems with this distinction. One is that spending on behalf of candidates or the positions they espouse can easily become functional equivalents of direct contributions to them and thus undermine the anticorruption-based contribution limits (unless expenditures were also subjected to such limits and those limits were enforceable). For this reason, the Court only accords a higher (more constitutionally protected from regulation) status to expenditures if they are “independent” of the campaign—defined, as we saw earlier, as not being coordinated with it, directly or indirectly. This basic distinction, we also saw, lies at the very heart of the regulatory system, for two reasons: The Court deems it essential to the integrity and effectiveness of the contribution limits, and the First Amendment prohibits other limits on political speech or on spending that constitutes political speech.

Another problem with the distinction is this: Even spending that is in fact independent of the campaign “exacerbate[s] the already disturbing trend toward politics being divorced from the mediating influence of candidates and political parties.… Without mediating institutional buffers, money becomes the exclusive coin of the realm as politics pushes toward issue advocacy by groups not engaged in the give and take of party and coalitional politics.”122 Also, it is not clear why a distinction based on fear of corruption should apply at all to spending by parties whose very purpose, which is so essential to our political system, is to influence and promote their own candidates. Here, the notions of independence and corruption seem quite out of place, yet the Court (sharply divided, of course) has applied the distinction to party spending as well.123 This is a classic case of a regulation begetting more regulation designed to prevent evasion of the first one: If Congress is to limit parties’ spending for candidates, then it must also limit contributions by individual citizens to either parties or candidates.

Download

Copyright Disclaimer:
This site does not store any files on its server. We only index and link to content provided by other sites. Please contact the content providers to delete copyright contents if any and email us, we'll remove relevant links or contents immediately.