“Money is property; it is not speech.”
Thus did U.S. Supreme Court Justice John Paul Stevens pithily sum up his opinion concurring in a ruling that states may impose limits on campaign contributions without violating the First Amendment to the Constitution.
While Justice Stevens conceded that money can accomplish the same goals as speech, he added, “It does not follow, however, that the First Amendment provides the same measure of protection to the use of money to accomplish such goals as it provides to the use of ideas to achieve the same results. The right to use one’s own money to hire gladiators, or to fund ‘speech by proxy,’ certainly merits significant constitutional protection. These property rights, however, are not entitled to the same protection as the right to say what one pleases.” (Emphasis added.)
The sad state of American jurisprudence is written all over that statement. Even if we grant that speech and property are separate matters, it would not follow that property deserves less than full protection. The U.S. Constitution is full of protections for property. Stevens’s view is a reminder of the disgraceful and arbitrary New Deal-era Court doctrine that rights come in two varieties: fundamental (voting, speech, press, religion) and non-fundamental (property). We are still suffering under that subversive doctrine.
In fact, property and speech are not separate. We have a right to free speech because each of us is a self-owner who may thus determine the use of his body and faculties (consistent with the rights of everyone else). It’s my brain and my larynx. Therefore, I am free to speak (unless I’m in your living room, in which case, if you object, I must then go to property that I own or rent).
Our right to own objects extends from the same self-ownership principle. As John Locke, who inspired Jefferson’s Declaration of Independence, wrote, a person’s acquisition of an unowned resource is legitimate because he mixes his labor with it. The right to own what one obtains in trade derives from this principle.
Free speech and property rights, then, have the same genesis.
The intersection of speech and property has practical consequences in the very context we’re discussing: political campaigns. Mr. Jones is a wealthy supporter of Candidate Smith. He would like to contribute substantially more than the permitted $1,000 to the candidate. That’s illegal. So he decides to spend his money to promote the candidate on his own; it’s called an “independent expenditure.” Can he do it under the law? Only with restrictions, including a prohibition on coordinating with the candidate. Otherwise the contribution limit would be a sham. In other words, Jones cannot speak with the candidate before deciding how to spend his money. Sounds like a violation of free speech and association to me. If respect for freedom of speech and association would nullify the contribution limit, then legislated limits violate the First Amendment. “Money is not speech,” but that is a distinction without a difference.
The current restrictions on speech and spending — as bad as they are — aren’t enough for many people who fancy themselves “good government” types. (John McCain has become their self-anointed leader.) Believing that money corrupts politics, they favor new restrictions on what people can say publicly not only about candidates but also about issues in an election season. An anti-abortion organization, for example, would not be free to run radio ads expressing opposition to abortion during a congressional campaign if the ads could be construed — by whom? a bureaucrat, of course — as support for the anti-abortion candidate in the race. That would be done in the name of keeping political debate honest.
Selling government favors
This all demonstrates the tortured logic people are driven to when they try to evade the nub of any issue. The Court says that limits on contributions are constitutionally permissible to avoid corruption and the appearance of corruption. But the only reason that campaign contributions can be corrupting is that government has favors to sell. And the only reason it has favors to sell is that it has been permitted to regulate peaceful activities and to take wealth from its owners in order to give it to others. When government has those powers, people will spend money to get their hands on it. As long as more than a trillion dollars flows to Washington every year, special interests will follow. What’s corrupt is not that politicians receiving contributions do the bidding of the donors. It’s that government has the power to plunder its citizens in the first place.
As James Q. Wilson wrote recently,
When [McCain] says that we should reduce the power of lobbyists, it follows that we must reduce dramatically the extent to which government affects the lives of American people and organizations. The greatest source of campaign spending can be found not in weak laws about campaigns, but in the myriad regulations, laws and subsidies for which Congress has voted. A real debate about fewer lobbyists would be a debate about what laws to repeal, what regulations to abandon and what subsidies to end.
The law perverted
Wilson is only paraphrasing what libertarians have been saying for a long time. The great Frédéric Bastiat recognized the problem in his 1850 classic, The Law. Bastiat pointed out that the true purpose of law is to protect property. Under that circumstance, society will be stable and prosperous. But when the law is twisted into an instrument of plunder, everything changes.
This is particularly so in a democratic society, where access to the instrument of plunder is more open.
As long as it is admitted that the law may be diverted from its true purpose — that it may violate property instead of protecting it — then everyone will want to participate in making the law, either to protect himself against plunder or to use it for plunder. Political questions will always be prejudicial, dominant, and all-absorbing. There will be fighting at the door of the legislative palace, and the struggle within will be no less furious.
As long as the power exists, people will try to buy a piece of it. As Bastiat said, sometimes they will buy it to get what they have no right to, such as a subsidy or a restriction on their competitors. At other times they will buy it to protect themselves from government predation. In that case, they are simply buying security from a protection racket. The culprits are those who run the racket.
Even outlawing all contributions and financing campaigns through taxation (an obscenity to be sure) would not stop the buying and selling of power. It would simply drive it underground.
It is ironic that the very people who want the government to be free to plunder its citizens for the “social good” are the same who rail against pork-barrel legislation and special interests’ trying to harness political power for their own benefit. The distinctions they draw between special interests and the general interest are so fine as to be nonexistent.
Did they not foresee the jockeying for power that they now decry? I suspect that what’s really going on is that the campaign reform advocates are jealous of their rivals for control of the power. Let’s also not discount the news media’s ambition to enhance their own influence over campaigns by restricting other people’s influence.
Contrary to popular impression, money does not corrupt politics. Politics corrupts money. Think how productive the money that now goes to campaigns could be if the power of legalized plunder were not there to buy.
A principle of American law says that in combating a wrong, the government should use methods that don’t themselves commit wrongs. Fighting corruption by limiting campaign contributions is wrong. If we’re serious about corruption, let’s end legalized plunder, not campaign contributions. Then we’ll see how quickly the lobbyists find something else to do.