That the Tillman Act failed to stop political corruption or corporate political influence is an obvious understatement. Thus it was followed by more “reform.” In 1910, Congress passed the first federal campaign finance disclosure law, and in 1911 expanded that law’s reach. Next came the Federal Corrupt Practices Act of 1925, the Hatch Act of 1939, the Smith-Connolly Act of 1943, and the Taft-Hartley Act of 1947, extending the prohibition on corporate contributions to include unions.
When these laws failed to solve the “problem,” we got still more “reform,” or to be more accurate, more regulation. The Federal Election Campaign Act of 1971, and extensive amendments to FECA in 1974 dramatically expanded the law’s reach and created a new bureaucracy, the Federal Election Commission, to enforce it.
More than a quarter century after the “comprehensive reforms” of 1974, however, corporations, unions, and ubiquitous “fat cats” were still spending money and influencing elections. So in 2000, Congress passed added disclosure regulations on citizens’ organizations such as the Sierra Club (sometimes called “527s”), and more significantly, in 2002 it passed the “McCain-Feingold” law. Five years later, the era of McCain-Feingold is the era of Duke Cunningham, William Jefferson, Bob Ney and Jack Abramoff.
Surveying a century of “reform,” what has been accomplished? When was the last time you heard anyone say, “Thank goodness corporations, unions, and ‘fat-cats’ no longer influence elections”; “Thank goodness elections are not so negative as they used to be”; or “Thank goodness campaign finance laws have put an end to political corruption?”
“Reform” hasn’t solved the problem, but it has taken a toll on our First Amendment.
In modern society, money facilitates speech. It costs money to publish a newspaper or operate a broadcast station. It is not possible to run a political campaign or effectively criticize officeholders without spending money for signs, advertisements, rallies, mailers and more. Yet it is now against the law for citizens’ groups such as Handgun Control Inc. and the National Rifle Association to run most broadcast ads mentioning a political candidate within 60 days of a federal election — even if the candidate mentioned is an incumbent officeholder, the ad concerns an issue on which Congress is preparing to act, and no mention is made of any election.
In Washington state, a court has ruled that commentary by radio talk-show hosts is regulated under the state’s campaign finance laws. When citizens of Parker North, Colo., printed fliers and lawn signs and formed an e-mail list to oppose the annexation of their neighborhood into a neighboring city, they were charged with violating the state’s campaign finance laws.
Across the country, the ability of ordinary citizens to exercise First Amendment rights is being smothered by layers of bureaucracy and regulation.
Despite these costs, the failure of regulation is met with calls for more “reform,” including more criminal penalties for political speech and replacement of the bipartisan Federal Election Commission with a campaign finance czar operating without accountability to voters. In 2003, leading “reformers” sued in court to force the FEC to regulate the Internet, and they now seek greater limits on the ability of citizen groups to engage in politics.
One hundred years after the Tillman Act, perhaps it is time to put a halt to “reform.”
The First Amendment was intended, above all, to protect political speech. The Founders were not so naive as to believe that there was never any downside to free speech, but they understood that the proposed cure — giving the government the power to decide who had spoken too much, and who had not spoken enough, or to decide which ads were “genuine” and which were a “sham” — was worse than the problem.
One hundred years of “reform” has proven the wisdom of that decision. One hundred years of efforts to limit speech teaches that the First Amendment — unfettered political speech, including the right to criticize our officials — is the real campaign finance reform.
Bradley Smith is former chairman of the Federal Election Commission and chairman of the Center for Competitive Politics. Paul Sherman is associate director of the Center for Competitive Politics.
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