With over $5 billion spent on all races, the 2018 midterms were the most expensive in history. This had many on the Left up in arms and promising reform. A group of 100 Democratic candidates signed a pledge promising new limits on campaign spending by “big donors” and “special interests” if elected.
Alexandria Ocasio Cortez, the new darling of the left, went further. She called for a constitutional amendment to restrict the First Amendment and counteract Citizens United v. the Federal Elections Commission, the 2010 Supreme Court decision that allowed super PACs to raise and spend unlimited amounts of money on independent political speech.
Ocasio Cortez is in many ways a fringe candidate, but Democrats of all stripes share her animus against Citizens United and super PACs. In fact, both Hillary Clinton and Bernie Sanders promised to nominate Supreme Court justices who would overturn Citizens United if elected.
The left’s obsession with clearing the airwaves of super PAC-funded campaign advertisements is misguided. Super PACs are simply associations of like-minded individuals who want to engage in political speech independent of candidates and political parties.
Those seeking to quash them ignore the clear connection between freedom of speech and the freedom to reach an audience, which in today’s media world costs money. It also rests on the assumption that political speech funded by one set of corporations and individuals (the ones who donate to super PACs) is perverse while political speech funded by another set of corporations and individuals (the ones who own television stations and newspapers) is fine.
The dichotomy is obviously synthetic. Why should a puff piece on Beto O’Rourke in the Washington Post (owned by Amazon CEO Jeff Bezos) be considered journalism, so no campaign finance rules apply, while a TV spot praising Ted Cruz paid for by “Texans Are” (a super PAC funded by Cinemark CEO Lee Roy Mitchell) is an electioneering communication subject to federal law?
Why should a rapturous 15 minute interview of Ocasio Cortez, candidate for New York’s 14th congressional district, on MSNBC (owned by Comcast and General Electric) be treated differently than a commercial run by the Congressional Leadership Fund (partially funded by AT&T and Microsoft) in support of John Faso, of New York’s 19th congressional district?
If super PACs were eliminated, nothing would stop companies and wealthy individuals from following Bezos and GE’s lead and purchasing their own media outlets. Or they could simply start their own. Instead of Club for Growth Action, we could have Club for Growth News Network. Instead of the National Association of Realtors super PAC, we could have The Realtor Times.
As law professors Samuel Issacharoff and Pamela S. Karlan have written:“It doesn’t take an Einstein to discern a First Law of Political Thermodynamics – the desire for political power cannot be destroyed, but at most, channeled into different forms.” Indeed, this law has been at work since the beginning of campaign finance reform.
When Congress banned labor union contributions in the 1940s, the AFL-CIO found a clever workaround. It created an electioneering fund — the original political action committee — to which members could contribute. Since money from this fund was not coming directly from the union’s coffers, it could be freely donated to candidates.
Similarly, when Congress capped contributions to political parties for the advocacy of its candidates, party committees began collecting millions in so-called “soft money,” not expressly earmarked for the advocacy of their candidates. When Congress closed the soft money loophole in 2002, the parties took a different tack. National party committees now direct wealthy donors to give to local and state party committees since there are, as yet, no limits on the amount one party committee can transfer to another.
If history is any guide, as wealthy individuals and corporations funnel money into news stations rather than super PACs, it will ignite another round of the arms race between regulators and regulated. The FEC would surely take it upon itself to distinguish between legitimate and illegitimate news sources, and between real and fake news. In other words, it would become a self-appointed censor.
This is no Orwellian fever dream. The federal government was once in the business of making such distinctions. In the days of over-the-air broadcasting, the Federal Communications Commission required, as a condition of holding a broadcasting license that networks present both sides of a policy issue in an “honest, equitable, and balanced” manner. This was the so-called “fairness doctrine” and many on the Left support its return to this day.
Of course, the “fairness doctrine,” did not live up to billing. Instead, regulators gave their imprimatur to the center-left commentariat that monopolized the major networks. This overwhelming air superiority allowed Liberals to carpet bomb Republicans off Capitol Hill and keep all but the most conciliatory (Eisenhower), shrewdest (Nixon), and most rhetorically brilliant (Reagan) out of the White House too.
It is here that the connection between free speech, political spending, and, indeed, our form of government, comes into sharp focus. The root assumption that animates all campaign finance reform is that some messengers are altruistic, honest, and good while others are self-serving, false, and pernicious. Liberals put themselves in the former category, their opposition in the latter. The Founders understood that by enshrining the right to free speech, they also assured open political contestation.
This piece originally appeared in The Hill on 11/9/18