A commemoration of the Constitution calls for impertinent arguments. Mine is this: Our campaign-finance regime ought to be as unregulated as possible, but not for the reasons commonly supposed.
Last summer, Jonathan Rauch, a senior fellow at the Brookings Institution, published a short e-book, Political Realism: How Hacks, Big Money, and Back-Room Deals Can Strengthen American Democracy. The over-the-top title notwithstanding, it made a concise, reasoned case against well-intentioned political reforms—including campaign-finance reform—that actually undermine rather than strengthen citizen participation in the republic. It is important to attract readers, so provocative titles certainly matter, and Rick Hasen makes his own attempt with Plutocrats United: Campaign Money, the Supreme Court, and the Distortion of American Elections. It is a dig at the Supreme Court’s 2010 opinion in Citizens United v. Federal…
In Citizens Divided: Campaign Finance Reform and the Constitution, Robert C. Post, the dean of Yale Law School, makes it his task to “elaborate a constitutional framework in which First Amendment doctrine and campaign finance reform can be connected to each other in a coherent and theoretically satisfactory manner.”
Despite its title, Citizens Divided is not so much about the controversial 2010 Supreme Court case of Citizens United v. Federal Election Commission as it is a discourse on the debate about the constitutionality of campaign-finance regulation—a debate that has raged since the Court’s seminal decision in Buckley v. Valeo (1976).
In 2004 leftwing filmmaker Michael Moore released his film Fahrenheit 9/11, a searing attack on the legitimacy of George Bush’s election to the presidency in 2000, and his handling of events before, during, and after the terrorist attack of September 11, 2011 on the World Trade Center. Moore was unequivocal in his stated hope that the movie would “help unseat a president.”
Fahrenheit 9/11 was produced by Moore’s production company Dog Eat Dog Films, a corporation. At the time – before the Supreme Court decision in Citizens United v. Federal Election Commission—it was illegal for corporations to spend money “in connection with any election to any political office,” and illegal for an officer of a corporation to consent to such an expenditure.
Imagine if fourteen months after the election, Moore had been indicted by a Bush-appointed federal prosecutor for violating the prohibition on corporate spending. Imagine if Moore was arrested, cuffed, criminally charged for his activities, had his passport confiscated, and bail set at $500,000–what would have been the reaction from the America’s liberals? Of the press? Of Senator Barack Obama?
Tomorrow will be the second anniversary of the Court’s decision in Free Enterprise Fund v. Public Company Accounting Oversight Bd., 130 S. Ct. 3138 (2010). I intended to mark the occasion by posting these thoughts on June 28th itself, but quite understandably, all of us will be completely preoccupied by Florida v. HHS tomorrow. (In fact, on Thursday morning, I will be on a panel analyzing the Florida v. HHS decision at an event sponsored by AEI. Readers are invited to use this link for details about attending in person or watching the live video feed.) So here goes, one day earlier than…