February 11, 2000


Limit Government, Not Contributions

by Sheldon Richman

The Supreme Court says the states may impose limits on campaign contributions without violating the First Amendment to the U.S. Constitution. Pithily summing up in his concurring opinion, Justice John Paul Stevens wrote, "Money is property; it is not speech."

While 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."

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 protection of property. Stevens's view is a reminder of the disgraceful New Deal-era Supreme Court view that rights come in two varieties: fundamental (voting, speech, press, religion) and nonfundamental (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.) Our right to own objects extends from the same self-ownership principle. As John Locke, the spirit behind Jefferson's Declaration of Independence, wrote, a person's acquisition of unowned property is legitimate because he mixed 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 have 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. 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 would nullify the contribution limit, then legislated limits violate the First Amendment. "Money is not speech," but that is a distinction without a difference.

This all demonstrates the tortured logic people are driven to when they try to evade the nub of any issue. The Court said 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 and give it to others. When government has those powers, people will spend money to get their hands on it. The prime corruption is not that politicians receiving contributions do the bidding of the donors. (It's called "constituent services.") The prime corruption is that government has the power to plunder its citizens.

There is a principle of American law that in combating a wrong, the government should use methods that don't themselves commit wrongs. Fighting corruption by limiting people's campaign contributions is wrong. If we're serious about corruption, let's limit government power, not campaign contributions.
Sheldon Richman is senior fellow at The Future of Freedom Foundation (www.fff.org) in Fairfax, Va., and editor of Ideas on Liberty magazine.

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