some probably dumb thoughts about the tenability of campaign finance laws

There’s no way to write this post without seeming like I’m just being a shill for my employer. And yet, as I write it, I need to be careful to point out that I am not speaking on behalf of my employer, and could easily get myself in trouble for posting it. Really, this is all downside for me.

But in the last week a couple of friends have written posts that begin, more or less, with “Given that campaign finance legislation is fundamentally incompatible with the first amendment…” And look, yes, I know that this is, if not the legal status quo, then at least what awaits us at the bottom of the legal slip and slide that our juridical institutions are gleefully hurtling down. But let me be the lame parent worrying about what all this water will do to the lawn: I still don’t buy that money is speech.

It’s probably necessary to look at this from a couple of angles. First, there’s the case in which money is given to someone else in order to support that candidate or cause’s speech. Our campaign finance laws remain relatively strong in this area, and understandably so: if it’s not my speech, my speech rights aren’t (as) relevant. Handing you a pen is not speech; neither is handing you a dollar to buy a pen.

The situation is admittedly more difficult in cases where we’re talking about restricting individuals’ ability to spend on their own expressions when those expressions benefit particular candidates or political outcomes. In a theoretical sense, I get it. It’s an intractable problem. That pen might amount to a precondition to self-expression for you, making it, from a practical perspective, indistinguishable from the act of expression itself. If we can’t summon the political will to guarantee everyone access to pens, we can sure as hell not start drafting pen-control laws and asking Staples cashiers to enforce them (in the case of the FEC, this is a generous metaphorical comparison).

I love philosophical abstractions as much as the next guy, but let’s get real: most types of communication are cheap. This is about broadcast media. The money-in-politics discussion is about domination of a small number of more-or-less zero-sum distribution channels, most of which are subject to physical constraints that necessitate a high level of regulation. Your freedom to speak within these channels is already severely limited in both a legal and practical sense.

I think we ought to distinguish between advertising and speech. I think everyone’s got a right to express what they believe and to see if it can convince others. I don’t think the right to force your message in front of others’ eyeballs is nearly so sacrosanct. It used to be pretty difficult to disentangle these two things, but every hour we spend marching deeper into the digital age makes the distinction clearer.

Or so it seems to me, anyway. I’m not claiming that our existing set of campaign finance laws is coherent; I’m not claiming that engineering a legally defensible alternative would be easy (though I have some ideas, many of them admittedly involving a jackboot on the throat of television ad sales executives). But I do think that the conversation about money’s role in politics needs to be tied more closely to a conversation about broadcast media’s role in politics. Personally, I think the latter is both a huge waste of resources and a wellspring of perverse incentives for politicians and the electorate. And I don’t think it deserves to hide within the aegis of rights that we quite correctly treat with reverence.

4 Responses to “some probably dumb thoughts about the tenability of campaign finance laws”

  1. Eric Mill

    The first thing that comes to mind are exasperating words like “inconsistent” and “unintended consequences”. Can you really legally single out traditional broadcast media outlets for regulation of political expression? I’m not saying that web videos or web-enabled TVs are going to overcome traditional broadcast dominance for even the next two decades, but pretty much every medium out there is gradually dispersing itself into many little pockets. Can it be legally argued that NBC has hit some sort of critical mass where their influence has transcended “speech” or “press”, without stomping on videos that individual people actually do make themselves but then reach 100 million people regardless? The chances of that happening increase with every presidential election cycle.

    I ask these questions seriously, because any conversation about broadcast media’s role in politics is crucially tied to them, and I don’t think the answer is trivial or settled.

  2. Evan

    I think that you have a decent idea there with the ‘advertising is not quite speech’ thing. I think that it’s a decent line to draw in general.

    A federal sales tax on advertising would generate revenue streams that you could route to all sorts of worthy things, including matching funds for under-capitalized candidates.

  3. Tim Lee

    It used to be pretty difficult to disentangle these two things, but every hour we spend marching deeper into the digital age makes the distinction clearer.

    Can you elaborate on this? It seems to me that the emergence of organizations like Fox News and the Center for American Progress make it less clear. Isn’t a super-PAC a timeshare version of what Rupert Murdoch does in volume?

  4. Tom

    I meant to gesture at what Eric alludes to above: digital technology means that the cost of distributing a message to people that are interested in it is negligible. These days, dollars spent on communication are dollars spent in an effort to *force* people to hear your message, not merely to enable them to hear it at all.

    (I really like the timeshare turn of phrase, btw)

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