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Line Blurs Between Campaign Contributions, Bribes

Nicholas Johnson

Des Moines Register

July 5, 2006

See below for supportive Des Moines Register Letters to the Editor on this topic from Bob Jewett, Diane Krell and Rob Robinson.

For more Nicholas Johnson commentary on political topics, see*%20Politics.

[Note: This material is copyright by the Des Moines Register, and is reproduced here as a matter of "fair use" for non-commercial, educational purposes only. Any other use may require the prior approval of the Des Moines Register.]

To claim that "Spending money to further political views is freedom of expression, pure and simple," states both too much and too little. (Editorial, "Don't Force Limits on Campaign Donations," June 26).

My commitment to the First Amendment began with a clerkship to U.S. Supreme Court Justice Hugo L. Black, and only intensified since. But the more one learns, the more complex free speech becomes.

Does speech require words? Not always. You can burn the U.S. flag in protest. That's protected "speech." (The proposed constitutional amendment sought to reverse that decision.) But when a Vietnam draftee burned his draft card in protest his "speech" wasn't protected.

The court has long held that "Congress shall make no law abridging the freedom of speech, or of the press" constrains all governments, not just federal. But it does not apply to other institutions. Owners of newspapers have First Amendment rights against the government (although sometimes are intimidated, even prosecuted, for what's published). But no one, not editors, and certainly neither journalists nor subscribers, has free speech rights against that owner.

The government often engages in "abridging the freedom of speech." A pharmaceutical company is told what it cannot say in its annual report, and must say in its television ads (drugs' side effects). Food labels' "speech" is "abridged." Advertising, if "false and misleading," no longer has the protection of "speech."

What the FCC adjudges "indecency" in broadcasting is heavily fined, not heartily protected. Humor is unprotected when joking around airport security.

Thus, it's entirely too facile to assert that a stack of $100 bills "is freedom of expression, pure and simple."

Indeed, it's not always. Under slightly different circumstances, the same participants, exchanging the same money, are engaged in punishable "bribery" not protected "speech."

In Washington's current "culture of corruption" the gossamer line between "campaign contributions" and "bribery" is see-through thin. Special interests buy their legislation.

In the online version of an earlier op-ed on these pages, "Campaigns: You Pay $4 or $4,000" [], I've documented that campaign contributors get a 1,000-to-one return on their "investment." Give a million, get a billion in government largesse. This "public financing of campaigns" takes the form of an extra $1,000 at the pharmacy and gas pump rather than an extra $1 on the tax return. Not a very good deal.

The cancer has spread from Washington to Des Moines and other state capitol buildings. Until removed, candidates are just blowing smoke when promising improved health care, education or environmental protection. Campaign finance reform simply must be everyone's first priority if their second and third priorities are to have a prayer.

The recent editorial did present its argument. What it did not do was to acknowledge the problem and propose solutions.

Solutions do exist and have been enacted by progressive states from Maine to Arizona. Candidates don't have to opt in, but most do — by getting a large number of small contributions. With that money in a common fund, the rest is contributed from public funds. Candidates get what's needed for reasonable but effective campaigns. Citizens get to pay the actual costs of campaigns rather than 1,000 times that amount in corporate welfare and higher prices. Officials judge legislation on its merits.

Once Iowa has such a system, there will be time enough to debate whether the erosion of our democracy's foundation from special interests' cash investments in officials deserves First Amendment protection as "speech."

NICHOLAS JOHNSON, a former commissioner, Federal Communications Commission, who has run for Congress, teaches at the University of Iowa College of Law.

Des Moines Register Letters to the Editor

July 8, 2006

Campaign Contributions Are Not Free Speech

In handing down its decision on Vermont’s campaign-contribution limits, the U.S. Supreme Court, despite dancing all around the issue, let it be known that the thin crust of America’s ruling elite still does not trust the rest of us.

The idea that money equals free speech is, on the face of it, absurd.
The landmark Buckley vs. Valeo brought together as plaintiffs strange bedfellows: then-U.S. Sen. James Buckley of New York — brother of National Review founder William F. Buckley — and anti-Vietnam War and liberal darling former U.S. Minnesota Sen. Eugene McCarthy.

The American Civil Liberties Union argued that without the unlimited donations of a few wealthy contributors the Democratic Party would have stifled McCarthy’s anti-war message, thereby effectively ending his campaign.

Since then, politicians have devolved into professionals more concerned with chasing contributions than governing. Candidates’ primary qualification these days is that they are good fund-raisers, not that they have strong positions on any given issue.

A nation dedicated to the proposition of one man/one vote, a right fewer and fewer are exercising, is steadily declining into plutocracy — government for and by the wealthy.

— Bob Jewett, Des Moines.

In response to the Register’s June 28 editorial, “Don’t Force Limits on Campaign Donations,” you conclude that “Spending money to further political views is freedom of expression, pure and simple.” Does anyone else see the irony in this statement?

And isn’t it an oxymoron when people argue that money equals “free” speech? I would argue just the opposite. Our political system is beholden to those (often corporations with the very deep pockets) who are able to contribute large sums of money to political campaigns. And it is these very same large contributors who have the greatest opportunity to influence the outcome of legislation as well as who gets elected.

— Diane Krell, West Des Moines.

I was disappointed to read your June 28 campaign-contributions editorial. Defining money as a form of free speech is wrong. Further, there is no absolutely free speech. Yelling “Fire!” in a crowded theater is not protected free speech, nor is using speech to incite a riot.

With no limits on campaign contributions, we might as well dispense with elections altogether. We could, instead, auction off our offices to the highest bidder. That is about what goes on today.

— Rob Robinson, Des Moines.