As election 2012 progresses, there’s continuing hubbub about the Supreme Court’s 2010 Citizens United decision, which paved the way for super PACs. Proponents of campaign-finance laws see the ruling as opening the floodgates for unlimited, often undisclosed, money to overwhelm our political system. Opponents view it as a victory of free speech over government regulation. Where does the truth lie? While super PACs may be “speaking” up a storm, it’s now difficult to hear anyone else. That can’t be good in a representative democracy, which has long prided itself on protecting free speech. A quick tour through the campaign-finance law landscape demonstrates there is much to be concerned about — unless you’re a wealthy donor or well-funded corporation.
It begins with the Supreme Court’s seminal 1976 Buckley v. Valeo decision. The court analyzed the constitutionality of Congress’s first comprehensive campaign-finance scheme, passed in the wake of Watergate. It essentially found that money spent in elections ? both by candidates and independent groups ? should be treated as speech and protected by the First Amendment. So expenditure limits are virtually guaranteed to be found invalid. But campaign contributions are less “speechy” and so subject to a slightly lower level of review. That’s why courts often uphold contribution limits.
This created the “Buckley bifurcated framework,” which managed to unify critics on both sides of the campaign-finance divide. Each found something to deride. Regulation proponents decried equating money with speech while striking down expenditure limits. They rightly predicted this would lead to endless fundraising. Regulation opponents condemned the contribution limits, which, in their view, allowed government to trample speech rights. But a decision made in the name of protecting speech rights actually did the opposite. Now it’s the people with the most money who can speak longest and loudest.