Suppose that I think George W. Bush’s presidency has been a miserable failure. Actually, you don’t have to suppose, because I actually think that. And suppose I find a couple of dozen other people who agree with me. All of us want to convince other people of the same thing (that George W. Bush’s presidency has been a miserable failure), but none of us alone has enough money to buy a radio or TV ad. So we pool our funds and come up with enough money to buy an ad blasting the current administration for the miserable failure that it is, in the hope that other citizens will come to support our position.
The activity I’ve just described would seem to be the essence of free speech, no? And yet the Supreme Court has just upheld a ban on precisely that kind of activity.
Yesterday’s Supreme Court decision upheld campaign finance regulations of two distinct varieties. First, it upheld restrictions on donation of “soft money” to political parties. While I think such restrictions are terribly unwise, one can make at least a plausible argument for their constitutionality. A donation directly to a candidate or his party is not exactly the same as an independent expenditure, as Eugene Volokh argues persuasively here. (His argument, in short and probably inadequate form, is that a restriction on campaign contributions is effectively content-neutral and doesn’t even specifically target speech, since campaign funds can be used for a variety of non-speech activities.) But second, the Court also upheld a ban on “issue ads” run by interest groups, whether or not those interest groups have any direct connection with the candidate or his party. Inasmuch as an “interest group” could be any group of people associated by a common interest (such as, for instance, our interest in not having a miserable failure for a president, or not having a campaign finance law that prevents our saying so), the prohibition is not evenly targeted at the real special interests that were the alleged impetus for the law’s passage. The problem, of course, is that one person’s “special interest” is another person’s “good cause,” and the law cannot easily distinguish between them in any principled way. Nor should it try, because even true special interests have a constitutional right to speak their minds. Or did until yesterday.