Campaign Finance Reform
Tomorrow the Supreme Court will hear reargument in Citizens United v. FEC and consider whether to overrule Austin v. Michigan Chamber of Commerce, which upheld limits on independent corporate spending in political campaigns. Since reargument was ordered, one would think that Austin will be overruled. And that would be a good thing.
Campaign finance reform reminds me of the adage, attributed to Mark Twain, that “the more you explain it, the less I understand it.” The Government committed a classic Kinsley error — inadvertently telling the truth — when it told the Court in the first Citizens United argument that Congress could prohibit the circulation of campaign books in the weeks prior to an election. How book banning is consistent with any theory of the First Amendment is beyond me. Granted, McCain-Feingold does not regulate books, but my concern is not alleviated just because its restriction on speech falls on electronic media.
Moreover, I don’t understand how campaign finance reform is anything other than an effort to silence contrary views. One often hears that corporate expenditures must be limited because some lobbies have “too much power” in Washington. Too much compared to what? If the answer is too much to block a certain outcome, then I understand, but that’s a substantive (or viewpoint discrimination) argument rather than a process objection. Otherwise, the standard is completely unclear. How much of a say should HMOs have in the health care debate? Is there any objective answer to that? I don’t think so.