It's Impossible to Take Money Out of Politics

But you can get money out of campaigns.

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This week's elections produced an unusual loser: money. Michael Bloomberg's spending to denounce guns in Virginia is widely credited with helping gun proponents in the closing days, and the Koch brothers' decision to pour money into defeating officials in a small Iowa town resulted in the opposite outcome. For those who think it's all about money – and for those who think this proves it isn't – well, it's a little more complicated than that.

While the current Supreme Court exhibits an extreme solicitousness for the First Amendment rights of big-spenders that it doesn't always show for non-monetary speech – see the recent argument in McCutcheon v. FEC – constitutional jurisprudence has been equating spending and speech since the far more liberal court in Buckley v. Valeo (1976). This analysis is far too facile, however: Even in areas that constitute protected rights, when money enters the picture courts have consistently found governmental power to regulate it.

For instance, the courts recognize a First Amendment right to associate (or not) with anyone of your choosing: The government can't force you to cohabitate or hang out with people you don't like, but it can require you to rent to or hire them. Conversely, most judges and scholars today accept that the Constitution contains a right of privacy that covers sexual choices, at least between consenting adults; try arguing you have a constitutional right to purchase it. Very simply, political contributions are to political speech much what prostitution is to making love.

[Check out our collection of political cartoons on Super PACs.]

Of course, that's not to say that spending money has no communicative content. Actions that contain an expressive component – a classic example being burning the flag – can constitute "speech"; the non-speech elements of such conduct can be regulated by the government, however, so long as the regulation isn't directed at the content of the speech. For instance, camping on the National Mall to protest the plight of the homeless is constitutionally-protected speech, but the government can still prohibit it in pursuit of other valid aims like keeping the parks clean.

Making a campaign contribution presents a similar situation: Governments have a clear interest in regulating the money given to government decision-makers. Nevertheless, the giving of that money has a communicative component. It says, "I support Candidate Jones." Even the very size of that contribution has independent expressive content: "I support Jones so much I'm willing to part with millions of dollars to demonstrate how strongly I feel." Billionaires have a right to this form of expression – but the "speech" can in fact be preserved while the act (lavishing money on a politician) and its untoward effects on public integrity can be regulated.

How? The expressive content at issue is the giving away of huge amounts of money, with the message that this signifies commitment to Candidate Jones – the money doesn't actually have to go to Jones or his campaign to make that statement. The current court is simply wrong in interpreting the First Amendment to protect gifts of money to politicians as pure expression; no change in the Constitution – just a change of justices – is required to remedy that.

But even that would hardly take money "out of politics." In fact, it's impossible to do so. There is no way to erect a full prohibition on spending in any way that won't influence an election: Can we constitutionally prohibit someone from running advertising saying that no-one who supported Obamacare should ever be president? Can we prohibit someone from buying media outlets and influencing their editorial stances? Of course not. The current prohibition on direct advocacy – and perhaps a ban that had real teeth on interaction between campaigns and so-called "independent expenditures" – might keep money out of "campaigns" – but they can't keep it out of politics. And they might even make things worse: Campaigns would lose control of their own messages, and bear no responsibility at all for the inevitable negative attacks. In short, campaign finance changes would likely leave the world ultimately as it is now, just more so.

[See a collection of political cartoons on Congress.]

Nevertheless, there is reason to believe – or, at least, hope – that growing levels of spending on politics won't be determinative of outcomes. It's undoubtedly true that there will be more money, and it will be looking for the newest and best ways to be effective. But there is evidence that spending ratios don't determine election outcomes – absolute levels do: As long as a candidate can raise sufficient funds to reach a minimal level of communication, he or she can defeat a much better-funded opponent. (Why that rarely happens has more to do with gerrymandering than the inability of David to defeat Goliath.)

Meanwhile, just as, for the latter half of the last century, the dominant communications technology made money much more important than when the dominant technology was, say, torchlight parades, newer technologies may blunt that effect. As Yochai Benkler notes in The Wealth of Networks, "The material requirements for effective information production and communication are now owned by numbers of individuals several orders of magnitude larger than the owners of the basic means of information production and exchange a mere two decades ago … The important new fact about the networked environment, however, is the efficacy and centrality of individual and collective social action."

In other words, most voters have grown sophisticated enough not simply to swallow everything they're spoon-fed in TV ads, and the Internet has made unlimited alternative channels of information and opinion available nearly for free. These developments have shifted the nature of persuasion, generally: Most people now seek guidance from people they know, not from elite sources. Person-to-person organizing, facilitated by the Internet, may move voters more than TV ads in the future.

That's not to say that more money can't buy more organizing capacity (see Obama for America), but it does mean that the Internet may lower the cost of campaigning effectively, as it has the cost of everything else. The rich we will have with us always – but that doesn't mean they can automatically enter the Kingdom of Heaven. At least, if it's a democracy.

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