The Supreme Court’s recent decision to overturn some key sections of the Bipartisan Campaign Reform Act of 2002, better known as McCain-Feingold, was widely praised in libertarian and conservative spheres for bolstering the First Amendment. Why regulating so-called ““electioneering communications” was even a point of debate in the first place is a bit difficult to understand; it would seem that a law designed to limit any form of speech, let alone free political speech, is clearly unconstitutional. Congress shall make no law…abridging the freedom of speech is fairly unambiguous, and makes no mention of whom or where that speech comes from.
Yet from the reaction of the political Left (and some elements of the populist Right), you’d think that by loosening restrictions on corporate spending on political advocacy, our government instantly transformed into the fascist corporatocracy prophesized by the Michael Moores and Naomi Kleins of the world—a government where our representatives are bought and paid by Big Business and our legislature is dominated by special interests looking for special favors. I’m not sure how this is substantively different from the status quo, so I don’t think harpies screeching about the “death of democracy in
But this brings me to a larger point, one that most commentators in support of the Supreme Court’s ruling have been unfortunately silent on. How did we get to this point in the first place—the point where the death of a law that clearly violates one of our most sacred principles is so fervently mourned by populists and other defenders of the mythical “little guy” everywhere? Is it not ludicrous to believe that once the government has begun limiting any type of speech for any reason, it will be able to restrain itself to the relatively narrowly defined types of speech laid out in McCain-Feingold?
The answer should be simple, even if it isn’t apparent to those bemoaning the Court’s ruling: the government, not some shadowy coalition of mega-corporations, has too much power. Were the government constrained to the powers clearly defined in the Constitution, the ability of legislators to secure favors or special consideration for interest groups, and thus, one of the primary motivations for interest groups to contribute heavily to legislators or their campaigns, would disappear.
After all, once the government usurps a bit more power and decides it can control or regulate a given aspect of the economy, any rational (if not ethical) businessman will try to use that power to his competitive advantage. Eliminate that ability to influence the market from the floor of Congress or from within some drab, faceless bureaucracy, and suddenly, the businessman needs to provide the consumer with a superior product to turn a profit instead of regulating his competition into the ground. Why spend millions electing a Senator when you realize that there is no way for you to score kickbacks once he makes it to the Senate?
The most frustrating part about this debate is that those calling for a strong, equally unconstitutional response to the Supreme Court’s ruling are typically the very same individuals who push for increased government control over our lives, whether from the right or from the left. Powerful, well-funded unions stand to gain at least as much as any anti-competitive corporation does in a situation where government is involved in every aspect of our personal and competitive lives. So long as government is able to exert power, you can be sure that there will be ways to take advantage of that power, McCain-Feingold and legislation notwithstanding.
Responding to the calls to curtail free political speech that will almost certainly arise in the wake of the Supreme Court’s ruling is going to demand more than just solid, conservative/libertarian-based policy reform. Simply striking down new incarnations of McCain-Feingold as they spring up isn’t going to be enough. Instead, think tanks, pundits, and individuals that believe in true freedom for the “little guy” need to seize this opportunity to present a vision of a future where government is so small and powerless that campaign-financing laws become irrelevant.
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