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The Trouble With Campaign Finance Reform Laws

(Part One)

By Richard Lewis

          All the recent talk about cleaning up our government and eliminating corruption by reforming political campaigns sounds very good.  Unfortunately, the so-called reforms have just the opposite effect.  Instead of making government cleaner and more accountable to the people, these laws take power away from the people and put it in the hands of the powerful.  There are many problems with the existing campaign finance laws, and even more with the proposed reforms. 

          I have personal experience with these laws from having been a political candidate for U.S. Congress.  I also have studied these laws extensively, and, while I am not an attorney, I have a very good grasp both of the letter of the law and of the practical effects of the law.  I would like to share my experiences and insights with you so you can also be well-informed about the problems with these so-called “reforms”.  For that reason, I am writing a series of short articles on the subject, which I will publish here.  Each article will deal with a particular aspect of the campaign finance laws.

Problem #1:  The campaign finance “reform” laws give more power to the news media than to you and me.

The first amendment to the U.S. Constitution says, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech or of the press; or the right of the people to peaceably assemble, and petition the government for a redress of grievances.” 

The first amendment doesn’t say that one set of rights applies to the people and another, greater set of rights applies to corporations.  In fact, when the Constitution was adopted in 1789, its guarantees applied only to “living beings”.  It was not until 1886, ninety-seven years after the U.S. Constitution was adopted, that the Supreme Court held that corporations would have the same rights as a person.  But even then the court said the “same rights”, not “superior rights”. However, the practical effect of our current campaign laws and of the proposed new laws is to give corporations superior rights to living people.

In 1974, Congress passed the Press Exemption Act.  This law exempts newspapers, cable television networks, and broadcasters from the federal election laws.  This means that the news media can do anything they want without fear of violating the law, while you and I must now be very careful about participating in the political process, because we can easily find ourselves in trouble with the law.  Not only does this violate the Constitution’s guarantee of equal protection under the law, but it simply is not fair.  If anyone should have the freedom to participate in the political process and to speak out in favor of or against certain policies or candidates without restriction, it should be the American people.

Now, let me give you an example of something that a newspaper can do that could get a private citizen into trouble.  Newspapers regularly endorse candidates for political office, telling us who they think are the best candidates and why.  They print up their endorsements in their newspapers and distribute thousands of these endorsements to all their readers.  And that is perfectly legal.  However, if you or I print up thousands of flyers endorsing our favorite candidates and explain why we prefer those candidates, we, and the candidates we endorse (who may have no control over us), may very well be found to be in violation of the campaign finance laws.  Similarly, television broadcasters can endorse candidates and beam that endorsement to thousands of viewers without fear of being in violation of the law, but, if you or I bought television ads for our favorite candidates, we, and the candidates, could quickly find ourselves in violation of the law.

By taking the freedom of speech away from individuals, these campaign laws prevent us from participating fully in the political process.  Our country's tradition is full of individuals speaking out by printing and distributing leaflets and booklets.  These individuals were not part of the "establishment news media", and they were frequently afraid even to sign their names to their writings.  Would the American Revolution even have occurred without Thomas Paine's (originally anonymously-published) pamphlet "Common Sense"?  Flyers and leaflets opposing British tyranny were an important part of inspiring Americans to secure their rights.  Surely, the revolutionaries who saw the value of free speech did not intend that Congress could pass laws that protected the free speech of the media establishment while taking that right away from the modern day Thomas Paines.

Ask your elected officials and candidates whether they think the media establishment (including foreign owned newspapers and cable networks) should have more freedom to influence U.S. laws and elections than U.S. citizens.  Ask them where in the Constitution it provides greater freedom to the press than to individuals.  Then ask them what they plan to do to remedy this serious problem, which, instead of cleaning up politics, actually shifts the power away from the people to the entrenched establishment interests.