May 12, 2006

Blame the Supreme Court, not McCain

As much as I hate to defend John McCain’s position on campaign finance regulation, I must agree with Ramesh Ponnuru that conservatives criticizing McCain’s recent remarks on the issue – for example, George Will – are overreacting. Specifically, on the Don Imus Show, McCain said “I would rather have a clean government than one where quote First Amendment rights are being respected that has become corrupt.” This statement is disturbing because it posits that the constitutional right to free speech can and should be trumped by the latest good-government theory. Ramesh defends the statement by explaining that McCain “wasn't expressing disdain for the First Amendment as he understands it, but disagreement about what the First Amendment means.”

I would defend McCain’s comment from another angle: McCain was simply restating a principle set forth by the U.S. Supreme Court 30 years ago in Buckley v. Valeo, the seminal and still-governing campaign finance case. In Buckley, the Court upheld federal caps on campaign contributions after finding that
“the weighty interests served by restricting the size of financial contributions to political candidates are sufficient to justify the limited effect upon First Amendment freedoms.”
The Court identified the “weighty interests” as “limit[ing] the actuality and appearance of corruption resulting from large individual financial contributions.” In other words, First Amendment freedoms can be trumped, at least to some degree, by good-government policies.

My point is not that we should all come around to John McCain’s way of thinking. Instead, it is that the threat to free speech posed by campaign finance laws will be eliminated only when the Supreme Court corrects its 30-year-old error. Once the Supreme Court gets it right, we won’t have to worry about what John McCain thinks of the First Amendment. Until then, politicians of all stripes will find campaign finance regulation too seductive to resist.