Bob Kerrey and Warren Rudman

Free speech and our election laws

By Bob Kerrey and Warren Rudman
August 6, 2009

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THIS WEEK’S full Senate vote on the nomination of Judge Sonia Sotomayor to the Supreme Court brings to an end the confirmation process, which was rich in rhetoric yet lacked substantive discussion of American law.

One case that should have been examined is the Court’s recent action to rehear Citizens United v. FEC. Citizens United

Citizens United, which received part of its funding from conservative-leaning corporations, wanted to run a film on cable-TV sharply criticizing then-presidential candidate Hillary Clinton - but was prevented from doing so under electioneering restrictions in the McCain-Feingold law. The case pitted Citizens United against decades worth of FEC-enforced limits on corporate spending in federal campaigns. If the Court moves to undo such regulation this fall, it will have a profound effect on the distribution of political speech and political power in American democracy.

Campaign finance regulation, as Judge Sotomayor well knows, is not an esoteric matter. It is at the core of who runs, speaks, and gets heard in American politics. It is not surprising, therefore, that the nominee’s past rulings in support of tougher regulation have provoked a spirited debate between those supporting and those resisting the regulatory impulse.

But there is a false assumption at the center of this debate: that regulation and free speech are at odds when it comes to the role of money in campaigns. The question, as Sotomayor understands, is not whether we should regulate the transfer of private wealth between those with a vested interest in policy and the public officials who make and enforce the law; instead, it is how to fashion campaign finance laws so they meaningfully advance the legitimate aims of both sides, like preventing corruption and expanding freedom of speech.

Positively constructed campaign finance regulation and freedom of political speech are complementary components of a working campaign system. When government regulation is harnessed for the purpose of leveling-up rather than limiting-down political speech, the result is a maximization of First Amendment rights. Call it the “more speech’’ solution to the problem of free speech in campaign finance.

The challenge for campaign reformers, and the judges who keep them in check, is to fashion an affirmative regulatory system in which independent voices with funds to back them up are neither excluded from, nor exclusive in, the political debate.

A retooled system of voluntary public funding for qualified candidates, combining small donations with matching public funds, provides an alternative. The Fair Elections Now Act, debated in the House Administration Committee last week, would leave non-participating candidates, as well as independent groups, free to spend unlimited money to communicate their ideas.

But it recognizes that speech in a democratic society isn’t free when only the rich are heard. Cherishing the First Amendment requires that speech opportunities are extended to qualified political candidates irrespective of wealth. Under Fair Elections, candidates who demonstrate a broad base of public support through small donations receive competitive matching funds to run a serious campaign. In return, they agree to forgo large special-interest contributions.

As experience with public funding in states like Arizona and Maine has shown, large majorities of candidates willingly forgo the big-money game - and the countless fund-raising hours it demands - when presented with Fair Elections. We believe our former colleagues in Congress would gladly do the same if it meant legislating free from the influence, or perceived influence, of special-interest groups, even at the cost of greater electoral competition.

As the Senate prepares to vote on Sotomayor, members would do well to recognize the false choice between free speech and campaign finance regulation. A probing senator will consider what manner of regulation the nominee supports, not whether regulation at all. We trust that Sotomayor’s position is grounded in a deep respect for the First Amendment that extends speech opportunities to all citizens, alongside her firm commitment to preventing corruption through common-sense regulation.

Former senators Bob Kerrey and Warren Rudman are co-chairs of Americans for Campaign Reform.

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