Well, it seems I’ve lost my database and with it, all my past posts. That’s definately a bummer but life goes on. I’m working to rebuild the site but being visually impaired is something of an impediment. Be that as it may, I will persevere.

Please be patient as I work to get this going again.

Background

Since the revelations in the New York Times last week concerning ongoing government work to track terrorist financial dealings through international banks there have been all manner of arguments for and against the Times. On the left the argument is that the Times is just doing its job by giving the American people whatever information they possess at the moment. Bill Keller himself said the Times had determined that the people had an interest in knowing this information and that such interest overrode national security concerns.

On the right the call has been to charge Keller, et. al. with treason. The argument goes that the Times has harmed the ability of the US to go after the enemy in a time of war.

Some on both sides of the aisle seem to believe that the first amendment to the Constitution gives absolute protection to the press regardless of how improper they may act. It would seem that, unlike all other citizens, the press is immune to prosecution.

In fact the Supreme Court has ruled that the government may not engage in prior restraint, that is, they may not take any action to prevent the press from publishing any information. However, the high court also noted that once published, the press was liable for its decisions. If publishing a particular story violates the law, the publisher, writers, etc., are liable for their actions. One way of looking at this is to ask whether someone who is not in the press could reveal the same information without fear of prosecution. In point of fact, the Constitution does not allow members of the press to do what those outside the press may not do.

One point to consider is the question, what is the press? The answer to that question is very different for us today compared to those living at our nation�s founding. In the mid to late 1700s the press was simply anyone who wanted to publish their own opinions. There were any number of people who, faced with governments or officials they disagreed with, chose to begin publishing �papers� that attacked that government or official. These papers were nothing like what we think of as newspapers today. Often only one person was responsible for the entire content. No reporters were on staff to do research and nothing claiming to be impartial reporting was going on. It was typically one individual with an axe to grind engaging in a personal attempt to influence others in his area. That was the press our founders had in mind when the first amendment was written.

Today we think of the press as the organized media. Just looking at the McCain-Feingold Campaign Finance Reform Act it is clear that the whole notion of the press has morphed into something that would be unrecognizable to the founding fathers. So, on the one hand, campaign finance reform clearly violates the first amendment in its guarantee of a free press (the ability of individuals to criticize the government unhindered) but the �new� press can not only criticize the government, but actively work to undermine it even during a time of war and even in the government�s prosecution of that war. Somehow that strikes me as antithetical to the Constitution and the intent of the founders. Indeed, it is merely a perception, not a reality, unless the government is unwilling to take action to defend itself against those who would actively work to cause our downfall as a nation.

The Specifics

The Espionage Act of 1917 is very clear as to what and who is covered under its provisions.

�Whoever having unauthorized possession of, access to, or control over any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or note relating to the national defense, or information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, willfully communicates, delivers, transmits or causes to be communicated, delivered, or transmitted, or attempts to communicate, deliver, transmit or cause to be communicated, delivered, or transmitted the same to any person not entitled to receive it, or willfully retains the same and fails to deliver it to the officer or employee of the United States entitled to receive it�Shall be fined under this title or imprisoned not more than ten years, or both.�

There can be little doubt that the New York Times, its publisher, editors and writers are described in the paragraph above. Virtually every member of government, both Democrat and Republican, who was privy to the details of the terrorist finance tracking operation agreed that it was legal, had sufficient oversight, and that it was effective, having actually caught several terrorists. An extreme minority on the left who disagree have made it abundantly clear on occasion after occasion that nothing the Bush administration can ever do will be legal or right in their minds so they can safely be ignored.

Members of both parties in Congress, the Republican and Democrat chairs of the 9/11 commission, and virtually everyone in the intelligence community worked diligently to convince the Times not to publish the story. But Bill Keller ultimately decided that he was a better arbiter of what the people need to know than all those who worked to stop him. It is difficult to see how his decision can be viewed as anything but a violation of the espionage act. Of course, the argument that the Times gave aid and comfort to the enemy in time of war is also valid and that just happens to be the definition of treason.

Should Keller and others at the Times be charged with treason? I�m not certain they should. But I am convinced that at a minimum he and they should be charged with violations of the espionage act. The $10,000 fine wouldn�t mean much to the Times but 10 years in federal prison would give

Introduction

As with most every area of pubic administration and policy the issue of campaign financing is affected by multiple interests with differing objectives.� How should the electoral system of the United States be financed?� Should individual candidates raise their own funds?� Should the public fully or partially finance campaigns?� Do private contributions, particularly contributions from large corporations or interest groups, impact legislation at some later point?� These and other questions are raised with regularity today.

The perception in recent years that politics has been corrupted by money lead the Congress of the United States to pass sweeping campaign finance reform legislation.� Known as the Bipartisan Campaign Reform Act of 2002 or BCRA, and signed by President Bush on March 27, 2002, the act is a sweeping revamp of the 1971 Federal Election Campaign Act creating the Federal Election Commission and the 1974 amendments to FECA.� BCRA is both unwarranted by the reality of election campaigns and unconstitutional in its infringement on the First Amendment to the Constitution.

Among the most prominent features of this legislation is the restriction on spending and giving by corporations and individuals to political parties or other organizations that then use those funds to run �issue ads� in the media.� Further, it restricts the running of ads by anyone except the candidate within 30 days of a primary election or 60 days of a general election.� While the act as a whole is generally bad legislation these provisions violate the first amendment and must be overturned.

The Players

A number of differing groups and individuals have a stake in or have influenced the U.S. campaign finance system.� These can be divided into three broad categories.

The first category is limited government conservatives.� They tend to be constitutional constructionists who seek a literal reading of the U.S. Constitution.� They are generally opposed to any form of government regulation of campaign financing other than disclosure.� Examples are the Heritage Foundation and the Cato Institute.

The second category is big government liberals who believe that the government is there to protect us from ourselves.� They are generally supportive of any measure that gives government greater power to protect the public through regulation.� Examples are People for the American Way and OpenSecretes.org.

The final category is politicians whose primary interests have little to do with constitutionality or right and wrong.� They are interested in finding issues that can be used to advance a political career.� Examples are Senators Ted Kennedy and John McCain, strange bedfellows indeed.

Purpose of BCRA

The primary goal of BCRA is to limit the corrupting influence of money in the electoral and legislative processes.� Inherent in this proposal is the assumption that wide spread corruption exists.� And in fact, according to OpenSecrets.org, �The more money that is involved in running for office, critics say, the more influence that donors � wealthy individuals, companies, labor unions, interest groups � have over elected officials and public policy.� [i]�� They go on to say:

�With their generous contributions, soft money donors are doing more than supporting the democratic process. They are making an investment. Many of them are hoping that their contribution will pay off in the form of a policy decision or a bill endorsement at some later date.� [ii]�

The same argument has been put forth by Congressman Martin Meehan, sponsor of the House version of campaign finance reform and Senator John McCain, sponsor of the Senate version.� But are these valid assumptions?� While the proposition that money corrupts the political process may seem intuitive on the surface, is it in fact actually a problem?

Questioning the Purpose

The following table, taken from the same report quoted above would seem to support the notion that money has become a problem in electoral politics.

* Source: Federal Election Commission. Totals are in millions.
** The parties use hard money for direct contributions to candidates and other activities that advocate the election or defeat of a candidate. They use soft money for “issue ads” and other supposed “party building” activities. [iii]

As the table above shows, there has been a significant increase in both hard and soft money for political campaigns from 1992 to 2000.� Does the increase demonstrate political corruption or is there simply a presumption that it must exist as the sums of money involved continue to climb?� Unquestionably the presumption exists that money is corrupting the political process, but is that presumption founded in the facts?

A related question is this: Is the amount of money spent on political campaigns excessive, and how is excessive to be defined?� If the presumption of widespread corruption in politics is true, campaign fundraising and spending ought to be a reflection of it.� OpenSecrets.org has said,

�By most accounts, federal campaign finance laws have not achieved their desired goal of limiting the influence of well-funded special interests and deep-pocketed individuals on elections. Political parties and outside groups have taken advantage of loopholes in the law � soft money being among the biggest of them � in ways that reformers say have all but eviscerated the campaign finance system of its ability to control the flow of money.� [iv]

Is controlling the flow of money in the campaign finance system a legitimate role for the Congress?

The Question of Money in Campaigns

Does the U.S. spend too much money on political campaigns?� The news media reporting seems to reinforce that assumption.� Bradley Smith says:

��Indeed, the language in which campaigns are described in the general press constantly reinforces that perception. Candidates “amass war chests” with the help of “special interests” that “pour” their “millions” into campaigns. “Obscene” expenditures “careen” out of control or “skyrocket” upwards.� Rarely is there a dispassionate discussion of actual expenditures on politics.� [v]�

Smith goes on, �To say that too much money is spent on campaigning is to beg the question, compared to what?� [vi]� That is a fair question.� What is the standard against which �too much� is measured?� Smith goes on to make a few comparisons for the entertainment of his audience:

�For example, Americans spend more than twice as much money each year on yogurt as on political campaigns.� As the Washington Post reported recently, �Close to $100 million will be spent promoting the ‘Seinfeld’ launch into syndicated reruns this fall–more than it costs to run a presidential campaign.�� [vii]�

Smith estimates that total congressional campaign spending for the 1994 campaign cycle was between 1.5 and 2 billion dollars.� Admitting that this set a new record for campaign spending Smith notes that the total averages out to between $7.50 and $10.00 per eligible voter.� Concluding, Smith says,

�When one considers that that money was spread over several candidates, it is hard to suggest that office seekers are spending obscene sums attempting to get their messages through to voters. By comparison, Americans spent two to three times as much money in 1994 alone on the purchase of potato chips.� Procter & Gamble and Philip Morris Company, the nation’s two largest advertisers, spend roughly the same amount each year on advertising as is spent by all political candidates and parties.� [viii]

One is left with the conclusion that the assumption that too much money is being spent on election campaigning seems to be faulty.� The perception appears to be fueled by the media and those politicians interested in campaign finance reform.� If spending in elections is not excessive, what of the claims that money is buying elections?

Clearly money is necessary for success in electoral politics.� Without money a candidate has little or no ability to get his or her message out to the voting public.� In today�s media centric world, money for television, radio and print ads is an absolute requirement for electoral success.� And that money has to come from contributors either directly to campaigns or through parties and interest groups.� Smith notes that while, in general, larger campaign spending tends to translate into greater electoral success, it is not universally true and while a relationship exists, care must be taken when interpreting that relationship as causal. [ix]� Smith goes on to point out that, �Michael Huffington, Lewis Lehrman, Mark Dayton, John Connally, and Clayton Williams are just a few of the lavish spenders who wound up on the losing end of campaigns.� [x]

One fact that often escapes notice is the fact that increased campaign spending benefits challengers far more than it does incumbents.� According to Smith,

��studies show an inverse relationship between incumbent spending and incumbent success. Heavy spending by an incumbent usually indicates that the incumbent is in electoral trouble and facing a well-financed challenger.� But the incumbent’s added spending is likely to have less effect on vote totals than the challenger’s added spending. Thus, limits on campaign spending would hurt challengers more than incumbents.� [xi]

Money and Influence

An unintended consequence of the 1974 FECA legislation was to drive wealthy donors away from candidates and to parties.� Of course the assumption is that a large donor expects to gain some influence when legislation comes along that affects them.� While that expectation may be real, is there any indication that large campaign donations to parties or interest groups, or for that matter, candidates, translates into favorable voting on legislation?

Once again, Smith has an answer:

�In fact, those who have studied voting patterns on a systematic basis are almost unanimous in finding that campaign contributions affect very few votes in the legislature. The primary factors in determining a legislator’s votes are party affiliation, ideology, and constituent views and needs.� That has been reflected in study after study over the past 20 years.� Where contributions and voting patterns intersect, it is primarily due to the fact that donors contribute to candidates believed to favor their positions, not the other way around.� [xii]

In other words, there is little evidence that influence is being bought in terms of legislation. Certainly isolated incidences of vote buying or influence peddling have occurred through the years but those have been prosecuted under existing laws without need of new campaign finance laws.

The Question of Constitutionality

All the arguments presented to this point have dealt with whether there is a genuine need for campaign finance reform.� The evidence suggests there is not.� However, needed or not, campaign finance reform is now a reality.� What then are the constitutional consequences of this legislation?

Todd Gaziano, writing for the Heritage foundation addressed the question of whether BCFR is constitutional:

�Any bill that attempts to �equalize� citizens� political speech though criminal and civil penalties for �excessive� or �unfair� speech violates the First Amendment, which provides in plain terms that �Congress shall make no law�abridging the freedom of speech� (emphasis added).� Many provisions of H.R. 2356 are unconstitutional.� Although the constitutional debate is complicated by the convoluted nature of past laws and current proposals, the proof of the pudding is that approximately 30 of 32 similar �reform� statutes were struck down in the federal courts.� [xiii]

James Bopp quotes from the landmark Supreme Court case, Buckley v. Valeo:

�’The First Amendment denies government the power to determine that spending to promote one�s political views is wasteful, excessive, or unwise.� In the free society ordained by our Constitution it is not the government, but the people � individually as citizens and candidates and collectively as associations and political committees � who must retain control over the quantity and range of debate on public issues in a political campaign.� [xiv]

Bopp along with Richard Coleson also claims the First Amendment right of free association is compromised.� They say:

�Yet self-styled �reformers� sought to deprive the people of the foundational rights of free association and expression guaranteed by the First Amendment, and they have now succeeded in imposing BCRA on the people. The law unabashedly seeks to eliminate issue advocacy by pulling down the twin pillars of free expression and association.� [xv]

Bopp and Coleson further quote from Alexis de Tocqueville:

�Among democratic nations it is only by association that the resistance of the people to the government can ever display itself; hence the latter always looks with ill favor on those associations which are not in its power; and it is well worthy of remark that among democratic nations the people themselves often entertain against these very associations a secret feeling of fear and jealousy, which prevents the citizens from defending the institutions of which they stand so much in need. The power and duration of these small private bodies in the midst of the weakness and instability of the whole community astonish and alarm the people, and the free use which each association makes of its natural powers is almost regarded as a dangerous privilege.� [xvi]

The clear conclusion is that Americans have the constitutional right to form whatever associations they choose and that those associations have the constitutional right to express their views, political or otherwise, in any forum available to any other entity.� Any legislation that restricts these rights clearly violates the first amendment.

Conclusions

While there clearly is a public perception that politics has been corrupted by money, the available evidence does not support that conclusion.� Rather, the evidence indicates that the political system in the United States is relatively free of corruption from vote or influence buying.� The public perception of corruption seems to be more a matter of media influence than of any evidence to support the proposition.

Further, the remedies set forth for solving the imagined political corruption brought on by money work to further the advantages of incumbency rather than to level the playing field for all citizens, a state of affairs that, perhaps, has not escaped those who worked so hard for its passage.

Lastly, the remedy violates the First Amendment to the Constitution in that it restricts freedom of speech in that singular most sacred area, political speech and in its restriction on free association.