Today's Supreme Court decision in
Randall v. Sorrell couldn't have come at a timelier moment. In striking down a Vermont campaign finance law that was intended to limit political corruption and the need to raise huge amounts of cash to mount campaigns Randall took the opportunity to re-affirm its 1976 decision in
Buckley v. Valeo.
I think it's important for all of us to realize that the Supreme Court's re-affirmation of Buckley today, ties very intimately into the current flag burning amendment debate! Maybe this needn't be a total loss after all. Jump.
Buckley v. Valeo came about because of a challenge to a Nixon-era campaign finance reform law, The Federal Election Campaign Act (which also established the Federal Election Commission). That act restricted campaign contributions to politicians running for federal office, and set expenditure limits to those campaigns. Certain people, most prominently James Buckley, a Conservative Party candidate for the senate, and Eugene McCarthy, a Democratic candidate for president, sued to have the law overturned on the basis that it was an infringement on the "symbolic speech" of making campaign contributions and expenditures, an activity they asserted was protected by the First Amendment.
So, what is "symbolic speech" when it's at home? Symbolic speech is communication in which an action is integral to the message being conveyed.
Campaign contributions are symbolic speeches that communicate the message: "I desire that this particular candidate be elected." When too much private money is injected into campaigns, and especially, when money is used to lobby politicians, the message that gets conveyed increasingly becomes: " I desire that this particular candidate be elected because of what he can do for me." Obviously, that desire can be corrupt, and the message itself can become a thinly-veiled invitation to corruption. The argument for limits on campaign contributions, expenditures, and lobbying as a form of speech, is that it would squelch those invitations to corruption. Conversely, what's objectionable about laws against private funding of politician, is that they fail to protect those very same invitations to corruption.
Now, of course, nobody in public office who accepts large campaign donations or lobbyist moolah is ever going to acknowledge that the money invites them to serve the contributor at the expense of the larger public. But the notorious difficulty of passing effective campaign reform is predicated on exactly that.
The Supreme Court needed to examine a "symbolic speech" case in order to makes its Buckley decision, and they took up United States v. O'Brien, a case involving a war-protester, O'Brien, who was prosecuted for burning his draft card. O'Brien argued that burning his draft card was protected symbolic speech.
The Supreme Court ruled against O'Brien, saying, in effect, that the laws prohibiting destruction of a draft card were aimed at protecting the draft card itself. Because of that, the Court considered that government protection of draft cards was distinguishable from any interest in opinions about the war.
(Quoted from Buckley, in reference to O'Brien, w/emphasis added): The Court expressly emphasized that O'Brien was not a case "where the [ ] governmental interest in regulating conduct arises in some measure because the communication allegedly integral to the conduct is itself thought to be harmful.
That conclusion set up the needed distinction for Buckley v. Valeo.
In Buckley, the Supreme Court overturned the limitations on campaign expenditures on the basis that the symbolic action of spending money was indistinguishable from regulation of desire for a particular candidate. The court stated:
it is beyond dispute that the interest in regulating the alleged "conduct" of giving or spending money "arises in some measure because the communication allegedly integral to the conduct is itself thought to be harmful.
Since 1976, when the Buckley decision was issued, it has become increasingly obvious to everybody that the invitation to corruption is one of the real messages behind campaign financing and especially, lobbyist spending. That message is harmful to our democracy. So, tragically, Buckley continues to protect this harmful message because the action of giving money to politicians is the message.
The irony is that Congress is currently debating whether or not to protect the flag from symbolic speech. The reason the flag needs special protection is because, according to the reasoning of the O'Brien / Buckley cases, the First Amendment doesn't protect speech if the action isn't the message, but does protect speech if the action is the message. And Congress is in the process of deciding that any desecration of the flag, just like massive infusions of private money into the political process, is the message. In order to get out from under that First Amendment protection, Congress wants to amend the Constitution.
Congress' apparent willingness to strip First Amendment protections against 'horrible, nasty messages about America,' is really pretty stupid. I think the American people can handle these kinds of nasty messages on their own.
But then again, horrible, nasty, harmful messages --messages like "I'll give you money if you put my interests above the interests of the public"-- have eluded effective regulation, just as burning the flag has eluded effective regulation. So as long as Congress is deciding that we should protect America from the harmful practice of burning flags, they might as well go ahead and put an end to the harmful practice of inviting corruption through lobbying and through the manipulation of elections by the way money is raised for them, while they're at it. They might as well strip campaign contributions, campaign expenditures, and lobby money from First Amendment protection. In the interest of consistency, of course.
It would be a great consolation prize.