California Forum

Jessica A. Levinson: Expand free speech by limiting political money

Californians took a leap of faith 40 years ago and sought to revolutionize elections and politics. In 1974, by a ratio of 2-to-1, voters approved Proposition 9, a ballot initiative that created California’s Political Reform Act.

The Political Reform Act is long and complicated, but the short version is that the act controls issues related to the financing and disclosure of candidate and ballot measure campaigns in California.

The shorter version is that because of U.S. Supreme Court decisions, we will not see, in the short term, many of the reforms envisioned by the original Political Reform Act.

I spoke last week at a conference at McGeorge School of Law marking the 40th anniversary of the act’s passage. I was honored to participate. But you’ll have to excuse me because I am just a bit gloomy.

The Political Reform Act created a world that is entirely foreign to us now.

Imagine a world in which contributions to and expenditures by candidates and ballot measure committees are limited to reasonable levels. And envision, if you will, that in that world independent expenditures are similarly limited.

In this world, legislators do not spend nearly half of their time fundraising. Money does not influence nearly every stage of the political process – from who runs for office to what is discussed in political campaigns, to (sometimes) who is elected, to which bills are written, introduced and voted on. It’d be a wonderful world.

That world does not, of course, exist. But it was the world envisioned back in 1974 when California voters voted to enact the Political Reform Act. The United States Supreme Court stripped us of that world in 1976, in a landmark decision called Buckley v. Valeo, in which it ruled that campaign expenditures are equivalent to speech.

It is difficult to overstate Buckley’s importance. It has left us with our current framework of limited contributions and unlimited spending, and politicians’ endless fundraising treadmill.

But I have something to tell you. There is no tooth fairy, Santa Claus does not exist, and money is not speech. Seriously, it just isn’t. Money facilitates speech. Money allows politicians and political committees and others to reach a wider audience with greater frequency. Let’s stop this nonsense. Money and speech should not be treated as equivalent.

Restrictions on money spent in campaigns can actually promote speech interests. Yes, that’s right. Campaign finance laws and the First Amendment can live side by side, and restrictions on political money can foster a broader and more elucidative political marketplace.

When campaign contributions and expenditures are limited, we could hear from a greater diversity of speakers. Instead of having political campaigns dominated by wealthy interests and individuals who want to flex their checkbooks, we could hear from others who cannot, or do not want to, spend large sums to reach us.

The Internet surely is changing and democratizing the way we reach each other, but as it stands, political campaigns remain expensive endeavors. If and until political campaigns become low-cost enterprises, people with money will exert influence over our elections and elected officials.

So I am a little tired of trying to think of reforms that seem at best to incrementally improve our system, and at worst are window dressing used by politicians as talking points.

I am tired of giving my students bad answers like: “Well, the Supreme Court has really tied our hands” when they ask how they can work to improve what many of them see as the undue influence of large donors over our elected officials. Most of all, I am tired of court rulings that misunderstand the First Amendment and the political system.

Although the legal framework has failed us, we can help ourselves. The role of money in politics will decrease when spending large sums of money becomes a bad decision that turns off the voters. We still have an important role to play here.

Two-thirds of voters went to the ballot in 1974 and voted to create that different world. That strikes me as a tremendous act of confidence and idealism. Forty years later, plenty of smart and earnest people are talking about ways to strengthen those laws in our imperfect legal world. So let’s stay a little angry, and maybe a little bit optimistic.