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What’s Wrong with Campaign Finance Regulations?

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As reported in Pro-Business Ruling Likely in High Court Campaign Finance Case, it appears likely the U.S. Supreme Court will overturn some federal laws that ban corporate and union expenditures in election campaigns, and some older caselaw that permitted such legislation. Libertarians, and some conservatives, typically have a kneejerk opposition to such regulations based on the argument that such action is protected as “free speech.” In my view, it’s a stretch to classify money donations as “free speech.” Come on. It’s not speech, it’s money. Not that this should matter–it’s not relevant whether the First Amendment includes the “right to donate campaign money” or not–the Ninth Amendment prohibits an implication that just because a right is not included in the Bill of Rights means it is not a right. Further, the primary protection of rights from invasion by the feds was the enumerated and limited powers scheme of the federal government: there is no grant of power to Congress to censor speech, nor to regulate money-donations.

But the state already puts eligibility conditions on who can run for or hold office–age limits and natural-born citizenship limits for President, non-felony status for other seats, US citizen status, and so on. These conditions are not that objectionable since no one has a right to hold office, or even to run for office. Thus, I view (some) campaign finance regulations as a type of condition of holding office. In effect, a limitation on donations to a campaign can be viewed as a rule saying, to a candidate, “If you accept $$ in the following manner, you may not hold this office.” Viewed this way, the regulations are not a limit on the freedom of the donors, but on the rights of the recipient to hold office–but since no one has a right to hold office, this is not objectionable–or at least, not as objectionable as limitations on free speech or the right-to-donate-money.Of course, such reasoning cannot be used to prevent donations of money to an independent group not controlled by the candidate. Those regulations simply fall under the Tenth Amendment (forget about the contorted “free speech” argument using the First Amendment) because the federal government has no power to prevent A from donating money to B. But if A donates money to candidate C, the state can effectively limit this donation by preventing C from taking office if he accepts this donation.

(N.B. for those unable to comprehend narrow points: I am not justifying campaign finance regulations, and in fact am against anything the federal government does except commit suicide. What I am criticizing here is the sloppy “free speech” based arguments against campaign finance laws. For other “contrarian” libertarian arguments, see my Supreme Confusion, Or, A Libertarian Defense of Affirmative Action, A Libertarian Defense of Kelo and Limited Federal Power, and Happy We-Should-Restore-The-Monarchy-And-Rejoin-Britain Day!.)

Stephan Kinsella is an attorney in Houston, director of the Center for the Study of Innovative Freedom, and editor of Libertarian Papers.

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