Senate Floor: CAMPAIGN FINANCE

Mr. President, I rise to call my colleagues' attention to an article by the distinguished First Amendment scholar, Ronald Dworkin, "Free Speech And The Dimensions Of Democracy." The article appears in If Buckley Fell: A First Amendment Blueprint for Regulating Money in Politics, sponsored by the Brennan Center for Justice at New York University's School of Law.

Professor Dworkin's work illustrates a point some of us made during the recent debate on campaign finance reform: the shocking state of our current political life is a perversion of the public discourse envisioned by the Founding Fathers, a perversion directly rooted in the mistaken understanding of the First Amendment underlying the Supreme Court's decision in Buckley v. Valeo, 424 U.S. 1 (1976).

As Professor Dworkin puts it, "[o]ur politics are a disgrace and money is the root of the problem." There is no need to detail the disgraceful state of our political life brought about by politicians' need to chase dollars. Members of this body, myself included, described the current state of affairs in all its painful and embarrassing detail during the recently concluded debate on campaign finance reform.

Professor Dworkin's article makes explicit what many of us have argued in supporting Senator Hollings' proposal to amend the Constitution so that reasonable limits can be placed on campaign expenditures: Senator Hollings' Amendment is not an affront to the First Amendment, as some have portrayed it; it is an affront to Buckley, which was wrongly decided. Senator Hollings' Amendment is restorative: it returns First Amendment jurisprudence to what it was before the ill-conceived Buckley decision.

In holding that limitations on campaign expenditures violate the First Amendment, Buckley mistakenly equates money and speech. But, as Justice Stevens pointed out recently in Nixon v. Shrink Missouri Government PAC, 528 U.S. 377 (2000), money is not speech; money is property.

Professor Dworkin's article shows that the mistaken factual premise in Buckley is rooted in a fundamental misconception of First Amendment jurisprudence. Senator Hollings' effort to make clear that reasonable limits can be imposed constitutionally on campaign expenditures would restore that jurisprudence by overturning Buckley.

The First Amendment and most of the important decisions interpreting it presuppose a democracy in which citizens are politically equal, not only as judges of the political process through voting, but also as participants in that process through informed political discourse. Reasonable regulations on campaign expenditures would enhance speech and contribute to a more rational political discourse. Professor Dworkin illustrates this point through a historical and philosophical analysis of First Amendment precedent and the threat that unrestricted campaign expenditures pose to the values underlying the First Amendment. Treating money as speech debases genuine democratic dialogue.

Justice Brandeis made this point in another way in his justly famous dissent in Whitney v. California, 274 U.S. 357, 375 (1927):

The damage that unrestricted campaign expenditures has done to our public discourse is clear. If money is speech, then inevitably one will need money, and large amounts of it, to speak politically. The result, in Professor Dworkin's words, is that our last two presidential campaigns were "as much a parody of democracy as democracy itself." I will not repeat Professor Dworkin's analysis of the legal precedents interpreting the First Amendment and Buckley's distortion of them, except to point to the oddity that Buckley at times recognizes the constitutional jurisprudence it undermines. It does so in holding that, in contrast to campaign expenditures where any limit purportedly violates the First Amendment, Congress may constitutionally place limits on campaign contributions. The latter holding, as Professor Dworkin points out, is premised on a principle deeply rooted in First Amendment jurisprudence: reasonable restrictions on activity in the political realm, like contributing money, may be erected to protect core First Amendment values, like equality of political discourse. That is all that most proponents of campaign reform want to do, and that is all that the Hollings Amendment will do.