Limiting Free Speech (36): Are Restrictions on the Financing of Political Campaigns a Violation of Freedom of Speech?

Whether or not, to what extent and it which manner the law should regulate the financing of political parties, candidates and campaigns, is a difficult question for democracies. Two democratic values –  freedom of speech and equal influence – seem to be incompatible.

Equal Influence

On the one hand, a democracy adopts the ideal of “one man, one vote“. That means that everyone’s voice should have equal weight, and every person should have equal influence in the decisions on who gets elected and which laws are passed. If you don’t want people to have equal political influence, you don’t adopt the principle of one man, one vote. Then you give some people more votes than others or you just exclude some people from the right to participate in elections.

Restrictions on party financing – such as maximum amounts for donations, prohibitions on donations by corporations etc. – are designed to enforce equal influence (or better promote equal influence, because other elements beside money can give some people more influence than others – talent for instance). If rich people or rich corporations are allowed to donate without limits, it’s likely that the political beneficiaries of these donations will give more attentions to certain interests than to others and that the ideal of equal influence recedes into the background.

What is necessary is that political parties be autonomous with respect to private demands, that is, demands not expressed in the public forum and argued for openly by reference to a conception of the public good. If society does not bear the costs of organisation, and party funds need to be solicited from the more advantaged social and economic interests, the pleadings of these groups are bound to receive excessive attention. John Rawls

Freedom of Speech

On the other hand, democracies, by definition, care a lot about human rights, including freedom of speech. It’s impossible to imagine a democracy functioning without freedom of speech and many other human rights. The problem is that party financing and political donations are clearly acts of speech. By donating to a party, you state your political preferences.

Restrictions on political financing are restrictions on freedom of speech in another way as well. Take the case of “Hillary: The Movie“, an unbelievable piece of shit attacking Hillary Clinton. As all pieces of shit that have taken the form of speech, it should be protected by the First Amendment. Freedom of speech doesn’t only protect thoughtful and interesting speech. And yet the distribution of the movie was hampered by the threat of fines. The Bipartisan Campaign Reform Act of 2002 – also known as the McCain-Feingold Act – bars corporations or labor unions from financing the broadcast of election messages before elections. The movie in question violated this rule. And it’s a sensible rule from the point of view of equal influence. If you allow people with deep pockets to flood the airwaves with biased messages – especially around election time – you are likely to influence the outcome of the elections in a way that favors the interests of those deep pockets. Most democracies have rules like this in place.

So not only direct donations to parties or candidates can be restricted, but also the indirect use of funds for the benefit of parties or candidates. Restrictions on funding the broadcast of political views is even a more direct restriction on freedom of speech than the restrictions on donations to parties or candidates.

The question now is whether these are legitimate and acceptable restrictions on freedom of speech. The U.S. Supreme Court will soon decide on this, and is likely to throw out all restrictions.

It’s not a simple question of free speech against democracy. These two ideals aren’t contradictory. Democracy needs free speech, so limiting free speech for the sake of democracy doesn’t make a lot a sense. However, democracy doesn’t just need free speech, it needs some level of equal freedom of speech. If the voices of the strongest always silence the voices of the weaker – the less talented speakers, the shy, the people without money to buy advertising time, to finance “movies” or to “buy” politicians – I think it’s fair to say that we have strayed a long way from democracy. One person’s right to free speech shouldn’t overwhelm another’s right. It’s a fundamental principle in the whole system of human rights that these rights are equal rights. In a way, this is similar to the problem of the heckler. In this post, I defended heckling as a legitimate exercise of the freedom of speech, on the condition that it doesn’t destroy someone else’s right (the heckled in this case).

On the other hand, you could say that unlimited financing rights promote rather than destroy equal influence and equal rights. For two reasons. If donations are widespread, the risk that politicians become dependent on particular private interests and start to favor certain elements in society, is diluted. And there’s also the fact that incumbents usually have no problem getting their message across. They have easy access to the media. Challengers on the other hand often need relatively large sums of money to do the same. Restrictions on financing could favor incumbents. However, unlimited financing rights – because they are unlimited – benefit incumbents and challengers equally. So this argument based on the needs of challengers unwillingly makes the case in favor of regulation.

It seems that everyone is in favor of some kind of regulation. It’s the precise nature of regulation that is contested. I’ve proposed a system here.