February 09, 2008

The Problem Of Double Standards In Political Speech/Contribution Limitation Laws

I recently got into a bit of a debate with a Democrat over the issue of political participation limitation legislation like McCain-Feingold. Having been accused of “confusing money with speech” and “supporting the buying of elections”, I noted one of the fundamental inequities of the current law – namely that while cash and “in kind” donations are strictly limited on the assumption that a successful candidate will “owe something” to a campaign contributor who “expects something” once the recipient is in office.

However, let’s think about that for a minute. Setting aside the fact that support for such legislation betrays the low ethical standards of the proponents of such legislation, who recognize that their own willingness to be bought and sold for a few dollars cash. Let’s instead consider that such legislation does not take into account that volunteering for a campaign also constitutes the contribution of a thing of value (namely, the volunteer’s time and labor). After all, if the expertise of such an individual may be quite valuable – for example, a CPA who serves as an unpaid campaign treasurer. Why shouldn’t such an individual’s participation be capped at the number of hours that would bring their contribution to the contribution limit when valued at their standard hourly rate? After all, haven’t they effectively given the maximum contribution – and more – via their donated time and work? Can’t it be equally presumed that they “expect something” from a candidate who now “owes them” for this contributed time, work, and expertise? And what of paid campaign staffers, such as those from the Clinton campaign, who decide to forgo salaries in the interest of preserving campaign cash for their candidates. Aren't those contributions, in some cases exceeding the $2300 limit when combined wih cash contributions tehy may already have made?

What about speeches, endorsements, or commercial appearances by celebrities?
Don’t they have a high value, every bit as insidiously corrupting as a check? For example, how much does a speech by Oprah Winfrey cost? I don’t know, but I’d imagine that it would easily exceed $25,000 – if it doesn’t exceed $50,000? Shouldn’t Barack Obama and his campaign be required to count her appearances and speeches at events as in-kind contributions, given that Oprah’s product is Oprah? Moreover, if counted as such, wouldn’t that violate federal contribution limits in presidential races? What does Obama “owe” Oprah, and what is the something that she expects from him in return for her services, which are easily valued at well over ten times the legal contribution limit?

One would object, quite rightly, that subjecting Obama and Oprah to criminal or civil penalties for her political activity on his behalf would be fundamentally contrary to the First Amendment, as it would severely curtail her ability to exercise her rights under the First Amendment, despite the high cash value of this “in-kind” contribution. After all, her contribution is quintessentially American in nature.

But the reality is that the value being protected by the First Amendment goes beyond freedom of speech, press, and association -- it is the free and unfettered ability of individuals to participate in the political process, including by banding together to engage in speech on behalf of candidates. For some of us the most effective way is to give our time. For others it is the donation of needed materials. For still others it is their words. No form of contribution should be either privileged or limited, though reasonable requirements on disclosure and reporting are arguably acceptable. Let’s make all Americans and their respective forms of contribution equal again by removing all artificial government imposed limits on such all-American activity.

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