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The recent masterstroke by Steve Simpson and Paul Sherman in the Wall Street Journal offers yet another explanation as to the weird absurdity of the current campaign finance laws, whose complexity defies description, especially by folks like myself who think that the FEC has better things to do with its time.
Simpson and Sherman take the occasion to lampoon that master lampooner, Stephen Colbert, who makes his living by making other people look like fools when they crave center stage. But in this instance, he broke his own rules and decided to go solo, at which point his own actions became a delicious point of self-parody.
Colbert’s modest ambition was to set up his own Political Action Committee to articulate his own inarticulate substantive views. But he works for a corporation, Viacom, which is subject to many of these rules, among which are those that prohibit in kind contributions to political groups. These rules are strictly needed in the bizarre world of campaign finance for otherwise it would be child’s play for the astute corporation to circumvent the basic prohibition of giving cash by giving services in question. Colbert works for a station, and even if he dictates the content, Viacom’s material support of his actions is enough to trigger the potential application of the law.
So he hires a lawyer to get around the prohibition and finds that it is not as easy as one might think. It turns out that the concern with circumvention leads to a regulatory arms race where clever private parties concoct schemes that conscientious regulators are then duty bound to forestall. The cycle continues without end because the stakes are so high.
In the middle of this mix comes Citizens United, which holds that under the First Amendment, these endless restrictions amount to an unprincipled limitation on speech. I have already taken the position that this decision was correct for a somewhat novel reason. The corporation is subject to enough private restraints that make sense that it need not be subjected to government constraints that don’t make sense.
The point was clear enough if one looked to see the number of corporations that flocked to defend their rights of speech. There were no ordinary corporations that signed up. They all have products to sell and customers to satisfy. Those customers who agree with the message, whatever it is, will think that the world is a better place. But they won’t double their purchases. Those who disagree with the message will organize boycotts and public denunciations.
Who needs it? The better strategy by far is to let individual shareholders and officers make their own contributions, and to keep the corporate political powder dry so that it can be used to support or oppose specific pieces of legislation with a direct impact on the company, all of which are out from under the Citizens United constraints about electioneering speech within 30 days of an election.
One reason, therefore, why the Court’s majority was right was that government constraints aren’t needed where private ones work so well. To see, just ask what Viacom might do if it could not hide behind the finance laws. It would face some heat because of Colbert’s positions. It could limit that speech by contract, or it could support some rival on another show. Or it could just let it pass knowing that other producers—think Fox—have more conservative commentators.
So we can all save a bundle by putting the speech police out to pasture. We might hear more and perhaps learn less. But we could at least divert lots of resources from silly policing activities into more productive uses—like getting the next Stephen Colbert on the air.Published in