The high cost of campaign contribution restrictions
MINNEAPOLIS — Minnesota says it has 10,000 lakes. The state also has, according to Anthony Sanders, "10,000 campaign finance laws." He exaggerates, but understandably. As an attorney for Minnesota's chapter of the Institute for Justice, a libertarian public-interest law firm, Sanders represents several Minnesotans whose First Amendment rights of free speech and association are burdened by an obviously arbitrary, notably complex and certainly unconstitutional restriction.
Linda Runbeck is a Republican state legislator who is allowed to spend in her campaign — most spending finances dissemination of speech — only $62,600. She is not challenging this speech limit, although it is so low it prevents her from advertising on this city's television stations, whose broadcasts reach many of the state's voters. Rather, she is challenging the "special sources" provision that makes even more onerous the $1,000 limit on what any person can give her.
Once she has received $12,500 in contributions of between $500 and $1,000, the $1,000 contribution limit is cut in half: All subsequent contributors can give a maximum of $500. When a contributor gives more, Runbeck must return the money or contact the giver and ask if it can be divided as two contributions coming from the giver and his or her spouse.
Van Carlson is one of Runbeck's constituents. He is only moderately affluent, but he wants to be able to give at least the permissible $1,000 to legislative candidates. If, however, 12 others have already given $1,000 to one of them, he can give only $500 to that candidate. As IJ's Sanders says, "No other state restricts what ordinary people can give to candidates because of what other ordinary people have already given."
The "special sources" restriction was vulnerable to a constitutional challenge even before April, when the Supreme Court decided the McCutcheon case. In it the court invalidated the $48,600 "aggregate limit" on contributions to candidates for federal offices. The unreasonableness of this was obvious: If a person could give the $2,600 maximum to 18 candidates without a danger of corruption or the appearance thereof, why would giving $2,600 to a 19th candidate pose this danger?
The court has repeatedly held that prevention of quid pro quo corruption (contributions purchasing specific favors) or the appearance of it is the only permissible reason for contribution limits. And the court has repeatedly stressed that "leveling the playing field" — equalizing candidates' quantities of permissible political speech — is an impermissible reason for limiting contributions: "The concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment."
That, however, was among the Minnesota Legislature's rationales for the "special sources" limit. Conceivably, the Legislature was not entirely altruistic with rules that are more handicapping to challengers than to officials who enjoy the many advantages of incumbency.
Eugene McCarthy, a Democrat who represented Minnesota in the U.S. Senate from 1959 to 1971, said that in Washington anything said three times is deemed a fact. It is constantly said that today's campaign regulations are "post-Watergate" reforms. Many were indeed written after the Nixon-era scandals. But the push for more government regulation of political speech began because Democrats were dismayed by what McCarthy accomplished in 1968.
McCarthy's challenge to President Lyndon Johnson for that year's Democratic presidential nomination was potent only because five wealthy liberals who shared McCarthy's opposition to the Vietnam War gave him substantial sums. Stewart Mott's $210,000 would be $1.4 million in today's dollars. The five donors' seed money enabled McCarthy to raise $11 million ($75 million today). Today, the most a wealthy quintet could give to help an insurgent against an incumbent would be $13,000 (five times the individual limit of $2,600).
But of course. Class solidarity unites incumbent politicians of all stripes, and all the laws that ever have regulated campaigns, or ever will regulate them, have had or will have one thing in common: They have been, or will be, written by incumbent legislators. This is why such laws are presumptively disreputable and usually unconstitutional.
Which Minnesota's "special sources" regulation is in saying that it is fine for 12 people to give Runbeck $1,000, but Minnesota would somehow be injured if Van Carlson then gave her $1,000. On Monday, a federal judge enjoined enforcement of this limit. The Supreme Court's rulings against federal restrictions of political speech are now scythes for mowing down states' restrictions.
George Will is a syndicated columnist in Washington, D.C. Email him at firstname.lastname@example.org.