Cross-posted from Balkinization:
Egalitarian arguments in the US for regulating campaign spending almost always stop at regulating money in the context of elections. But why don’t the same arguments also extend to regulating spending in the context of public debate more generally? That is, if the leading issues of the day are health-care or environmental policy, does the egalitarian view on money in democracy lead to the conclusion that government ought to be able to cap the amount any particular individual or entity can spend to try to influence the public on climate change, or Obamacare, or anything else? Why should the egalitarian argument for limiting spending on elections stop at elections – doesn’t that argument logically extend to limiting spending on public debate more generally? Does democratic equality matter only in elections and why should it not matter more generally?
The narrower and much criticized anti-corruption justification for campaign-finance regulation has an answer to these questions. Only candidates for office can be corrupted. Even if we reject Buckley v. Valeo’s distinction between contributions and expenditures and take the view that both can corrupt candidates, it still is a candidate for office whose corruption we are concerned about. But in the context of general public debate, the public cannot be “corrupted” in the same sense by money spent to influence views –there is no quid pro quo, even on the most expansive definition, possible between the undifferentiated public and those actors who might spend money on policy ads for or against certain issues. Thus, limiting regulation to the election context makes sense on the corruption rationale because only in elections are there candidates who can be corrupted.
But if you accept the egalitarian rationale, then the reasons for distinguishing between elections and public debate more generally becomes more difficult to understand as a matter of principle. I raise this question in part because many European systems that regulate spending in elections do also regulate spending on public debate more generally, although this fact is not, I believe, widely known. For example, many European countries impose bans on “paid political advertising” on television and radio altogether. The specifics of these bans vary. In the UK, the ban applies to any ad “directed toward a political end” or on behalf of an entity that is mainly a “political” entity. When governments justify these bans on paid political advertising – which, again, apply at any time, whether or not an election is pending – they make virtually the same arguments about “distortion” and “equality” that egalitarian campaign finance reformers in the United States make.
Thus, the U.K. Parliament argued in court that the ban was necessary to “avoid the unacceptable risk that the political debate would be distorted in favor of deep pockets funding advertising in the most potent and expensive media.” Asserting that the objective of the law was to “enhance the public debate,” the U.K. asserted that “[u]nregulated broadcasting of paid political advertisements would turn democratic influence into a commodity which would undermine impartiality in broadcasting and the democratic process.” Switzerland, defending a similar ban on broadcast political ads in another case, similarly asserted the ban was “aimed at enabling formation of public opinion protected from the pressures of powerful financial groups, while at the same time promoting equal opportunities for the different components of society.” Similarly, Norway argued that its ban was “aimed at supporting the integrity of democratic processes, to obtain a fair framework for political and public debate and to avoid that those who were well endowed obtained an undesirable advantage through the possibility of using the most potent and pervasive medium.”
Those challenging the bans on political ads in these cases, all which were decided by the European Court of Human Rights (ECHR), were small animal-rights groups or minor political parties. For present purposes, let’s leave aside the specific outcomes; the ECHR first tried to carve out exceptions for certain groups, then more recently upheld the power of countries to ban paid political ads, despite the First Amendment-like provisions in the European Convention on Human Rights. As a matter of principle, what do campaign finance egalitarians believe about whether there is any reason that the egalitarian argument should not be extended to limiting spending on public debate more generally? I cover these cases on bans regarding paid political advertising, and others from the ECHR involving the structure of democracy, in this recently posted essay, Supranational Courts and the Law of Democracy: The European Court of Human Rights.