This the ninth story in a series comparing the U.S. system of politics and elections with other democracies around the world.
Since most of the money spent on politics in America is actually spent on campaign ads, the ads (which I discussed in an earlier installment) can’t easily be separated from the issue of campaign finance.
The question might be framed this way: Can a society that values freedom of speech as a bedrock principle impose any limits on the amount of money that interested parties can pour into electing those who favor their agenda or defeating those who oppose it?
The U.S. Supreme Court, in the cases of Buckley v. Valeo (1976), Citizens United (2010) and most recently McCutcheon v. the FEC (2014), has basically said no, meaningful, enforceable campaign-finance limits cannot help but undermine the First Amendment guarantees of freedom of expression.
Other democracies — including many nations that value freedom of expression and including other nations in which spending regulations have been appealed to the highest courts — have come to a different conclusion.
The U.S. Supremes have not said “anything goes,” but it often seems they might as well have.
In fact, by allowing certain things to be prohibited (the court found, for example, that the U.S. Constitution permits a limit on the amount one individual can give directly to one candidate’s campaign committee), the court fostered the bizarre system under which most of the ads on TV are sponsored by so-called “third parties” operating under tortured sections of the tax code with melodic names such as 501(c)(3) and (c)(4) that enable them to evade the intent of all the laws and rules adopted by past Congresses to limit campaign giving and spending and the influence of money over politics.
The “SuperPACs” and their various cousins are able to do this without making it very easy for voters to figure out who is behind the ads, as they operate under ridiculously unhelpful names parodied perfectly by Stephen Colbert’s gag SuperPac named “Americans for a Better Tomorrow Tomorrow.” In fact, an unofficial division of labor has emerged in which a candidate’s own campaign can leave the scummiest “messaging” for the third party actors, which means the candidate can see his opponent attacked viciously without having to put his own voice in the ad saying he “approved this message.”
(In Minnesota, we actually aren’t getting the full bombardment of attack ads this year, since our U.S. Senate and gubernatorial races are not deemed quite close enough to attract the really big national money.)
The rulings that led to this are sometimes summarized in two short phrases as saying the “money equals speech” and “corporations are people.” Neither of those phrases appear verbatim in the rulings, but here’s a key passage from which the “money equals speech” idea is usually taken. It is originally from the Buckley ruling, and Justice Anthony Kennedy included it again in his majority opinion in Citizens United:
A restriction on the amount of money a person or group can spend on political communication during a campaign necessarily reduces the quantity of expression by restricting the number of issues discussed, the depth of their exploration, and the size of the audience reached. This is because virtually every means of communicating ideas in today’s mass society requires the expenditure of money. The distribution of the humblest handbill or leaflet entails printing, paper, and circulation costs. Speeches and rallies generally necessitate hiring a hall and publicizing the event. The electorate’s increasing dependence on television, radio, and other mass media for news and information has made these expensive modes of communication indispensable instruments of effective political speech.
But England and France are both free countries that value free speech, so how can they ban political ads? In part because the courts in those countries have decided that while political money may have something to do with speech, it also has something to do with the domination of political discourse by those with money.
I’m not saying that striking a proper balance between freedom of speech and other values is a simple question or an easy call. But we are not the only society in the world that places a high value of freedom of speech, so in the spirit of this series it seemed reasonable to look around the world and see how some other highly developed democracies dealt with the same dilemma.
Canada and free-speech limits
The Canadian equivalent of the Bill of Rights is called the Charter of Rights and Freedom. It guarantees (among other things) “freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication.” But the Canadian charter says in the introductory clause that these rights are “subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”
I like that language. Our constitution doesn’t have much like it.
Anyway, it came in handy for the Canadian Supreme Court in the 2004 case of Harper v. Canada. (I note that the Canadian case preceded Citizens United.) The Canadian court faced a challenge to the then-new Canada Elections Act of 2002. That law had limited third parties to spending $150,000 to try to influence an election. (By “third parties,” in this context, we are not referring to political parties themselves but outside organizations who seek to influence elections.)
Stephen Harper, who has since been elected prime minister, representing the Conservative Party, was then running a conservative lobby called the National Citizens Coalition (somewhat similar to Citizens United). Harper’s group decided to challenge the spending limit on free-speech grounds.
National Citizens prevailed in the lower courts, but the Supreme Court of Canada decided that limiting how much an outside group could spend was acceptable when taking into account some of the other balancing considerations that “can be demonstrably justified in a free and democratic society.” The majority ruling of the Canadian high court said:
The harm that Parliament seeks to address in this case is electoral unfairness…. While the right to political expression lies at the core of the guarantee of free expression and warrants a high degree of constitutional protection, there is nevertheless a danger that political advertising may manipulate or oppress the voter. Parliament had to balance the rights and privileges of all the participants in the electoral process.
The court paid respect to three “pressing and substantial” objectives that Parliament hoped to accomplish by limiting third party spending: “(1) to promote equality in the political discourse; (2) to protect the integrity of the financing regime applicable to candidates and parties; and (3) to ensure that voters have confidence in the electoral process.”
If allowed to stand, the law would (the court wrote):
prevent those who have access to significant financial resources, and are able to purchase unlimited amount of advertising, to dominate the electoral discourse to the detriment of others;
create a balance between the financial resources of each candidate or political party; and
advance the perception that the electoral process is substantively fair as it provides for a reasonable degree of equality between citizens who wish to participate in that process.
The Canadian court decided, while political speech deserves a high level of constitutional protection, the other considerations mentioned above should be counted in the balance. It then deferred to Parliament in deciding how that balance should be struck. So Canada does allow campaign advertising and does allow spending by third parties. It just allowed Parliament to limit the amount one of those organizations can spend.
British court rulings
Something similar happened in Britain (where, as you know, all political TV ads are banned). An animal rights group wanted to advertise in favor of changes in the law. It was not permitted. Animal Defenders International sued for the right to advertise and the case went all the way to the House of Lords, which acts in some matters as the supreme court in the UK. The ban was upheld, with Lord Bingham (baron of Cornwall) writing for the court that once paid advertising was allowed into politics, “elections become little more than an auction.”
Animal Defenders didn’t settle for Lord Bingham’s ruling. They took the case all the way to the high court of the European Union, which operates under the European Convention on Human Rights guarantee that “everyone has the right to freedom of expression.” By a squeaky 9-8 vote, the Grand Chamber of the European Court of Human Rights ruled that the UK could keep its ban on political advertising.
Oxford law professor Jacob Rowbottom, who followed the case closely, confirmed to me in an email exchange that yes, “the decisions in Animal Defenders International stands in stark contrast to Citizens United, McCutcheon, etc. Here free speech is valued and protected under Article 10 of the ECHR, but that permits limitations that serve either rights and interests. So, here the court is willing to permit some (but not any) regulation of speech that will help secure a fair election and present voters with diverse views.
“What is very different here is that the courts are willing to recognize political equality and distortion of the process as justifications for limiting expression. By contrast, in the US, prevention [of corruption] is the only justification recognized to limit election spending. The two [nations] have very different understandings of what free speech requires and where it stands in relation to other rights and interests.”
