As most American readers know by now, the New York Times reported last week that House Majority Leader Tom DeLay has paid $500,000 of his campaign money to his wife and daughter since 2001. DeLay responded angrily to the Times report, noting that other Members of Congress (including two prominent Democrats) have also put relatives on their campaign payrolls. He accused the Times of personally attacking him for ideological reasons.
Indeed, the DeLay case is symptomatic of a broader, bipartisan problem (although that does not excuse the Majority Leader, whose half-a-million-dollar payment dwarfed the other nepotistic arrangements cited in the press). Congress has closed most opportunities to give things of value to elected officials, on the ground that donors might use gifts to buy influence. Under the Buckley v Valeo Supreme Court decision, we don’t have a constitutional right to give money to politicians. However, under Buckley, we do have a right to give money to political campaigns. Electioneering is understood as a form of communication, as “speech.” Thus paying for elections is covered by the First Amendment. Congress may limit the size of campaign donations, but may not ban them altogether.
The underlying theory of Buckley implies that candidates may use donations to campaign, but not for their personal enrichment. However, most incumbent Members of the House are safe in most elections. Therefore, they are not forced by competition to spend their money efficiently on electioneering. It is hard to know how the average incumbent spends his or her money, since spending reports are not combined into one dataset that can be analyzed easily. But when reporters from the LA Times aggregated all the expenditure reports in 1992, they found that House candidates spent only 27 percent of their funds on broadcast advertising, and another quarter on other forms of campaigning (such as direct mail and canvassing). They used most of their money for activities that benefited them without advancing their campaigns: lavish travel budgets, nice offices, meals, payrolls. Thus large campaign donations made politicians’ lives more comfortable; they did not purchase “speech.”
Mr. DeLay’s contracts with his wife and daughter fit that pattern. They were campaign expenditures, thus protected as free speech under Buckley, yet their sheer size suggests that personal enrichment was a motive. The legal question becomes whether the payments so far exceeded market value that they did not represent “campaigning” at all.
Along with many other people, I feel that the Court erred in Buckley by equating “speech” with money. I would have no constitutional objection if all campaign contributions were banned. However, I don’t think that reducing–or even prohibiting–private contributions would fix the system, because wealthy interests would simply pay for their own advertising, canvassing, and other forms of campaigning. Banning independent expression is impossible if we have free speech. For instance, my blog might conceivably help or hurt a candidate, and then it would represent an “independent campaign expenditure.” But regulating my blog would violate my First Amendment rights. Thus, in my view, the only real solution is to provide free forms of communication (such as advertising time, televised debates, and mailings) that become important parts of campaigns. These free opportunities would be equally distributed to challengers and incumbents; they would be untainted by private interests; and they would be genuine “speech” rather than lifestyle-enhancements for politicians.
