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Selling the Constitution


Washington.--Truck scales will be needed to weigh the printed words spoken in coming weeks on campaign finance reform. Yet the only campaign law appropriate for a free society would contain just four words: "No cash; full disclosure."

One reason "reform" is being pushed is to defuse the drive for term limitations for senators and congressmen. But the reform bill being debated in the Senate is fresh evidence of the need for term limits. It proves that the political class in its quest for protected incumbency would trample the Constitution.

The bill would create an entitlement of least $200 million (indexed to rise) for politicians in order to empower the government to stipulate the permissible amount of political speech. The bill offers "incentives" for candidates to accept taxpayer financing in exchange for spending limits. But the incentives are blatantly coercive.

The consensus of professional politicians and professional reformers is that political spending is "too high." But when congressional campaign spending in 1992 was 52 percent higher than in 1990, that was a sign of civic health -- a 68 percent increase in the number of candi- dates. The 470 House and Senate elections in 1992 cost $678 million, about 40 percent of the sum Americans spent on yogurt.

Spending limits generally handicap challengers' abilities to compensate for incumbents' advantages -- name recognition, access to media, franked mail, the use of modern government's myriad favor-buying activities. A ban on contributions by political-action committees would simply cause more money to come into the process from individual contributors, or as "soft" money spent on behalf of candidates by non-party organizations like labor unions. (The bill bans "soft" money for parties, a traditional Republican advantage. Democrats benefit disproportionately from non-party soft money, so the bill leaves that unrestricted.)

Fortunately, the Supreme Court has held that the First Amendment requires solicitousness "for the indispensable conditions of meaningful communication." Because soap boxes and stumps are inadequate venues for the dissemination of opinions to a complex continental nation, the court has given constitutional status to the thought that "money talks." Spending is indispensable for effective free political speech. To limit the former is to limit the latter. The court has held that mandatory spending limits are unconstitutional; it almost certainly would hold the new bill's provisions unconstitutionally coercive.

Under its provisions, a candidate who refused to take tax dollars in exchange for spending limits would be denied the broadcasting and postal discounts given to government-funded candidates. And if the privately funded candidate exceeded the speech limits -- that's what spending limits are -- that the government-funded candidate is held to, the government-funded candidate would get a much more than merely compensating infusion of additional tax dollars. The penalties for a privately funded candidate exceeding the government speech ration also include clearly punitive bookkeeping requirements.

Furthermore, with amazing crudeness the bill would require all privately funded candidates to include in their broadcast advertisements the statement that "the candidate has not agreed to voluntary campaign limits." An American Civil Liberties Union dissection of the bill tartly notes that the bill's sponsors would not consider the following an acceptable alternative statement: "The candidate has chosen not to sell his First Amendment rights to the government in order to be permitted to spend tax dollars." Fortunately, the court has held that the First Amendment protects the freedom to chose "both what to say and what not to say."

Because money is fungible, attempts to regulate it in order to ration speech must beget a huge speech-policing bureaucracy and a mare's nest of rules. Suppose candidate Smith favors, and candidate Jones opposes, intervention in Bosnia. Suppose citizen Green runs a substantial advertising campaign opposing inter- vention. Is that a "soft money" contribution to Jones? If Smith is taxpayer-financed and Jones is not, would Green's expenditure trigger a "compensating" taxpayer subsidy to Smith? Imagine how gargantuan the Federal Elections Commission will be when it is policing permissible speech in upward of a thousand Senate and House primary and general elections every two years.

The court has held that "it is not the government, but the people -- individually as citizens and candidates and collectively as associations and political committees -- who must retain control over the quantity and range of debate on public issues in a political campaign." Were the political class serious about opening the political process and leveling the field for challengers and incumbents, it would turn not to public financing, which the public opposes, but to term limits, which 75 percent of the public favors.

True, public financing would eliminate fund raising, the most tiresome aspect of careers devoted to politics. But there should not be such careers. And until the political class will accede to term limits -- or, what is much the same thing, until it will allow a constitutional amendment limiting terms to be considered by the states -- nothing should be done to make the life of the political class less disagreeable.

George F. Will is a syndicated columnist.

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