The speech tax - The Political Professional

A mugger puts a .44 magnum to your head, kindly asks for your wallet, and you hand it over. Would you call your response "voluntary?" Some bureaucrat points the Federal Election Campaign Act at you, says if you spend one penny over Congress' new spending limit your campaign will be taxed at the full corporate rate, and you say: "Okay, I'll comply with the limit." Would that be "voluntary?"

The Supreme Court, in Buckley v. Valeo, recognized that in political campaigns, spending equals speech. Communicating an unfiltered message to large electorates requires expensive paid media. Therefore, government-mandated spending limits are an unconstitutional violation of the First Amendment. However, the court held that the government could essentially bribe candidates to limit their spending in return for taxpayer subsidies.

That's how the presidential system works: candidates who agree to limit their spending receive tax dollars. Candidates who choose not to be bound by a spending limit simply do not receive tax dollars. There is no other disparity. In the campaign finance bill passed last year by the Senate, however, candidates who don't comply with the "voluntary" limits would have their campaign receipts taxed at the corporate rate (currently 35 percent); be required to include self-incriminating disclaimers in their ads; forfeit a 50 percent broadcast discount; be denied a mail discount; and be saddled with extra reporting requirements. Moreover, if they spend even one penny over the "voluntary" limit, their opponent would receive a government grant equal to one-third of the limit. The more the non-compiler spends, the more tax dollars their complying opponent would receive.

This is not just a "bribe" to accept spending limits -- this proposed legislation effectively breaks your legs, arms and ribs if you don't "voluntarily" comply. As The Godfather would say, "It's an offer you can't refuse."

Groups seeking to influence election outcomes through independent expenditures also would get hammered. Under the Senate bill, if David Duke were running for Congress and the NAACP or B'nai B'rith spent money opposing him, Duke would be eligible for dollar-for-dollar matching funds from the Treasury.

The American Civil Liberties Union has joined me in opposing both the Senate and House campaign finance bills. There is nothing voluntary -- or constitutional -- about spending limits when opting out results in a 35 percent tax and a battery of other penalties. The only constitutional means of promoting spending limit compliance is through up-front taxpayer-funded incentives -- just like the presidential system.

But spending limit proponents have a problem: taxpayer financing of elections is about as popular as congressional pay raises. So, to get a campaign finance bill out of the Senate last year, a punitive tax on campaigns that exceed "voluntary" spending limits was substituted for up-front taxpayer funding. This was an admission that taxpayer funding -- an entitlement program for politicians -- was death, politically. Overlooked was the fact that the speech tax is death, constitutionally.

Spending limits are undemocratic, suppress political discourse, distort the process, and require an army of bureaucrats to enforce and administer.

The push for spending limits is based on three false notions: (1) there is a "money chase;" (2) campaigns spend too much money; and (3) special interests buy elections.

The "money chase" is a myth. The fact is, 80 percent of the money in Senate races is raised in the last two years of the six-year cycle. A couple years out from an election, most Senators assess their situation and raise money accordingly. If they foresee serious competition, they raise a lot. If not, they hardly bother. Which is better?

Many of the high-dollar campaigns actually spend much of their funds on raising more money through high-overhead direct mail. It's not time-consuming and it minimizes contact between donors and candidates. Spending limits would compel candidates to raise money through low-overhead but time-consuming personal contacts. Which is better?

In 1992, campaign spending increased 52 percent, the number of candidates increased 68 percent, and both voter turnout and congressional turnover increased. It was an extraordinarily competitive election year, a cause and effect of increased campaign spending. What's wrong with that?

"Special interest" is in the eye of the beholder. Is it your lumber company employer? Or the environmentalist who would sacrifice your livelihood for an owl? We are a nation of competing "special interests" and ought to be able to slug it out in campaigns, through limited, publicly disclosed contributions to the candidates of our choice. That is what free speech is all about.

Under the guise of sanitizing politics, the "speech tax" tramples constitutional rights. If Congress does not kill it, the Supreme Court will.

Mitch McConnell (R) is a U.S. Senator from Kentucky.

COPYRIGHT 1994 Campaigns & Elections, Inc.
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