In the analysis of Walter Mondale’s anonymous 1956 University of Minnesota Law Review student note, the second requirement of effective campaign finance reform that included expenditure limitations was the centralization of authority in the candidate for all sums spent in the candidate’s behalf. Mondale expressed concern that vesting a candidate with authority to limit the speech of his supporters might be inconsistent with the First Amendment. (Recall again that this was a time when liberals cared about such things.)
Further, even if a statute narrowly tailored to prohibit independent expenditures in behalf of a particular candidate passed constitutional muster, it was “improbable that legislation could be drawn which prevented circuitous avoidance of established limits.” Interest groups could aid the candidate by making expenditures advocating the policies he favored; independent groups could be established for the same purpose; and unions could make large expenditures advising members of the dangers or advantages of particular candidates.
In short, Mondale concluded, reform efforts geared to controlling expenditures seemed “inadvisable becuase of the improbability that reasonable limits could be determined or maintained, or that legislation could be drawn that could not be [evaded].” Mondale therefore urged that removal of expenditure limits be considered and that primary emphasis be given to public disclosure of campaign financing.
The present system of federal campaign finance law dates to 1974, when Congress enacted reform legislation that included a complex set of expenditure and contribution limitations as well as reporting and disclosure requirements. The Supreme Court struck down the expenditure limitations as unconstitutional infringements of free speech rights and generally upheld the remaining provisions.
The surviving contribution limitations — limitations exacerbated by the Bipartisan Campaign Reform Act of 2002 — raise in one form or another all the problems Mondale diagnosed with respect to expenditure limitations. In the 1997 White House ceremony announcing the formation of his commission, Mondale referred to “the nightmare of the present campaign finance system.” Unfortunately, neither he nor his liberal allies ever drew the connection between that nightmare and the earlier dream of reform.
The Mondale of 1956 understood that political speech was at the core of the protection afforded by the First Amendment and that a system of financial limitations on political speech was necessarily arbitrary if not destructive. The current liberal orthodoxy was best articulated by Richard Gephardt, who famously contended that “[w]hat we have is two important values in direct conflict: freedom of speech and our desire for healthy campaigns in a healthy democracy. You can’t have both.” As a precocious law student nearly 50 years ago, Walter Mondale persuasively rejected this utterly vapid contention that has become the law of the land with a vengeance.
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