Roanoke Times
Copyright (c) 1995, Landmark Communications, Inc.
DATE: MONDAY, April 3, 1995 TAG: 9504060012
SECTION: EDITORIAL PAGE: A-7 EDITION: METRO
SOURCE:
DATELINE: LENGTH: Medium
Furthermore, private financing of Senate campaigns with money from around the nation violates the 17th Amendment stipulation that senators shall be elected ``by the people'' of ``each state.''
These audacious claims entail this astonishing conclusion: Congress' refusal to enact a particular program - public financing of congressional campaigns - is unconstitutional. Enforcing this conclusion would require of the Supreme Court judicial review not of a congressional action but of an inaction. All this flows from the ingenuity of two liberal lawyers, Jamin Raskin and John Bonifaz, and their notion of a ``wealth primary'' that ``excludes and discourages candidates and voters on the basis of their lack of wealth and their lack of access to wealth.''
In 1992, Susan Molinari, an incumbent Republican congresswoman from New York, defeated Sal Albanese. In 1994, Albanese decided against a rematch because he concluded it could not be a fair fight - he could not get enough campaign contributions to become competitive. Now he, and some voters who say they were denied the opportunity to contribute to and vote for him, are plaintiffs in a case arguing that the Constitution, properly understood, bars all voluntary private campaign contributions. They say that equal opportunity to seek such contributions is and must ever be a chimera, and that the equal-protection clause requires that all candidates be entitled to equivalent campaign funds from the government.
In articles in Columbia and Yale law journals, Raskin and Albanese's lawyer, Bonifaz, argue that this is just an extension of the logic of Supreme Court decisions banning poll taxes and prohibitive filing fees for candidates. In 1966, the Supreme Court struck down Virginia's $1.50 poll tax, saying a state violates the equal-protection guarantee ``whenever it makes the affluence of the voter or payment of any fee an electoral standard.'' In 1972, the court struck down Texas filing fees ranging from $150 to $1,000 as ``patently exclusionary.''
However, it would be a long leap for even the most exuberantly legislative judge to join Raskin and Bonifaz in saying that in this ``polarized class-based society'' the principle of one man, one vote requires treating inequalities of wealth and fund-raising abilities as akin to government-imposed burdens such as a poll tax. It is, to say no more, strange to assert a new entitlement - a constitutional entitlement no less - to equality of potency in elective politics.
The wonder is that Raskin and Bonifaz stop short of finding a constitutional duty for the court somehow to iron out inequalities of political opportunities arising from differences among candidates in terms of attractiveness and articulateness.
It must be discouraging to Raskin and Bonifaz that the Supreme Court has held that ``the concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment.'' But the court, by being altogether too tolerant of attempts to fine-tune the ``fairness'' of political competition, has invited the sort of perverse inventiveness that finds in the phrase ``equal protection'' a mandate for government to enforce all sorts of equality, even to the point of stopping the voluntary contribution of private resources to support political discourse.
If ever the court revisits the issue of government-imposed limits on campaign giving and spending, it will conclude that all such limits constitute government rationing of political expression. Therefore, pending repeal of the First Amendment, the only permissible regulation of campaign financing can be written in 10 words: No cash contributions, full disclosure of the sources of contributions.
Until then there will be arguments for stamping out voluntary private campaign financing, and for having courts define and enforce (to take Raskin and Bonifaz's terminology) ``all citizens being meaningfully able to run for office'' and ``all social groups being fairly represented in the ranks of candidates for public office'' and the process being ``meaningfully open to non-affluent candidates.''
Such arguments illustrate the timeless tension between the pursuit of equality and the preservation of liberty. In the rough-and-tumble of the persuasion process called political campaigning, as in almost every other sphere of an open society, the following is an iron law: Attempts to achieve by government coercion that elusive, because illusory, goal of a ``level playing field'' inevitably produce instead an exponential growth of prohibitions and regulations that shrink the individual's sphere of sovereignty.
- Washington Post Writers Group
Keywords:
POLITICS
by CNB