Money isn't mentioned in the First Amendment to the U.S. Constitution, but it is the key concern as challenges to the McCain-Feingold campaign finance law move toward an ultimate ruling by the Supreme Court.
McCain-Feingold, passed by Congress and signed by a reluctant President Bush, is supposed to be about reducing the influence of money in politics, but it is being hamstrung by the fallacy that the law abridges freedom of speech.
That explains the unusual alliance of political groups and First Amendment advocates that went to federal court last week to challenge McCain-Feingold. Where else would you find the Republican National Committee and the American Civil Liberties Union on the same side?
Their lawsuits are being heard by a special panel of federal judges and then will go directly to the Supreme Court. Sen. Russ Feingold, a Wisconsin Democrat, co-author of the law, calls the action “one of the most important First Amendment cases, perhaps, in the country's history.”
While most Americans probably would not equate money with free speech in any list of basic freedoms, it is precisely this perverse notion that continues to hinder efforts to curb corruption in our representative democracy.
The link between money and speech was enunciated in a constitutional context in a 1976 Supreme Court ruling known as Buckley vs. Valeo, which overturned federal spending limits in political campaigns on First Amendment grounds.
Since then, the problem of money providing a ventriloquist's voice for a variety of special interests in politics has grown exponentially, and new spending records are set with each election.
Simply put, money talks and more money shouts. The individual or interest with the most money almost always can drown out competing voices with less money.
McCain-Feingold actually provides two points of free-speech dispute. One is its ban on soft money, the huge, unregulated contributions to political parties by corporations, labor unions, and wealthy individuals. The other is its prohibition against certain types of broadcast ads by outside interest groups within 30 days of a primary election or 60 days of a general election.
On strictly First Amendment grounds, the broadcast ban would seem to be ripe for overturning since it proscribes a particular activity deemed to be constitutionally protected, independent of how much money is spent.
The soft-money ban, on the other hand, does not restrict the actual exercise of political activity, just the amount of money that can be expended on it.
Fortunately, the courts have the discretion to knock down some portions of the law while retaining others. It is not an all-or-nothing proposition.
Political discourse is crucial in a democratic society, but the influence of money distorts the process, tilting debate inevitably toward the side with the most cash. Upholding the ban on soft money would go a long way toward correcting this imbalance.