It is quintessentially American to be exquisitely sensitive to threats to liberty. Any country born with the motto "Don't tread on me," could hardly be otherwise. We worry about limits on flag burning and flag waving, about whether Nazis can march in Jewish neighborhoods, under what conditions artists funded by the government can produce art that is offensive to the public, the extent to which terrorists enjoy the right to counsel, and even the applicability of US Constitutional rights to illegal combatants caught in a foreign land. Yet, the focus on these questions can largely obscure sweeping threats that are far more pervasive and more directly threatening to American liberty. The implicit limitation of free speech hiding under the euphemism of campaign finance ``reform'' represents just such a threat.
The dynamics of calls for such reform are relentless. As governments grow more and more intrusive in the economy, government decisions rather than impersonal market forces determine economic winners and losers. As a consequence, there are stronger and stronger incentives to influence such decisions. As the perception of influence grows, so do cynicism about the influence and calls for regulation.
The 1974 campaign finance bill, following the Watergate scandal, limited individual contributions to $1,000 per candidate per election, political action committees (PACs) were limited to $5,000 per candidate per election, candidates spending of personal funds was capped and expenditures by independent groups was constrained to $1,000 per candidate per election.
In Buckley v. Valeo, the Supreme Court agreed that the law was far too expansive. While limitations on spending might avoid the "appearance of corruption," this argument could hardly be made against a candidate spending his own money. This limitation was struck down. Limitations on spending by independent groups were ruled a violation of the First Amendment.
After all the dust had settled, in exchange for some government financing, candidates could agree to spending limits. Direct contributions to candidates are called "hard money." Contributions to political parties for general party activities fall into the category of "soft money." Campaign ads paid for by soft money near the time of an election are not permitted to directly advocate the election or defeat of a candidate.
Ever clever, political professionals adapted to these new restrictions. Campaign ads for using soft money became cleverly disguised ads that supported general themes that helped or hurt various candidates. Money also flowed to independent groups to make the case for and against independent candidates.
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