A Review of Justice Stevens’s Senate Testimony

Having explained my position that Justice Stevens’s act of testifying before the Senate Rules Committee on campaign-finance reform was unethical, I’ll now offer some observations on the substance of Stevens’s testimony, the brief text  (1000 words or so) is available here.

1. Stevens argues that campaign-finance rules “should create a level playing field” and “should give rival candidates—irrespective of their party and incumbency status—an equal opportunity to persuade citizens to vote for them.”

This strikes me as worse than quixotic, as dangerously foolish. What does the goal of a “level playing field” even mean? Should candidates whose qualifications and positions earn them ardent support—whether in campaign contributions or volunteer help—be required to share that support with less able candidates? Should reporters and editorialists be required to accord equally favorable treatment to all candidates? (Stevens’s proposed amendment wouldn’t go that far, but his rationale would.) Should some bureaucrat be determining which candidate advantages are fairly earned and which aren’t?

2. In support of campaign-finance rules that distinguish “between money provided [to candidates] by their constituents and money provided by non-voters [whether corporations or non-residents],” Stevens cites a recent decision upholding a federal statute that prohibits foreign citizens from spending money to support or oppose candidates for federal office. He then makes this extravagant argument by analogy:

During World War II, the reasoning behind the statute would have prohibited Japanese agents from spending money opposing the re-election of FDR but would not have limited their ability to broadcast propaganda to our troops. Similar reasoning would justify the State of Michigan placing restrictions on campaign expenditures made by residents of Wisconsin or Indiana without curtailing their speech about general issues.

While very skeptical, I’m open to being persuaded that such restrictions might comply with the First Amendment.* But comparing corporations and residents of other states to enemy aliens in wartime isn’t a good start.

3. Stating that “money is not speech,” Stevens asserts “financial activities should not receive the same constitutional protection as speech itself.” Why not? “After all, campaign funds were used to finance the Watergate burglaries—actions that clearly were not protected by the First Amendment.” (That’s the entirety of his argument.) I don’t see what that has to do with anything. I’d instead recommend Eugene Volokh’s short video, “Is Money Speech?

Overall, a very feeble performance. (Stevens didn’t take questions—perhaps in recognition of the ethical minefield in which he had placed himself—so there is nothing beyond his testimony.)​

* Of course, if Stevens is maintaining that his proposed constitutional amendment is necessary to impose the distinction he favors—it’s not clear that he is—then the First Amendment would be no obstacle (if, that is, the distinction is “reasonable”​).

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