[Congressional Record (Bound Edition), Volume 147 (2001), Part 5]
[Senate]
[Page 6406]
[From the U.S. Government Publishing Office, www.gpo.gov]



                            CAMPAIGN FINANCE

  Mr. BIDEN. Mr. President, I rise to call my colleagues' attention to 
an article by the distinguished First Amendment scholar, Ronald 
Dworkin, ``Free Speech And The Dimensions Of Democracy.'' The article 
appears in If Buckley Fell: A First Amendment Blueprint for Regulating 
Money in Politics, sponsored by the Brennan Center for Justice at New 
York University's School of Law.
  Professor Dworkin's work illustrates a point some of us made during 
the recent debate on campaign finance reform: the shocking state of our 
current political life is a perversion of the public discourse 
envisioned by the Founding Fathers, a perversion directly rooted in the 
mistaken understanding of the First Amendment underlying the Supreme 
Court's decision in Buckley v. Valeo, 424 U.S. 1 (1976).
  As Professor Dworkin puts it, ``[o]ur politics are a disgrace and 
money is the root of the problem.''
  There is no need to detail the disgraceful state of our political 
life brought about by politicians' need to chase dollars. Members of 
this body, myself included, described the current state of affairs in 
all its painful and embarrassing detail during the recently concluded 
debate on campaign finance reform.
  Professor Dworkin's article makes explicit what many of us have 
argued in supporting Senator Hollings' proposal to amend the 
Constitution so that reasonable limits can be placed on campaign 
expenditures: Senator Hollings' Amendment is not an affront to the 
First Amendment, as some have portrayed it; it is an affront to 
Buckley, which was wrongly decided. Senator Hollings' Amendment is 
restorative: it returns First Amendment jurisprudence to what it was 
before the ill-conceived Buckley decision.
  In holding that limitations on campaign expenditures violate the 
First Amendment, Buckley mistakenly equates money and speech. But, as 
Justice Stevens pointed out recently in Nixon v. Shrink Missouri 
Government PAC, 528 U.S. 377 (2000), money is not speech; money is 
property.
  Professor Dworkin's article shows that the mistaken factual premise 
in Buckley is rooted in a fundamental misconception of First Amendment 
jurisprudence. Senator Hollings' effort to make clear that reasonable 
limits can be imposed constitutionally on campaign expenditures would 
restore that jurisprudence by overturning Buckley.
  The First Amendment and most of the important decisions interpreting 
it presuppose a democracy in which citizens are politically equal, not 
only as judges of the political process through voting, but also as 
participants in that process through informed political discourse. 
Reasonable regulations on campaign expenditures would enhance speech 
and contribute to a more rational political discourse. Professor 
Dworkin illustrates this point through a historical and philosophical 
analysis of First Amendment precedent and the threat that unrestricted 
campaign expenditures pose to the values underlying the First 
Amendment. Treating money as speech debases genuine democratic 
dialogue.
  Justice Brandeis made this point in another way in his justly famous 
dissent in Whitney v. California, 274 U.S. 357, 375 (1927):

       Those who won our independence believed that the final end 
     of the state was to make men free to develop their faculties, 
     and that in its government the deliberative forces should 
     prevail over the arbitrary. They valued liberty both as an 
     end and as a means. They believed liberty to be the secret of 
     happiness and courage to be the secret of liberty; . . . 
     [They believed] that the greatest menace to freedom is an 
     inert people; that public discourse is a political duty; and 
     that this should be a fundamental principle of the American 
     government.

  The damage that unrestricted campaign expenditures has done to our 
public discourse is clear. If money is speech, then inevitably one will 
need money, and large amounts of it, to speak politically. The result, 
in Professor Dworkin's words, is that our last two presidential 
campaigns were ``as much a parody of democracy as democracy itself.''
  I will not repeat Professor Dworkin's analysis of the legal 
precedents interpreting the First Amendment and Buckley's distortion of 
them, except to point to the oddity that Buckley at times recognizes 
the constitutional jurisprudence it undermines. It does so in holding 
that, in contrast to campaign expenditures where any limit purportedly 
violates the First Amendment, Congress may constitutionally place 
limits on campaign contributions. The latter holding, as Professor 
Dworkin points out, is premised on a principle deeply rooted in First 
Amendment jurisprudence: reasonable restrictions on activity in the 
political realm, like contributing money, may be erected to protect 
core First Amendment values, like equality of political discourse. That 
is all that most proponents of campaign reform want to do, and that is 
all that the Hollings Amendment will do.

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