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Amend the First Amendment

According to the news, Oregon Legislators are in the process of drafting rules "discouraging" lawmakers from accepting campaign contributions while the legislature is in session (The Oregonian, 1/13/00). The discouragement is to take the form of disclosure of the amount, the contributor, and the recipient - in the official written record. House Majority Leader Karen Minnis indicated any more restrictive measures could violate free speech rights.

Under the US Constitution (Buckley v. Valeo, 424 US 1, 19 (1976)), and now according to a decision by Oregon's Attorney General, money is speech and, as such, is constitutionally protected under the First Amendment. Therefore, it would seem, discouraging campaign contributions is no different from discouraging other forms of expression.

However, officially discouraging free speech, especially political speech, even with legalistic disclosure requirements, would seem to be an impermissable governmental interference with a protected right. Requiring disclosure of campaign contributions is no different than requiring disclosure of promises of future campaign money - or other promises or general persuasive speech. However, in Buckley v. Valeo the Supreme Court distinguished between money spent by a candidate and money spent by a contributor. On what valid logical basis this distinction rests is unclear to this writer. Thus, while expenditures cannot be limited, contributions can be, and disclosure requirements are acceptable. The special interests have found a way around the restrictions on contributions by mounting "independent" media campaigns using "soft money," focusing on the issues supported or opposed by a particular candidate, without explicitly endorsing the candidate.

On the face of it, the "money is speech" rule appears to legitimize the bribing of elected officials. The process underway in the Oregon Legislature is an attempt to make "money is speech" more palatable to the public. Requiring disclosure is an attempt to water down and evade the clear logic of the court in their holding that spending money to place media ads is a form of expression and protected. The proposed Oregon disclosure requirement is government by loophole, government by legalistic sleight of hand. Yet, by such means we cannot ever hope to take real steps toward eliminating the corrupting influence of money in our political process. The people, not the lawyers, must understand and obey the Constitution and the laws.

Government by loophole, in this instance, is government by which those who can hire expensive lawyers get to call their bribery legal. The disfunctional marriage between democracy and capitalism is nowhere more clearly revealed than in the oxymoron, "money is speech" - as if speech, along with everything else, was a commodity. Herein lies the great difficulty: how to shield the political process from the pervasive domination of money, the life-blood of our capitalist economic system. No other sphere of our society is free from the force of money; it is next to impossible for politics to become the exception - through campaign finance reform, McCain-Feingold, or other tinkering around the edges.

In Oregon we have a clear example of the corrosive effect of money on democracy. The public initiative process whereby a law or constitutional amendment can be put to a direct vote of the people requires a significant number of signatures be collected in order to qualify the measure for the ballot. Initially, the process of collecting signatures depended on volunteer petition circulators. However, in recent years, signature gathering has become an industry, with circulators paid on a per-signature basis. The result is that any special interest with enough money to spend can buy its way onto the ballot - and with enough more money can buy sufficient media coverage to dominate the public debate.

The guiding ideal of democracy is that each citizen is equal in their power to choose those who represent them and among those laws which are directly referred on the ballot. The guiding ideals of capitalism are in fundamental conflict with the premise of democracy. Capitalism cherishes inequality; the lure of the opportunity to get rich, to have more than the next guy, is essential.

The High Court's interpretation whereby spending money is declared to be protected speech is an inference by the court which is based on an obsolete provision of the US Constitution. The authors of the First Amendment could not have forseen the media circus which political elections have become. They could not have imagined the political consequences of a merger between Time-Warner and AOL, or any of the thousands of other media developments which have made political campaigning so expensive that bribery is the only way the non-rich can run for office. Amending the US Constitution wll not be easy and, in the end, it may prove impossible to modify the First Amendment in such a way as to protect the political process from corruption by our capitalist economic system.