Was Madison Wrong?

Edward J. Erler
Co-Author, The Founders on Citizenship and Immigration

Edward J. Erler is professor emeritus of political science at California State University, San Bernardino. He earned his B.A. from San Jose State University and his M.A. and Ph.D. in government from the Claremont Graduate School. He has published numerous articles on constitutional topics in journals such as Interpretation, the Notre Dame Journal of Law, and the Harvard Journal of Law and Public Policy. He was a member of the California Advisory Commission on Civil Rights from 1988-2006 and served on the California Constitutional Revision Commission in 1996. He is the author of The American Polity and co-author of The Founders on Citizenship and Immigration.

The following is abridged from a speech delivered at Hillsdale College on February 7, 2002, at a seminar co-sponsored by the Center for Constructive Alternatives and the Ludwig von Mises Lecture Series.

In 1792, James Madison wrote that the natural right to property was the most comprehensive of all the natural rights that provided reservations against governmental sovereignty. “In its larger and juster meaning,” Madison wrote,

the right to property embraces everything to which a man may attach a value and have a right; and which leaves to every one else the like advantage. In the former sense, a man’s land, or merchandize, or money is called his property. In the latter sense, a man has a property in his opinions and the free communication of them. He has a property of a peculiar value in his religious opinions, and in the profession and practice dictated by them. He has a property very dear to him in the safety and liberty of his person. He has an equal property in the free use of his faculties and free choice of the objects on which to employ them. In a word, as a man is said to have a right to his property, he may be equally said to have a property in his rights.

Madison thus viewed the right to property as the comprehensive right which assumed a kind of priority in the political community.

The right to property, of course, is not mentioned in the Declaration of Independence. It is a part of the “pursuit of happiness.” Here I use an Aristotelian formulation to explain the Framers’ understanding of the relation between property and happiness: Property is a necessary but not a sufficient condition of happiness. Happiness requires property, but the possession of property is not the sum total of happiness.

Life and liberty, of course, can be maintained if property is lost. Property lost can be regained; liberty lost can be regained only with the greatest exertions. Thus it is wise to take alarm at the slightest inroads upon the rights of property. The right to property thus serves as a kind of “early warning system” to invasions of life and liberty. Madison’s emphasis on the right of property stems from his awareness that life and liberty are mainly jeopardized through the violation of property rights—that government’s demands on citizens bear most immediately and visibly on their property, whether through direct taxation, confiscation, or regulation of the use of property. It is therefore prudent, Madison reasoned, to make property the test and measure of liberty.

Campaign Finance Regulation and the Administrative State

The campaign finance reforms now passing through Congress constitute a massive assault on both freedom of speech and property rights. If signed into law, they will go far in the direction of consolidating the power of the administrative state. Free elections, of course, are the hallmark of republican government; and the electorate has proved resistant to attempts to extend the power and reach of the administrative state. Indeed, in recent years, the electorate has expressed a decided preference for smaller and more limited government. This tendency of the electorate, I believe, has been a great spur to reform efforts on the part of the minions of the administrative state.

Richard Gephardt, the minority leader in the House of Representatives, recently made this startling announcement: “What we have here are two important values in conflict: freedom of speech and our desire for healthy campaigns in a healthy democracy. You can’t have both” (emphasis added). For Gephardt and the supporters of reform, a “healthy” campaign is one where campaign expenditures are limited in the name of “fairness.” As a matter of fairness, we are told, those who are wealthy should not have greater access to political speech. In the words of Cass Sunstein, a prominent academic advocate of reform, “Laws that restrict expenditures on campaigns have been justified as an effort to promote political deliberation and political equality by reducing the distorting effects of disparities in wealth.”

Thus supporters of reform dismiss First Amendment concerns with unabashed casualness. The highest imperative of the administrative state, of course, is not liberty, but rather a complete regime of regulation. Campaign finance reform shows the administrative state at its worst, working by indirection and deception.

Government as Faction

It is said that the goal of campaign finance regulation is two-fold: to reduce corruption or the appearance of corruption, and to equalize the relative abilities of individuals to influence the outcome of elections. Reformers believe that any system of private campaign financing will be corrupt, because it translates inequality of wealth into inequality of political power and influence. Thus public financing of elections, or severe limits on campaign spending, are said to be imperative to deliberative democracy. Reform will increase access to electoral politics, we are told, and will give a more egalitarian cast to the electoral process. And to the extent that it is more egalitarian and less corrupt, it will be more just.

No system of private campaign financing can be egalitarian, of course, because in a free society there will inevitably be wealth disparities. Because “healthy” campaigns will not reflect the influence of wealth, such campaigns will themselves eventually become a factor in the redistribution of wealth. Thus in the eyes of campaign finance regulators, the exercise of the right to property is antithetical to the right to liberty. In their eyes, Madison was wrong when he argued that the two rights were compatible, and that every individual, in addition to a natural right to property, had a property in his rights, especially the free communication of ideas.

Government control over campaign finance will inevitably mean government control over politics. Government regulation of campaign finance is inseparable from government control of the electoral process itself. In this sense, government will not be just a neutral regulator, but a faction with an interest to promote—the extension and perpetuation of the administrative state.

The Court’s Role

In 1976, the Supreme Court heard a challenge to the Federal Election Campaign Act of 1971. In Buckley v. Valeo, the Court invalidated portions of FECA that put spending limits on the direct expression of political opinion, but upheld contribution limits unrelated to direct expression. The Court reasoned that “every means of communicating ideas in today’s mass society requires the expenditure of money.” But the Court noted that it violated the core principles of the First Amendment to “restrict the speech of some elements…in order to enhance the relative voice of others.” Indeed, the Court said,

the First Amendment denied government the power to determine that spending to promote one’s political views is wasteful, excessive or unwise. In the free society ordained by our Constitution, it is not the government but the people—individually as citizens and candidates and collectively as associations and political committees—who must retain control over the quantity and range of debate on public issues in a political campaign.

While the Court was undoubtedly right in this statement of general principle, it is difficult to justify the distinction it made between campaign contributions and campaign expenditures. The Court said that there could be no restrictions on the amount of money a candidate spends on his own behalf, or on the amount an independent organization spends on behalf of a candidate. In these instances, it ruled, First Amendment liberties were implicated because the money was spent directly on expressive activities. Contributions, on the other hand, are used to promote the speech of someone else, and can therefore be limited and regulated. The precise distinction made here by the Court defies reason. Contributions to finance the speech of those with whom one agrees or wishes to promote are no less speech activities than if one uses the money for his own speech. If I give money to someone—say, a young and relatively unknown successor to Abraham Lincoln—who can articulate my political ideas better than I can, these are no less my political ideas than if I gave voice to them myself. The distinction between spending and contributions is not mandated by any known principle of First Amendment jurisprudence and is alien to the Framers’ understanding of both property rights and political liberty. Subsequent court cases, however, have extended the reach of allowable prohibitions and restrictions. Those who confidently predict that the Supreme Court will strike down the current regulations on First Amendment grounds are being unreasonably optimistic.

Gainers and Losers

Far from equalizing access to the electoral process, spending limits work in favor of those who already hold office and make challenges difficult. Incumbents have name recognition and can use all the advantages of office-holding to keep themselves in power. Complex election regulations and reporting requirements make it difficult for challengers: the start-up costs are enormous and much of the limited spending must be used for high administrative costs. Nor are incumbents unaware of the advantages of campaign finance regulations—why else propose that most political advertising be banned 60 days before the election, i.e., at the time when it matters most?

The media will be the largest beneficiary of this regulation. It will exercise its First Amendment freedoms without restrictions and will endorse candidates—both openly through editorials and deceptively under the guise of news analysis. Thus the press favors campaign finance reform as much as incumbent politicians. How else can we account for the media’s fawning over John McCain in the last primary season?

Only a few politicians dare to point out the First Amendment implications of reform. Gephardt was unusually honest (or unusually confident) when he called for the repeal of the First Amendment’s protection of political speech. After all, the surface attractions of campaign finance regulation seem to be popular; what reform promises, however, it simply cannot deliver. Reform works to the advantage of incumbency, and a career in politics may be a greater spur to corruption than campaign contributions.

Campaign finance reform co-opts politicians into the administrative state. In return for powerful incumbency protection, politicians are eager to transfer a significant portion of First Amendment liberties to the regulators who populate the administrative state. As Madison would have argued, this is a cure that is worse than the disease.