Update campaign law without treading on 1st Amendment

This editorial appeared in the Miami Herald.

In endorsing Barack Obama for president, former Secretary of State Colin Powell described the Democratic presidential nominee as a potential "transformational" political figure.

That may or may not be true. There is little doubt, however, that he has transformed political fund-raising for national elections. From now on, it will be impossible to ignore the Internet techniques Obama has exploited to raise record-breaking amounts of money.

The Obama campaign raised $150 million in September, twice as much as in August. By some estimates, Obama is outspending Republican Sen. John McCain by about 4 to 1 nationwide in advertising. That's because McCain opted to use the public-financing system, which gives candidates $84 million but prohibits spending above that level from the convention to Election Day.

In a sense, this is too bad. Instead of raising the level of discourse, spending more money on political advertising seems only to raise the noise level and the negativity of campaigns. But it is pointless to indulge in nostalgia about the need to limit spending or keep a lid on raising funds.

The 2008 campaign has crippled the public-financing system in presidential races. No candidate will want to accept public funding in the future if it comes with spending limits that give rivals who rely on private money a potentially huge advantage.

Unlimited spending could be dangerous, as McCain has said. Before rushing headlong to update public financing, however, lawmakers should keep in mind what public financing was all about and what the First Amendment limitations are.

■ "The major evil associated with rapidly increasing campaign expenditures is the danger of candidate dependence on large contributions."

That's what the Supreme Court said in upholding the public-financing law in Buckley vs. Valeo. Large contributions, not the total amounts raised, are the proper targets of limitations because of their corrupting potential, the court said. In the case of the Obama campaign, with money raised in small individual amounts, the corrupting influence would not seem to be a factor.

■ The court noted that the law should not aim to level the playing field among candidates insofar as spending. "Equalization," it said, might handicap candidates who lack name recognition or exposure.

■ "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."

Put another way: If voters accept negative campaigns, that's what they'll get. That is as true today as it was more than 30 years ago when the court made its observation.