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The Regulation of Electoral Financing(5) |
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(3) The Donations/Expenditure Distinction
At the heart of the American jurisprudence in this area is the notion that differential treatment should be applied to donations to candidates and parties on the one hand, and actual campaign expenditure on the other.103 The Green Paper treats them as separate policy options.104 As the result in Buckley demonstrates, the Supreme Court in that decision was prepared to validate the former, but not the latter, under First Amendment principles.105 This distinction has apparently been retained, at least by name, although some commentators see in the very recent cases an actual (if not formal) departure from the Buckley dichotomy:
Randall re-affirmed the Court's continued adherence to the contribution-expenditure distinction, which has long been at the heart of our campaign finance jurisprudence, while demonstrating that a majority of the Court rejects the distinction.106
Perhaps the key passage in terms of the explanation of the Buckley court's distinction between the two kinds of limits is this one:
By contrast with a limitation upon expenditures for political expression, a limitation upon the amount that any one person or group may contribute to a candidate or political committee entails only a marginal restriction upon the contributor's ability to engage free communication. A contribution serves as a general expression of support for the candidate and his views, but does not communicate the underlying basis for the support � A limitation on the amount of money a person may give to a candidate or campaign organisation thus involves little direct restraint on his political communication, for it permits the symbolic expression of support evidenced by a contribution but does not in any way infringe the contributor's freedom to discuss candidates and issues. While contributions may result in political expression if spent by a candidate or an association to present views to the voters, the transformation of contributions into political debate involves speech by someone other than the contributor.107
I must agree with Burger CJ who dissented from this view in Buckley, in invalidating both the donation limit and expenditure limit. Too much should not be made of the distinction. The donations are intended to be expended, and are expended, by the candidate in communicating a political view. This communicated view is presumably broadly similar to the political view with which the donor agrees. On one view, we should see the candidate as the medium through which the political views of his/her donors are communicated. In my view, whether the donor speaks directly to the people, or indirectly through candidates he/she supports, both are political speech and should be entitled to the same protection.108
One also wonders about the constitutional purpose behind the distinction - the effect of it is to allow limits on donations but not to limit total spend. It is submitted that one should look at the effects and consequences when considering the constitutionality of provisions and the acceptability of suggested distinctions. This distinction is flawed because the effect of allowing limits on donations will, all other things being equal, end up limiting campaign expenditure. This was exactly the thing the Supreme Court said was unacceptable. It is true that limiting donations might cause candidates to cast the net further afield in terms of donations, but this is an option open to candidates whether or not limits exist, so I dismiss it as a 'red herring' in terms of justification of donation limits.109 I submit that, given the High Court's acceptance that communication can be non-verbal, the political communication inherent in donating to a candidate or political party is just as valuable in terms of representative government as the ability of a candidate to spend money to communicate the political ideas and views of themselves, their party and those whom they represent.
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